In Too Deep: Wetland Rules Move Toward Local Control

Freeman Op-Ed in National Review Online<?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” />

The U.S. Army Corps of Engineers is in hot water again over wetlands. They announced on Wednesday (August 8) several proposed modifications to cede more control to the local level, giving more responsibilities to staff in district offices. Environmental groups met the announcement with their usual high-pitched complaints. But putting more responsibility for the care of wetlands on the local level is the right decision, and one the Corps should take much farther.

The Corps hopes these modifications will speed up and ease the permitting process. Any move in that direction would be a welcome relief from the existing onerous permit system. The Corps routinely denies permits to landowners for modifying wetlands, even when such activities have minimal environmental impact. While the permitting program requires permits to be approved or rejected within 60 days, the average wait is over a year.

Permit delays, however, are only one aspect of the wetland rules troubled regime. As there is no federal definition of “wetland,” the permit rule rests on the Clean Water Act's authority over “navigable waterways.” But, in practice, “navigable waterways” have included land where only a toy boat could cruise the occasional puddle. While the Corps allows development of some lands that are clearly wetlands, they have also heavily regulated some seemingly dry land. One landowner violated the rules and served time in prison. His crime was cleaning up thousands of old tires and car parts from a piece of dry land, then trying to place clean fill dirt on it to build a building.

One wonders why the environmentalists are against lessening federal involvement in wetlands regulation, when the feds' wetlands involvement has often been like water to a drowning man. For many years, the federal government had an active policy to destroy wetlands. The Swampland Act of 1849 gave away land on the condition that new owners drain the properties. Government programs, agricultural subsidies, the Corps channelization projects, and a Supreme Court decree that wetlands were “the cause of malarial and malignant fevers … police power is never more legitimately exercised than in removing such nuisances,” all joined together to destroy almost half the nation's wetlands.

The feds did not join the wetland conservation movement until the mid 1970's. While they dallied, local entities acted. Prior to 1970, eleven inland states and every coastal state, save Texas, already had wetlands protection in place. Long before the states regulated wetlands, private organizations like the National Audubon Society and Ducks Unlimited worked to protect wetlands. They still do, along with groups like Delta Waterfowl and Chesapeake Wildlife Heritage.

Despite the habitual complaining of environmentalists, the Corp's proposal to cede some decision-making to those at the local level may have positive effects. But it is not likely to effect great change. The wetlands regime needs a total overhaul, where the federal government transfers more control to the state and local levels and replaces command-and-control regulations with voluntary incentive programs.

Local authorities are not fish out of water. They're closer to the problem and likely to know more about it than a Washington bureaucrat. Locals have to live and work near the consequences of their decisions. State governments, many of which have more stringent environmental controls than federal mandates require, have proven themselves to be a better source of innovation and experimentation, and altogether more capable of assessing and controlling damage than the federal government.

The murky issue of wetlands conservation runs dirty and deep, particularly when the Corps gets in over its head. The sure way for them to keep their head above water is to get out of the business of regulating wetlands, allowing those at the local level to make the decisions.

Copyright © 2001 National Review Online