Protecting Property Rights, Preserving Federalism and Saving Wetlands

Studies | Environment

No. 291
Wednesday, October 25, 2006
by Daniel R. Simmons, J.D. and H. Sterling Burnett, Ph.D.


Notes

  1. Wetlands: Their Use and Regulation (Washington, D.C.: U.S. Congress, Office of Technology Assessment, PB84-175918, March 1984), pages 37-38.
  2. Thomas E. Dahl, "Wetlands Losses in the United States , 1780s to 1980s," U.S. Department of the Interior, Fish and Wildlife Service, 1990, page 6.
  3. Leovy v. U.S. , 177 U.S. 621, 636 (1990).
  4. Thomas E. Dahl, "Status and Trends of Wetlands in the Conterminous United States 1986 to 1997," U.S. Department of the Interior, Fish and Wildlife Service, 2000, page 9.
  5. While commonly known as the Clean Water Act, when it passed in 1972 the Act was titled the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 47 (1972).
  6. CWA § 301 & 502(12); 33 U.S.C. § 1311, 1362(12) (2000).
  7. CWA § 502(7); 33 U.S.C § 1362(7) (2000).
  8. 33 C.F.R. § 209.120(d)(1) (1974).
  9. 33 C.F.R. § 209.260(e)(1) (1974).
  10. 392 F.Supp. 685 (D.D.C 1975).
  11. Ibid.
  12. See 33 C.F.R. § 323.2 (1978).
  13. 33 C.F.R. § 323.2(a)(5) (1978). A regulatory definition of wetlands emerged tied to the existence of certain soil types and moisture-loving vegetation along with brief periods of coverage by water — as little as seven days in the early definitions. See " Corps of Engineers Wetlands Delineation Manual," U.S. Army Corps of Engineers, Environmental Laboratory, Technical Report Y-87-1, January 1987. Available at http://www.wetlands.com/regs/tlpge02e.htm.
  14. Clean Water Act, 33 U.S.C. §1251 et seq. (1977). Available at http://www4.law.cornell.edu/uscode/html/uscode33/usc_sec_33_00001251----000-.html
  15. The "Migratory Bird Rule" is not a rule, rather it is an interpretation. As the Supreme Court explained in Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, 531 U.S. 159 (2001), the "Migratory Bird Rule" was issued "without following the notice and comment procedures outlined in the Administrative Procedures Act."
  16. Final Rule for Regulatory Programs of the Corps of Engineers, 51 Fed. Reg. 41206, 41,217 (1986).
  17. "Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of the Section 404 Program and the Application of the Exemptions Under Section 404(F) of the Clean Water Act," U.S. Environmental Protection Agency and U.S. Department of the Army, January 19, 1989. Available at http://www.epa.gov/owow/wetlands/guidance/404f.html ; and "Section 404 of the Clean Water Act: How Wetlands Are Defined and Identified," U.S. Environmental Protection Agency, Wetlands Fact Sheet, last updated February 22, 2006. Available at http://www.epa.gov/owow/wetlands/facts/fact11.html.
  18. Kent Jeffreys, "Progressive Environmentalism: Principles for Regulatory Reform," National Center for Policy Analysis, Policy Report No. 194, June 1995.
  19. U.S. Army Corps of Engineers, "Wetlands Enforcement Initiative," Regulatory Guidance Letter , No. 90-9, December 17, 1990.
  20. R.J. Smith, "Clean Water Act Sanity on the Horizon?" Human Events Online , July 3, 2006. Available at http://www.humanevents.com/article.php?id=15854.
  21. Ibid.
  22. Kent Jeffreys, "Progressive Environmentalism: Principles for Regulatory Reform."
  23. R.J. Smith, "Clean Water Act Sanity on the Horizon?"
  24. For instance, James V. DeLong, Property Matters (New York: The Free Press, 1997); Mark L. Pollot, Grand Theft and Petit Larceny (San Francisco: Pacific Research Institute for Public Policy, 1993); William Perry Pendley, It Takes a Hero (Bellevue, WA: Free Enterprise Press, 1994); and Karol J. Ceplo , "Land-Rights Conflicts in the Regulation of Wetlands," in Bruce Yandle, ed., Land Rights (Lanham, Md: Rowman and Littlefield, 1995).
  25. Kent Jeffreys, "Whose Lands Are Wetlands?" Journal of Regulation and Social Costs, March 1992, pages 33-59.
  26. National Mining Association v. U.S. Army Corps of Engineers , 145 F. 3d 1399 (DC Cir., 1998) .
  27. Ibid., at 1404.
  28. Though President Clinton finalized the rule in late 2000, President Bush delayed the implementation date in order to review the regulation. On April 16, 2001, the Bush administration finalized the Clinton proposal. Federal Register 66, no. 11 (17 January 2001): 4,549. Two groups are pursuing a legal challenge to the new regulation — the National Association of Homebuilders and the National Stone, Sand and Gravel Association.
  29. 531 U.S. 159 (2001).
  30. SWANCC , 531 U.S. at 166.
  31. See SWANCC , 531 U.S. at 171–72; United States v. Riverside Bayview Homes, Inc. , 474 U.S. 121, 133 (1985).
  32. See SWANCC , 531 U.S. at 172.
  33. Ibid .
  34. See SWANCC , 531 U.S. at 174.
  35. See SWANCC , 531 U.S. at 162, 174.
  36. Rapanos Brief at 5-6 and Government Reply Brief to Rapanos at 10–13.
  37. Rapanos Brief at 6.
  38. Government Reply Brief to Rapanos at 14.
  39. See United States v. Rapanos , 235 F.3d 256, 260 (6th Cir. 2000) (citing the lower court).
  40. Rapanos appealed to the Supreme Court. The Supreme Court did not hear his case in 2001, but instead remanded it to the lower court for reconsideration in light of the Supreme Court's ruling in SWANCC — though it eventually wound up back before the Supreme Court.
  41. Carabell Brief at 3, 6 and 7-8.
  42. A satellite view of the land is available at http://tinyurl.com/gqlkd. The Carabell's land is the forested land shaped like an inverted right triangle with Donner Road forming one of the sides.
  43. Corps Reply to Carabell at 10.
  44. Rapanos et ux., et al. v. United States , 126 S.Ct. 2208, 2214 (2006).
  45. Ibid .
  46. David Loos, "Wetlands: Supreme Court Decision Could Force Agency Rulemaking, Experts Say," E&E News PM, June 20, 2006.
  47. Rapanos at 2221.
  48. Ibid., at 2252.
  49. Gail Bingham et al., ed., "Issues in Wetlands Protection: Background Papers Prepared for the National Wetlands Policy Forum," Conservation Foundation, 1990, page 24.
  50. Aside from the CWA there are a variety of federal programs that protect wetlands, including: the Food Security Act's Swampbuster requirements, Wetlands Reserve Program (Dept. of Agriculture), grant programs such as Partners in Wildlife (administered by the USFWS), the Coastal Wetlands Restoration Program (administered by the National Marine Fisheries Service), the State Grant, Five Star Restoration, National Estuary Programs (administered by EPA), and the Migratory Bird Conservation Commission (composed of the Secretaries of Interior and Agriculture, the Administrator of EPA and Members of Congress). 68 Fed. Reg. 1991, at 1995.
  51. H. Sterling Burnett, "Protecting the Environment through the Ownership Society – Part One," National Center for Policy Analysis, Policy Report No. 282, January 2006.
  52. Thomas E. Dahl, "Status and Trends of Wetlands in the Conterminous United States 1986 to 1997," U.S. Department of the Interior, Fish and Wildlife Service, 2000.
  53. U.S. Department of the Interior, "The Impact of Federal Programs on Wetlands — Volume II," March 1994. Available at http://www.doi.gov/oepc/wetlands2/index.html; and Thomas E. Dahl, "Status and Trends of Wetlands in the Conterminous United States 1986 to 1997," U.S. Department of the Interior, Fish and Wildlife Service, 2000.
  54. James Madison, "The Union as a Safeguard Against Domestic Faction and Insurrection (cont'd)," The Federalist Papers, No. 10.
  55. James Madison, Federalist Papers, No. 10.
  56. See, for example, Richard B. Stewart, "Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy," Yale Law Journal , Vol. 86, May 1977, pages 1196, 1211-12; Richard B. Stewart, "The Development of Administrative and Quasi-Constitutional Law in Judicial Review of Environmental Decisionmaking: Lessons from the Clean Air Act," Iowa Law Review , Vol. 62, 1977, pages 713, 747; Craig N. Oren, "Prevention of Significant Deterioration: Control-Compelling Versus Site-Shifting," Iowa Law Review , Vol. 74, 1988, pages 1, 29; Scott R. Saleska and Kirsten H. Engel, "Facts Are Stubborn Things: An Empirical Reality Check in the Theoretical Debate over the Race-to-the-Bottom in State Environmental Standard-Setting," Cornell Journal of Law and Public Policy , Vol. 8, 1998, page 55.
  57. See, for example, Richard L. Revesz, "Federalism and Environmental Regulation: A Public Choice Analysis," Harvard Law Review , Vol. 115, 2001, page 553; Jonathan H. Adler, "Let 50 Flowers Bloom: Transforming the States into Laboratories of Environmental Policy," Environmental Law Reporter , Vol. 31, 2001, page 11,284; Jonathan H. Adler, "The Ducks Stop Here? The Environmental Challenge to Federalism," Supreme Court Economic Review , Vol. 9, 2001, pages 205, 223-231; Richard L. Revesz, "The Race to the Bottom and Federal Environmental Regulations: A Response to Critics," Minnesota Law Review , Vol. 82, 1997, page 535; Richard Revesz, "Federalism and Environmental Regulation: A Normative Critique," in John Ferejohn and Barry R. Weingast, eds., The New Federalism: Can the States Be Trusted? (Stanford: Hoover Press, 1997), pages 97-127; Richard L. Revesz, "Federalism and Environmental Regulation: Lessons from the European Union and the International Community," Virginia Law Review , Vol. 83, 1997, page 1331; Wallace E. Oates, "On Environmental Federalism," Virginia Law Review , Vol. 83, 1997, page 1321.
  58. Richard Revesz, "Federalism and Environmental Regulation: A Normative Critique," in John Ferejohn and Barry R. Weingast, eds., The New Federalism: Can the States Be Trusted? (Stanford: Hoover Press, 1997), pages 97-127, 105. States also compete on taxes, infrastructure, the skill of local workers, local workplace regulations and so forth.
  59. Deborah Jones Merritt, "Commerce!" Michigan Law Review , Vol. 94, 1995, pages 674, 706.
  60. Jonathan H. Alder, "The Ducks Stop Here? The Environmental Challenge to Federalism," Supreme Court Economic Review , Vol. 9, 2001, pages 205, 228.
  61. Jonathan H. Alder, "The Ducks Stop Here?" pages 228-229.
  62. SWANCC , 531 U.S. at 167.
  63. State governments are also helping to preserve wetlands through federal grants and by working with federal agencies. For example, the EPA's Wetland Program Development Grants are available to state and local governments for improving wetland program capacities. The U.S. Department of Justice and other federal agencies cosponsored a national wetlands conference with the National Governors Association Center for Best Practices, National Conference of State Legislatures, the Association of State Wetlands Managers and the National Association of Attorneys General. EPA also is providing funding to the National Governors Association Center for Best Practices to help states develop policies and take action to protect intrastate isolated waters. 68 Fed. Reg. 1991, at 1995.
  64. "Special Report: The Public Benefits of Private Conservation," in Environmental Quality: The Fifteenth Annual Report of the Council on Environmental Quality (Washington, D.C.: CEQ, 1984), pages 387-394.
  65. Land Trust Alliance , "About Land Trusts." Available at http://www.lta.org/aboutlt/index.html.
  66. Ducks Unlimited, "National Fact Sheet," April 2006. Available at http://www.ducks.org/media/News/_documents/National.pdf.
  67. National Audubon Society, "Audubon Turns 100!" Press Release, January 5, 2005.
  68. Gale Norton and Anne Veneman, "There's More Than One Way to Protect Wetlands," New York Times , March 12, 2003.
  69. See, for example, Robert J. Smith, "Viansa Winery Wetlands," Competitive Enterprise Institute, June 1, 1997, examining Viansa Winery and their efforts to create a private wetland. Available at http://www.cei.org/gencon/025,01363.cfm. See also Robert J. Smith, "Cypress Bay Plantation, Cummings, South Carolina , " Competitive Enterprise Institute, Issue Analysis, December 1, 2000, which tells about the private conservation efforts of Skeet Burris on his plantation, including wetlands creation.
  70. U.S. Environmental Protection Agency and U.S. Department of Agriculture, "Clean Water Action Plan: Restoring and Protecting America 's Waters , " EPA-840-R-98-001, February 1998.
  71. See, for example, Jonathan Tolman, "Swamped: How America Achieved 'No Net Loss,'" Competitive Enterprise Institute, April 1997. See also Courtney LaFountain, "Saving Wetlands without Soaking Landowners," Center for the Study of American Business, Policy Brief No. 164, 1996.
  72. See Jonathan Tolman, "Swamped: How America Achieved 'No Net Loss.'"
  73. U.S. Environmental Protection Agency and U.S. Department of Agriculture, "Clean Water Action Plan: Restoring and Protecting America 's Waters."
  74. Gale Norton and Ann Veneman, "There's More Than One Way to Protect Wetlands," New York Times , March 12, 2003.
  75. Jonathan Tolman, "Swamped: How America Achieved 'No Net Loss.'"

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