Attack of the Wetlands Enforcers

By Jonathan Tolman, environmental policy analyst with the Competitive Enterprise Institute (originally published in the July 18, 1994, Wall Street Journal):

Last week the government released a massive five-year study showing that the U.S. is losing only 66,000 acres of wetlands a year. This may come as a surprise to EPA Administrator Carol Browner, who claimed before Congress in May that the figure was 300,000 acres. The EPA and its enforcers have been treating wetland regulation as an environmental crisis. Maybe someone should tell them the crisis is over -- before they do any more damage.

To many property owners and entrepreneurs, the most troublesome government agency is the Army Corps of Engineers, which compels the observance of wetland regulations. "The IRS is a walk in the park compared to the corps," says John Piazza, president of Piazza Construction Co. In 1991, Mr. Piazza obtained a local government permit to build a ministorage facility on a seven-acre tract of land in Mount Vernon, Wash. But before he could begin construction, "wetlands" were discovered on the site.

Wetlands are technically defined as swamps, bogs, marshes or "similar areas." Mr. Piazza's wetlands supposedly fit into the last category. They were in three small sections and totaled less than an acre. In any case, Mr. Piazza designed his facility so that its construction would affect only 0.18 of an acre of wetlands, small enough for him to apply for one of the corps' exemptions, known as a "nationwide permit."

The corps had other ideas, however. After several delays, bureaucrats from the corps visited the site and decided that the wetlands were adjacent to a "water of the U.S.," and thus not "isolated," as the nationwide permit demands. The corps determined that Mr. Piazza would have to apply for an individual permit. This would require an extensive analysis of alternatives, an updated site plan, a mitigation plan, and consultation with two other federal agencies, not to mention public notice and comment.

As Mr. Piazza waited for his permit, the corps adopted a different manual for identifying wetlands. (The "similar area" category required 150 pages of explanation.) Under the new definition, his wetlands added up to a mere 0.089 of an acre. But even this did not release Mr. Piazza from the corps' regulatory grip. To date he has spent more than $25,000 responding to the government's efforts to preserve his wetlands. At an average cost of nearly $300,000 a wetland-acre, this is costly conservation by any calculation.

The current regulations, as interpreted by the Army Corps of Engineers, tend to treat every wetland as if it were a national treasure. During his three-year wait for a permit, Mr. Piazza gave one of his U.S. senators a tour of his property in an attempt to explain his problem. At one point during the tour the senator asked how long it would take them to get to the wetland. Mr. Piazza replied, "You're standing in it."

The biggest tragedy of Mr. Piazza's situation is that draconian command-and-control wetland regulations are no longer necessary. In the past 10 years the federal government has made dramatic changes in its wetland policy. The result is that the U.S. is currently RESTORING more wetlands every year than it is converting to other uses. (It does this, for example, by buying fallow land from farmers and flooding it.) The U.S. has effectively achieved what former President Bush repeatedly called for: "no-net-loss" of wetlands.

In 1994, the government's top three wetland restoration programs will restore a combined total of 157,000 acres of wetlands. At the same time, data from the government's National Resource Inventory conclude that the U.S. will convert only 66,000 acres of wetlands to other uses. In other words, by the end of 1994 there should be tens of thousands more acres of wetlands than there were at the beginning.

What is more, government agencies have developed cost-effective ways to restore large tracts of wetlands without trampling on the rights of property owners. For example, the Agriculture Department's Wetland Reserve Program will restore 75,000 acres of wetlands for less than $1,000 an acre. This figure includes the cost of purchasing a permanent easement on the land to ensure that it remains a wetland.

It would have cost the Agriculture Department $89 to restore wetland acreage equivalent to what would be lost to Mr. Piazza's development. In contrast, Mr. Piazza and thousands of developers, home-builders and property owners across the country are wasting millions of dollars hiring experts, filling out permit applications, and paying loans and taxes while they wait for the corps to reach a decision.

Unfortunately, after three years of waiting, Mr. Piazza still does not have a permit. Unless Congress acts to change the broad wording of the 1972 Clean Water Act, the American people may have to wait even longer for rational wetland regulation.

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