A2O-Lancaster Farming, Saturday, April 27, 1991 Preserve Wetlands Or Rights (Continued from Page A 1) can force the landowner to pre serve it?” asked Foster. “Frankly, all I can do with the ground is pay taxes, mortgage pay ments, and insurance fees for it,” she said. “That’s not fair.” The Federal Swamp and Land Act of 1849 allowed individuals to obtain wetlands free from the gov ernment if they drained and con verted the land into something more useful. Until 1972, the gov ernment cost-shared the farmer’s expense to turn the “waste land” into productive agricultural lands. But that has changed. Wetlands are no longer considered useless. They help purify surface water and ground water. Wetlands help pre vent flooding by acting as a sponge to absorb storm water, and they provide habitats for endangered plants and animals. “Frankly, all I can do with the ground is pay taxes, mortgage payments, and insurance fees for it,” she said. “That’s not fair.” While farmers agree that wet lands do have value and should have some protection, many do not believe the farmer should suffer economically because enviromen tal and regulatory groups insist that wetlands need to be protected no matter what the consequences. They refer to the Fifth Amend ment to the Constitution of the United States: No person shall be... deprived of life, liberty, or proper ty, without due process of law; nor shall private property be taken for public use, without just compensation. The purpose of amendment was to bar the government from forcing PLA Analysis Of Federal And State Wetland Legislative Proposals H.R. 1330/Ridge-Hayes 1. Provides mandatory com pensation for type “A” wetlands (exceptional value) as well as mandatory compensation for any permit denial in a class “B” wet land where a permit must first be secured. 2. Legislative definition given to wetlands rather than a regulat ory definition. Surface water must be present for 21 consecu tive days, as well as obligate or water dependent plants being found on site. 3. Place limits on permit fees 4. Places wetland authority with one federal agency, the Army Corps of Engineers, to eli minate interagency contradictions. 5. Defines in law what consti tutes “Normal fanning and silvi culture practices.” 6. Federal bill states the need to address the health hazards of wet lands, as well as the benefits. some people alone to bear public burdens that should be borne by the public as a whole. Foster said, “For the farmer who already owns the ground and is suddently deprived of its use, the DER regulations are an out-and out confiscation of property with out compensation.” They refer to the Fifth Amendment to the Constitution of the United States: No person shall be... deprived of life, liberty, or proper ty, without due process of law; nor shall pri vate property be taken for public use, without just compensation. In 1978, a Meadville couple purchased 127 acres of land. When the husband died, his wife was left with a substantial morgage pay ment. When she tried to sell the land, a wetland delineation stated that 90 percent of the property was a wetland, even though no surface water existed. The surviving spouse is now faced with a conti nuing mortgage and annual taxes on land that she cannot use and will not be able to sell as long as current regulations remain in effect. PFA calls Pennsylvania’s cur rent wetland regulatory program a bureaucratic nightmare. Permits needed to utilize wetlands can take up to one year to process (more than 13 different bureaus and agencies are authorized to review a permit application). Slate requirements are tougher than federal requirements when it comes to wetlands. No matter how large or small a wet area is, a state permit is required by DER for any activity in a wetland. Permit approval must be otained from both the Army Corps of Engineers and DER. Applicants often com plain that agencies give contradic tory advice. Of further complica tions, The Environmental Protec- Brightbill/Hess 1. No mandatory compensa tion provided for exceptional val ue wetlands or for permit denials. 2. Will follow regulatory definition currently in place until legislative definition is obtained. This may cause problems if state mapping occurs prior to federal definition being implemented. 3. No permit fee limits. 4. Does not delegate one sole state agency to handle the state program. Slate law should elimi nate the PA Fish Commission from having regulatory authority over wetlands. 5. Does not define what consti tutes “normal farming.” 6. State bill only promotes edu cation regarding wetland values. 7. State bill should contain a provision mandating that state law cannot be more stringent than federal law. tion Agency under the authority ol the Clean Water Act can veto per mit approvals. Tom Filip of U.S. Army Corps of Engineers said that the Corps issued 4,500 permits in 1989 and denied only 11. But farmers say they are often forced to drop their applications because they know it will be denied or that the process doesn’t seem worth the hazzle or the paperwork or that it is too cost ly to do the studies. Such was the case of an Erie far mer who wanted to use water from his wetlands as a secondary source to irrigate his strawberry crops. DER told him that he would need to present a “mitigation” plan to offset the loss of wetlands. The farmer dropped his plans when he realized the process was too costly and his application would be denied anyway. Paul and Mark Miller of Eli zabethtown decided to withdraw their application also. The two brothers operate a dairy and poul try business on their 85-acre farm. Since the pasture has a few wet areas, the farmers wanted to install a water trough to tap in water for the cows in the pasture. It was less than one-half acre in a 12-acre pas ture. Two years ago the Millers work ed with the Soil Conservation Office to have a plan submitted to DER, Corps, and the Fish Com mission. The Corps designated a larger area of wetlands than Der. “It seemed at that time that no one really knew the answers, that it was too complicated a process to continue,” Miller said. PFA calls Pennsylvania’s current wet land regulatory program a bureaucratic nightmare. Permits needed to utilize wet lands can take up to one year to process (more than 13 different bureaus and agen cies are authorized to review a permit application). Consequently, they dropped the application. Miller said, “We see value on having some type of reg ulation, but the approval process should definitely be more streamlined.” Although the Millers aren’t ask ing to be reimbursed for wetlands on their land, they don’t believe that small plots of wetland have that much value to the environ ment; therefore, small parcels should not be designated as wetlands. There is another reason, farmers drop their applications. Take the case of Robert Brenneman from Strasburg who got a permit from DER for the plan worked out by the Soil Conservation District Brenneman said he started his application two years ago. The Corps did not issue a permit to him, but neither did they say "no.” The frustration of Waiting and the red tape caused Brenneman to write a letter to the Corps demand ing a yes or a no by the fall of 1990. What Is The Pennsylvania Landowners Association? The PENNSYLVANIA LANDOWNERS ASSOCIA TION is a network of landowners working together to pro tect property rights and economic opportunity while prom oting responsible environmental stewardship on a state and national level. • The Association supports the concept of preserving wetlands that truly have environmental value, but they believe the Constitution requires the government to com pensate the landowner at fair market value. • As far as endangered species they believe that no spe cies is as valuable as the human species. When the loss of a particular species poses a threat to society sufficient to warrant restrictions on the use of privately owned land, then the entire threatened society should pay the landow ner for the loss of use of the land. • They encourage voluntary conservation practices and support federal incentives that promote voluntary partici pation in Conservation Easement programs. They oppose conservation easements by government agencies as miti gation devices or conditions attached to the permitting pro cess. They believe the attachment of Conservation Ease ments to farmland repossed by the federal government is especially onerous. The practice not only removes the most productive farmland from the agricultural communi ty, it also reduces the local tax base forcing tax increases upon other landowners. * • They are concerned about all legislation that dimi nishes the entrepreneurial creativity of individuals who participate in the free enterprise system, or infringes upon the rights of those individuals to own and use their property at its most productive capacity. For more information, write to PLA at P.O. Box 391, Waterford, PA 16441 or call (814) 796-3578. The Corps did not respond. “The work would have improved the water quality and made it much easier for use to keep it looking nice,” Brenneman said. He had a spring on his property that he wanted to use to pipe water to the meadow for the cows. Twenty-five years ago a waterway had been installed, but the upkeep had deterioted. The Corps would not allow Brenneman to repair it According to the Corps interpreta tion, the wetlands on the farm was twice as much as the Soil Conser vation District had assigned. “They made my lawn a wet land,” said a perplexed Brenne- man. “We’ve been mowing the lawn for SO years and there is no wildlife plants or animals growing there.” A farmer’s livelihood depends on how he can use his property. Fanners whose farming practices have conflicted with present wet land legislation are asking Con gress to come to their defense. Congressman Tom Ridge of Pennsylvania and Congressman Jimmy Hayes of Louisiana have introduced the H.R. 1330 Ridge- Hayes proposal for federal wetland changes. On the state level. Sena tor David Brightbill of Lebanon and chairman of the Senate Envir onmental Resources and Energy Committee, introduced a 3-part wetland protection plan called the BrightbiU/Hess proposal that has been introduced for discussion. The Brightbill legislation would give a specific time frame for per mit decisions, would give a mini mum acreage requirement, would allow agricultural waivers, would Wetlands are no longer considered useless . They help purify surface water and ground water. Wetlands help pre ventflooding by act ing as a sponge to absorb storm water, and they provide habitats for endan gered plants and animals. not give primacy for DER, and would allow public input on exceptional value wetland designations. While the Brightbill/Hess prop osal attempts to put an end to “the bureacratic nightmare.” some far mers claim that it does not protect the farmer enough. The Pennsyl vania Landowners Association, an outgrowth of a coaliton of landow ners supporting private land own ership, supports the federal prop osal but not the state proposal. (Refer to chart for a comparison of the two proposals). Lorraine Bucklin of the PLA said that while the Brightbill/Hess proposal begins to address the issue of constructive confiscation, it does not go far enough and leaves too many details to be deter mined by later regulations. The burden is on the landholder to prove all aspects of the law to get any compensation. This process is bound to be long, costly, and con tested at every juncture by DER. The burden should be on the DER and the state to prove it does not owe the landowner full compensa tion whenever a permit is denied or some condition imposed. “A fair wetlands protection program must balance both public interest and private rights.”
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