Federal wetlands policy is soaking landowners


THE DEFINITION of a "wetland" might seem like an obscure and unimportant detail buried harmlessly in mountains of government regulations. In reality, the federal government's current definition affects most landowners in the country, depriving them of the use of their property without compensation.

Under federal regulations, for example, a Colorado farmer was indicted for redirecting a river, which had been diverted onto his land, back into its original bed. A Pennsylvania man was jailed for cleaning up tires in his backyard and using fill dirt as the base for a garage. And in Juneau, Alaska, construction on a private homeless shelter was held up for more than a year because the building site -- in the middle of a city block -- was declared a wetland.

These are not isolated cases. By one appraisal, 104 million acres, or 5 percent of all land in the lower 48 states, now is officially classified as wetlands. The Soil Conservation Service calculates that as many as 70 million acres of farmland are subject to federal control. Others estimate that most of the eastern United States, and more than 40 percent of California, fit the government's current definition of a wetland.

There are two problems with federal wetlands policy. First, the definition of a wetland is imprecise, allowing many plots of essentially dry land to be classified as "wet." Currently, even if a plot of land is dry for 358 days a year, it can be a target of government regulators.

Second, the loose definition allows federal regulators to expand the "wetlands" designation beyond what the Clean Water Act of 1977 intended. The act, which properly seeks to limit water pollution, allows the government to regulate pollutants dumped into wetlands if there is a danger that they will seep into other bodies of water.

But over the years, the Army Corps of Engineers and the EPA steadily have transformed the Clean Water Act into a "Wetlands Protection Act." Any time the agencies think a parcel of land is beneficial to wildlife, they arbitrarily apply the wetlands definition to prohibit the owner from using the land.

This abuse of authority by federal regulators affects all Americans, not just those who own land. Wetlands regulations raise housing prices by reducing available land; permits required for developers delay state and federal housing projects, raising the cost to taxpayers; and the reduction of farmable land inflates food prices.

Congress has never passed a "wetlands protection" bill. If wetlands merit protection, Congress and the Bush administration should draw up laws tailored specifically to that task.

Tightening the definition of wetlands would be a step in the right direction. For example, one qualification of a wetland is the presence of one of 7,000 "indicator species" of plants. However, since many of these plants grow equally well on dry land, many wetlands are, in fact, not wetlands at all. The list of "indicator species" should be confined to those that grow only in a wet environment.

If wetlands deserve special protection, the government either should purchase the land or pay the owners to conserve it -- instead of using the Clean Water Act to deny landowners permits for the use of their own property. To raise money for these purchases, the federal government -- which owns nearly a third of all U.S. land -- could sell some of its less environmentally sensitive property. This would achieve President Bush's goal of "no net loss of wetlands," while achieving the equally important goal of "no net loss of private property."

William G. Laffer III is a senior policy analyst at the Heritage Foundation, Washington, D.C.

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