NCPA - National Center for Policy Analysis


October 25, 2006

The U.S. Army Corps of Engineers and the Environmental Protection Agency have pursued civil and criminal prosecutions for small, technical violations of the 1972 Clean Water Act in order to intimidate property owners and developers into compliance.  Ironically, the complexity of the regulatory process and the unsettled state of the law makes compliance difficult.  In the process, the Corps and the EPA have arguably stepped on the constitutional prerogatives of the states to control land use within their borders and the rights of individuals to control their property, say Daniel R. Simmons of the American Legislative Exchange Council and H. Sterling Burnett, a senior fellow with the National Center for Policy Analysis. 

The current position of the Corps and the EPA goes beyond clear congressional intent and, arguably, what the Constitution allows.  But even for those wetlands over which the federal government has legitimate authority, evidence indicates that states and private parties are more than capable of protecting them, say Simmons and Burnett. 

For example: 

  • Ducks Unlimited has preserved over 10 million acres of wildlife habitat; on the East Coast, about 11,000 private duck clubs protected 5 million to 7 million acres of wetlands from destruction.
  • Over 1,200 land trusts have protected more than 6.2 million acres through donation or purchase of the land in fee simple or conservation easements.
  • Under the U.S. Fish and Wildlife Service's Partners for Wildlife Program, landowners restored 48,800 acres of wetlands in 2001 and 65,000 acres in 2002.

With so many ways to protect wetlands, there is ample reason to believe they will continue to receive protection, even if the regulatory scope of the Clean Water Act is limited, say Simmons and Burnett. 

Source: Daniel R. Simmons and H. Sterling Burnett, "Protecting Property Rights,

Preserving Federalism and Saving Wetlands," National Center for Policy Analysis, Policy Report No. 291, October 2006.

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