[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.

                          ____________________