The Wetlands Expansion
The Environmental Protection Agency has dramatically expanded the definition of protected wetlands under the Clean Water Act from traditional wetlands like swamps and marshes to include virtually any land that is occasionally wet. The expanded definition allows the EPA to regulate private property as wetlands even if the property is dry most of the year. A farmer in Iowa cannot farm his field without EPA approval because the field is occasionally wet in spring. A homeowner in Texas cannot build on his property because the EPA classifies drainage ditches as protected wetlands. The expanded definition gives the government control over millions of acres of private property without the property owners having any say in the matter. The Clean Water Act originally protected navigable waters and adjacent wetlands from pollution. The original intent was to protect water quality in public waterways. The EPA's expansion interprets the statute to include any land that is wet for any period of time, even lands that are dry for months or years. The Supreme Court has pushed back against the expansive interpretation in recent decisions, but the EPA continues to expand the definition in practical enforcement. A property owner must hire lawyers and environmental consultants to determine whether his property qualifies as protected wetland. The costs can reach tens of thousands of dollars. Many property owners cannot afford the costs and simply assume their property is protected, limiting their own use of their land. The EPA has effectively confiscated the use and value of millions of acres of private property without compensation.
The Regulatory Takings Problem
The Fifth Amendment to the Constitution states that private property shall not be taken for public use without just compensation. The EPA's expanded wetlands regulation functions as a regulatory taking. The government has taken the use and value of private property without compensating the owners. A property worth one million dollars becomes worthless if the EPA determines it is a protected wetland. The property owner cannot sell it because buyers cannot develop it. The property owner cannot use it for agricultural purposes without EPA permits. The property owner cannot even drain water from his own property if the EPA determines the drainage would harm a protected wetland. The government has effectively confiscated the property without paying for it. When a government agency takes a physical piece of property, the Fifth Amendment requires compensation. When a government agency regulates property in a way that makes it worthless, the Fifth Amendment may require compensation. But courts have been reluctant to enforce Fifth Amendment protections against regulatory takings. As a result, property owners lose the use and value of their property and receive no compensation. The EPA's expanded wetlands definition is a regulatory taking that violates the Constitution. Congress should pass legislation clarifying the definition of wetlands and requiring compensation when regulations render property economically unusable. Until Congress acts, property owners should challenge EPA jurisdiction in federal courts and demand compensation for regulatory takings.
The Agricultural Impact
Farmers are disproportionately affected by the EPA's expanded wetlands definition. Farmland often includes seasonal wet areas that serve as natural drainage or water storage. The EPA's classification of these areas as protected wetlands prevents farmers from using the land productively. Farmers cannot drain wet fields to make them plantable. Farmers cannot build drainage ditches to improve field productivity. Farmers cannot clear vegetation from water areas to improve water flow. The restrictions reduce agricultural productivity and farm income without compensation. A farmer in Missouri lost fifty acres of productive farmland when the EPA classified seasonal wet areas on his property as protected wetlands. He cannot farm the land. He cannot sell it for development. He is required to maintain it in its natural state without compensation for the lost agricultural income. The EPA's rules are destroying the viability of small farms and consolidating agriculture into large operations that can afford EPA compliance costs and legal challenges. The result is the consolidation of agricultural land into fewer, larger farms, which is contrary to the interests of rural communities and food security. Congress should exempt agricultural drainage and water management from EPA wetlands regulation or require compensation for lost agricultural income.
What Congress Should Do
Congress should pass legislation clarifying the definition of protected wetlands to exclude seasonal wet areas and agricultural drainage. Congress should require the EPA to compensate property owners when regulations render property economically unusable. Congress should exempt agricultural water management and traditional farming practices from EPA jurisdiction. Congress should allow property owners to challenge EPA jurisdiction without the burden of expensive expert testimony and consultation. The current system allows unelected bureaucrats to control property use without due process or compensation. That is contrary to constitutional property rights and the rule of law. Congress has the authority to limit EPA jurisdiction and require compensation for regulatory takings. Congress should exercise that authority to protect property rights and restore economic vitality to rural communities.
