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The Hill

Federal Wetlands Protection Programs are Working

By Sen. James Inhofe (R-Okla.)

April 24, 2007

Web link to Op-Ed

Three years ago on Earth Day, 2004, President Bush outlined a new national goal for increasing the amount and quality of wetlands. The federal government’s numerous voluntary and cooperative programs that work with the landowner to preserve wetlands are an integral part of meeting the president’s goal.

Last Congress, I introduced the Partners for Fish and Wildlife Act, which authorized the Fish and Wildlife Service’s primary program for delivering habitat improvement projects on private land through voluntary agreements with private landowners. Much of the habitat protected through the Partners program is wetlands. As I noted when the Committee on Environment and Public Works passed my legislation, it is a true partnership between landowners and the government. From 1987 to 2006, Partners restored more than 800,000 acres of wetlands and plans to restore or enhance more than 45,000 acres in 2007.

I also sponsored the North American Wetlands Conservation Reauthorization Act (NAWCA) — P.L. 109-322. NAWCA leverages federal dollars with state and private dollars to conserve wetlands as habitat for migratory birds and other fish and wildlife. NAWCA projects involve multiple partners from all levels of government and nongovernmental and private organizations. From 1990 to 2006 the program leveraged $1.5 billion in matching funds and $809 million in non-matching funds to restore and protect millions of acres of wetlands. According to the Council of Environmental Quality’s report "Conserving America’s Wetlands 2006: Two Years of Progress Implementing the President’s Goal," in 2007, NAWCA is expected to improve 154,000 acres of wetlands and protect an additional 579,000 acres of wetlands.

While these programs hold the rights of the property owner sacred and work with landowners to protect our environment, the 404 permitting program is a federal regulatory program with the ability to impose often burdensome requirements that may devalue an individual’s property. Projects seeking Section 404 permits have significant economic development impacts for local communities that are best suited to determine local growth patterns. Data from the Corps indicates that in fiscal year 2006, permittees requested to impact 17,505 acres of wetlands. Ultimately, 3,618 acres were avoided and 13,887 acres were permitted. The Corps required permittees to create, preserve, enhance or restore more than 38,000 acres of wetlands.

Stakeholders have long expressed frustration with the permitting process, including the length of time it takes to process Section 404 permits. A study by David L. Sunding and David Zilberman found that it took an average of 405 days to process an individual permit and 788 days from the time the permittee began preparing the application. According to the Corps, the average processing time is at most 230 days. This number however does not reflect the time between submission of the application and the Corps’s determination that the application is complete.

One of the main concerns with the regulatory process is the lack of a clear standard for determining when a permit is required. In this regard, it is imperative that the Corps and EPA clarify the definition of "waters of the United States." The federal government owes it to the regulated community to have a clear, concise and understandable definition of "waters of the United States." When dealing with federal regulatory authority it is critical that federal law is consistent, easily understood and within the limits of the Constitution, in this case meaning the Commerce Clause.

Our government is "for the people," not in spite of the people. Individual property owners have the right to determine how to use their property. We should not be fashioning federal policy to take away the value of someone’s property. The Constitution provides them protection from just such an action. Every homeowner in America is a private property owner. Most of them would not react well to the federal government telling them to control rainwater running down their driveways from washing their cars or watering their lawns. That is not completely out of the realm of possibility, however, if the scope of the Clean Water Act is the outer limits of Congress’s constitutional authority.

Regulatory clarification of the federal definition coupled with more emphasis on programs that seek to cooperate with the nation’s landowners will go far in protecting and preserving wetlands, providing for locally driven development and preservation of private property rights. No one wants to endanger wetlands or our nation’s water supply. Everyone should want federal programs that work with the people, just as the Founders intended.

Inhofe is ranking member of the Senate Committee on Environment and Public Works.