Wetlands Regulatory Problems Are Far From OverBy Don Parrish
Federal wetlands regulators wrongly believe they have solved agriculture's many wetlands regulatory problems. For farmers, the ongoing battle regarding wetlands regulations and their impact on property rights is far from over.
Unfortunately, the government's assumption is based on a general lack of public outcry over the wetlands delineation issue. By wrongly assuming the wetlands problem has been solved, no one within the White House or even Congress seems open to true reform of the wetlands delineation process or lessening the impact wetlands regulations have on property owners.
While ignoring the need for property rights protections, the four federal agencies in charge of regulating U.S. wetlands – the Army Corps of Engineers, the Environmental Protection Agency, the U.S. Fish and Wildlife Service and the Natural Resources Conservation Service – are planning to adopt four changes to the wetlands regulatory program. In all likelihood, these changes will further tighten the agencies' collective grip on private land.
- Without public notice and comment, NRCS is expanding its list of wetlands soil types. As this list expands, areas and sites meeting the wetlands criteria also expand.
- The Fish and Wildlife Service – the keeper of an already broad and ambiguous wetlands plant inventory – is about to expand that list. As with the expanded list of wetlands soils, this expansion will increase federal wetlands jurisdiction without the benefit of public notice and comment.
- The four agencies are reviewing ways to integrate the findings and recommendations of the controversial National Academy of Sciences' wetlands study into their wetlands delineation policy. One recommendation would allow federal delineators to base wetlands determinations on only two criteria – soils and plants – enabling federal regulators to assume wetness. Farm Bureau believes the presence of water – not the assumption of water presence – should be the key factor in determining wetlands.
- The agencies have also begun implementing a method to assess wetlands by function. This approach recognizes that wetlands differ in the number and type of functions they perform. While this concept may have merit, it could lead to the extension of federal protection to areas that function like wetlands but do not meet the current wetlands definition.
It appears the bureaucracy is once again "having its way" with details of the Clean Water Act's Section 404 wetlands regulatory program. Important regulatory decisions are once again being accomplished behind the scenes without the benefit of public input.
Because of this troubling trend and the inability of the 104th Congress to impose narrow methods on regulators in identifying wetlands, the property rights problem associated with wetlands regulations will likely get worse before it improves. The four agencies in charge continue to be fueled by self-interest and driven by their proven ability to retain and expand their wetlands jurisdictional reach.
Don Parrish is an Environmental Policy Specialist for the American Farm Bureau Federation.