[Congressional Record Volume 140, Number 51 (Tuesday, May 3, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WETLANDS AND PROPERTY RIGHTS
Mr. FAIRCLOTH. Mr. President, as a life-long farmer and landowner I
want to bring to the Senate's attention a letter recently written to
Representative Norman Mineta by a number of groups interested in
preserving the right to private ownership of land.
Mr. President, this letter was written in response to a ``Dear
Colleague'' sent out by Mr. Mineta sharing his views on the property
rights debate. I join these groups in challenging his view that
property rights advocates are somehow exaggerating the issue.
Like I said, I have farmed and tended land all of my life. Never in
that time has the Federal Government been more intrusive and
bureaucratic in their approach to private property and landowners. The
rules and regulations imposed on the modern farmer are enough to make
him feel as though he were a sharecropper for Uncle Sam.
As the letter to Mr. Mineta details, the Federal wetland program is
absolute disaster. A new study concluded that the average permit
application takes 373 days to complete. That's 1 year, 1 week, and 1
day--all to find out it you are approved to use your own land as you
see fit.
No one in the Congress will deny that certain wetlands need
protection. But I would like Mr. Mineta feel what a small farmer must
feel when he must hire a trained scientist to come on his land to tell
him exactly what is and what isn't a wetland. Or, more precisely, how
much of his land is or is not subject to Federal control. It is simply
unjustifiable to deny a landowner use of his property--without
compensation--simply because it falls under some broad scientific,
bureaucratic definition of a ``wetland.''
Let us fact it, Mr. President. The wetland program is nothing but a
self perpetuating land grab by the Federal Government on behalf of
environmental zealots--and their yes men in Congress--who are out to
deny working Americans of their constitutionally protected right to
private property. Indeed, it is a sad irony that the very groups who
push the antiproperty agenda survive off wealth created from the same
rights they now seek to destroy.
Mr. President, I have taken a particular interest in the penalties
assessed farmers if they violate any one of the numerous rules and
regulations associated with the Federal wetland program. I have found
that, as it now stands, a farmer faces fines of $25,000 per day/per
violation if he steps out of line. That is way out of line with common
sense. It is unfair in the extreme to subject small farmers to the same
penalties as those faced by big industry polluters. But is not
surprising given the excesses which have characterized the wetland law.
Mr. President, the Clean Water Act is up for reauthorization this
year. Like several other environmental laws, it is having trouble
getting to the floor for the very reason Mr. Mineta wrote his Dear
Colleague. The fact is, there are a lot of Senators and Representatives
on both sides of the aisle who have had their fill of Federal land
grabs and environmental regulations of dubious benefit. But sooner or
later, Mr. President, we'll have our say, and if the American people
are properly represented we will roll back much of this garbage.
Mr. President, I ask unanimous consent that the following letter from
``The Farm Project'' be entered into the Record at the conclusion of my
remarks.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
The Farm Project,
Arlington, VA, April 27, 1994.
Hon. Norman Mineta,
House of Representatives, Rayburn House Office Building,
Washington, DC.
Dear Mr. Chairman: On March 10, 1994 you circulated a
``Dear Colleague'' letter to the members of the House of
Representatives regarding the concept of takings, and what
you deem as the ``great deal of confusion'' over the takings
and property rights issue. Unfortunately, your letter does
not ``set the record straight'' on takings, but rather adds
to the confusion.
What you refer to as a ``new'' emphasis on property rights
among property owners, certain Members, agricultural,
environmental, and recreational groups, is neither
``dangerous'' nor ``radical'' nor does it ``distort'' the
Constitution. Rather it is a just and reasoned response to
radical bureaucratic overreach.
Your letter admonishes Members to resist arguments and
proposals regarding protection of property rights ``likely to
be presented to us during our consideration of the Clean
Water Act reauthorization.'' You further write, ``We as
legislators can and must sort out when the public interest
requires an activity on private property to be restricted or
prohibited for the protection of the public . . . It is our
responsibility to make that distinction, and we should do so
in our deliberations on the Clean Water (sic).''
Good intentions to the contrary, the history of the Clean
Water Act and wetlands regulation, which has aroused the ire
of property owners, is checkered with bureaucratic excess and
Congressional inaction. Indeed, the reauthorization you
mentioned was scheduled for consideration in 1992.
The Federal Water Pollution Control Act was passed by
Congress in 1972--22 years ago. In that legislation, under
section 404--the current section under which wetlands permits
are granted--was a prohibition on discharging dredged fill
material into navigable waters without a waiver. The land-
grabbing bureaucratic interpretation of that Act of Congress
began in earnest just three years later.
In 1975, the Army Corp. of Engineers redefined
``navigable'' waters to mean all waterways. In 1977, the Corp
again extended the definition of waterways to include
wetlands. A decade later, in 1987, the definition of a
wetland was expanded to include land that did not necessarily
have to have visible water on it for up to 50 weeks per year.
We are sure you would agree that water that puddles up for no
more than 14 days is difficult to navigate.
The changes do not stop there however. Last year, the
definition of ``discharging into'' was revised to include
activities such as clearing and excavating. Furthermore,
administration of the 404 permit program is very much indeed
denying property owner's their rights to use their land. In
one specific case, a property owner waited more than a year
for a wetland permit that involved a piece of land small the
one-half of the size of a ping-pong table; the permit
application was withdrawn after this bureaucratic holdup.
While federal regulators can claim, because of the
withdrawal, that the permit was not denied, no one can claim
that this property owner was given fair consideration.
The Army Corp of Engineers' regulations specify a 60-day
standard for evaluation of 404 permits. Yet the average wait
for an individual 404 permit, according to a study conducted
by the National Wilderness Institute (NWI) that will be
released next month, is 373 days! Or one year, one week, and
one day. Indeed, NWI's study will also show that 93 percent
of all individual permit applications exceed the 60 days
standard.
Like the case described above, 63 percent of the individual
applications that reached some sort of conclusion in 1992
were due to their withdrawal. Moreover, like the above 25
percent involved less than one-quarter of an acre, and more
than half involve less than half-an-acre.
It is cases such as these that demand that property rights
considerations must be given in the formulation of federal
statutes and regulations. With all due respect, contrary to
the assertions in your letter, protecting property rights
will not force any local community to compromise its
standards against lewd behavior, it will not foster treason,
nor will it lead to the exploitation of laborers.
Furthermore, protecting property rights will not force the
federal government to ``pay property owners not to break the
law'' as your letter says.
You write that ``this new theory of what constitutes a
taking'' would result in a cost ``beyond measuring.'' It is,
however, the status quo which is costly. Indeed, the City of
Anchorage, Alaska, commissioned a study to measure these
costs.
The City of Anchorage commissioned a study of the
Environmental Protection Agency's latest regulation regarding
wetlands. The study encompassed the President's home state of
Arkansas, and concluded that Arkansas could lose up to $138
million in lost property tax revenue in the first year.
Nationwide, local governments could lose up to $6.9 billion.
As a former mayor, you no doubt recognize that such a burden,
coupled with other federal unfunded mandates, is
devastating to local communities; particularly rural
communities.
In the case of wetland takings, the cost of compensation
for private landowners would not be a budget buster. For
example, H.R. 1330--legislation to compensate landowners for
wetland takings--includes a definition of high value (for
Class A) wetlands that would apply to less than 9 million
acres of privately owned wetlands or 11 percent of all
wetlands which could potentially be developed, according to
the Congressional Budget Office (CBO). With the current
average annual wetland conversion rate of 108,000 acres per
year, a compensation provision such as that in H.R. 1330
would require compensation for slightly more than 12,000
acres per year. According to the CBO, the acquisition of
wetlands costs between $1,000 and $1,700 per acre. Therefore,
the budgetary costs for these compensations would range from
$13.5 to $20.3 million a year.
Finally, Mr. Chairman, protecting property rights does
not--and has never--limited the government's ability to abate
a nuisance by property owners such as burning mountains of
used tires on their property, fouling their neighbor's air
and flooding creeks with molten oil from the burning heap as
you so descriptively write in your letter. Moreover, under a
market system of property rights, one's authority over his or
her property cannot be exercised to change the physical
nature of another's property.
The government should seek to protect and encourage private
property and the stewardship of our natural resources, rather
than further encroach upon these Constitutionally granted
rights. A loss of private property to the growing appetite of
bureaucratic control, as in the case of wetlands, will lead
first to the exploitation of property owners, and then
without doubt, to the exploitation of our precious resources.
Sincerely,
Dave Juday, Director, FARM Project of the Alexis de
Tocqueville Institution;
Robert E. Gordon, Jr., Executive Director, National
Wilderness Institute;
Robert L. Vice, President, California Farm Bureau
Federation;
John L. Braly, Executive Vice President, California
Cattlemen's Association;
Jay B. Wilson, Executive Vice President, California Wool
Growers Association;
Fred L. Smith, Jr., President, Competitive Enterprise
Institute;
Nancie G. Marzulla, President and Chief Legal Counsel,
Defenders of Property Rights;
Myron Ebell, Washington Representative, American Lands
Rights Association;
Margaret Ann Reigle, Chairman, Fairness to Land Owners
Committee;
David Rothbard, President, Committee for a Constructive
Tomorrow;
Roger Pilon, Senior Fellow and Director, Center for
Constitutional Studies, The Cato Institute;
John C. Shanahan, Environmental Policy Analyst, The
Heritage Foundation;
John Baden, President, Foundation for Research on Economics
and the Environment;
John C. Goodman, Ph.D., President, National Center for
Policy Analysis.
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