A Sign of the Times

A Sign of the Times

September 20, 1994
Originally published in The Wall Street Journal

In the normally quiet little Gulf Coast town of Port Bolivar, Texas, federal bureaucrats are threatening to throw an old man in jail because he wanted to spend his last few years by the sea. Part of the story is told by the humiliating billboard-10 feet high, 20 feet across—that he is now forced to post in front of his house (see nearby). It announces to the world that he has sinned against the Army Corps of Engineers by depositing "illegal fill material" on his property and that he must now remove it, and "restore" the property, at his own expense.

The incident began when Marinus Van Leuzen, a 73-year-old immigrant from Holland, decided to build his retirement home on a fit of property he had owned for more than 20 years. Unfortunately for Mr. Van Leuzen, the Army Corps of

Engineers and the Environmental Protection Agency had other ideas. They considered his land "wetlands" and hauled Mr. Van Leuzen into court for violating Section 404 of the Clean Water Act.

Section 404, which the Corps cites as the authority to regulate wetlands, actually does not mention the word "wetland." It simply requires that a person obtain a permit before filling in a "navigable water" of the U.S. This, however, has not stopped the Corps from harassing Mr. Van Leuzen and hundreds of other Americans whose property is not a navigable water. Twenty years. of vigorous agency action, coupled with a spate of court decisions, have completely changed the original meaning of the statute. The federal wetlands regulatory program has taken on a life of its own.

As part of the court order against Mr. Van Leuzen, not only must he post the billboard ("six feet off the ground .. . facing Highway 87"), he must also put $350 a month into a special account for eight years. At the end of this eight years the money will be used to move his house. In effect, the government is forcing Mr. Van Leuzen to pay rent on a house that he already owns so that it can be relocated.

In addition, during the intervening years Mr. Van Leuzen must spend .a significant portion of his life savings to "restore" the land to it's "pre-adulterated" condition. Perhaps this punishment could be justified if Mr. Van Leuzen had destroyed thousands of acres of pristine Everglades. However, the land in question is less than half an acre and is situated 50 feet from Highway 87.

Ironically, the wetland had been "adulterated"• long before. Before Mr. Van Leuzen built his retirement home, the site was home to a muddy bait camp. A bait camp is a cross between a campground and a fishing bait store, complete with outdoor latrines and scattered beer cans. Most nearby residents considered the bait camp an eyesore; few, if any, regarded it as an ecologically valuable wetland.

Nevertheless, the Corps and the EPA treated Mr. Van Leuzen as if he had destroyed a national treasure. In preparing to prosecute him for building his house, several Corps employees spent the day with a video camera, hiding in a building across the street, spying on him.

Unaware that the microphone on the camera was recording their conversation, the cameraman said at one point: "O.K. I think I've got him." This was greeted with a chorus of, "All right!" "That's great!" and "Good! good!" from the other three Corps employees on the stakeout. One would have thought they were staking out a drug kingpin or mafia don.

A substantial problem with the current wetlands program is that it fails to consider the environmental value of wetlands. To most Americans the word "wetland" conjures up the image of a water-laden marsh, filled with saw grass or cattails, where great blue herons and snowy egrets stalk minnows and bull frogs in the shallow water. They basically think of a wildlife-rich ecosystem, with great diversity and ecological value.

Unfortunately, the wetlands definition of the Army Corps of Engineers says nothing about wildlife, nothing about diversity and absolutely nothing about ecological value. All the definition talks about is wetness.

If a piece of land gets wet and stays wet for more than a few weeks a year, then it's a wetland. The Corps treats all lands that meet this definition the same regardless of their actual value to society. It makes little difference whether the area is a stagnant mosquito pond the size of a ping-pong table or acres of pristine cypress swamp. A wetland is a wetland.

This one-size-fits-all approach to land-use regulation often leads to perverse results. The town of Tiverton, R.I., was forced to wait nearly two years for a permit from the Corps to fill in 44 square yards of wetland for a mosquito-control project. In another case, Hanover Construction Co. needed a permit to fill in 26 square feet of wetland caused by a leaking pipe in downtown Boise, Idaho. After waiting 450 days for the Corps to make a decision, the company gave up and withdrew its application.

What was destroyed in Mr. 'Van Leuzen's case was not the environment,but one old man's version of the American dream: a small place on the shore, where he could live his last few years gazing out to sea. But the Corps will not leave Mr. Van Leuzen alone. It is now charging him with contempt of court because he failed to consult with the Corps in replanting the vegetation for the wetland he is being forced to restore. The Corps doesn't like his plants and consequently Mr. Van Leuzen may end up spending his last few years behind bars. A bipartisan group of congressmen led by Rep. Jimmy Hayes (D, La.) has put together a bill that would require the Corps to classify wetlands, by their ecological value. Unfortunately, the Clinton administration is opposed to such classification, and has been blocking the Hayes bill.

Which raises the question: If wetlands shouldn't be regulated because of their ecological value, why does the administration want to regulate them at all?