Extracting Ourselves from the Wetlands Quagmire, The Atlas Society

August 4, 2003 -- The severe winter snows and spring flooding in much of the country have yielded this summer's bumper crop of mosquitoes that carry the disease du jour: West Nile virus. Last year, 4,156 individuals suffered from known cases of the virus and 284 died, with flocks of birds succumbing as well. There are now reports of cases of malaria in Florida. Even if you're lucky enough not to contract a pest-borne plague, no doubt you'll suffer from multiple bug bites.

Because mosquitoes breed in standing water, governments warn citizens not to allow water to stand in trashcans, gutters, and the like. Sometimes we're told we might want to drain our birdbaths. This is ironic because the Number One mosquito breeder is the federal government itself through its so-called "wetlands" policies, which are the darlings of environmental extremists and reflect a moral muddle that plagues this country.

First a few facts: There is no wetlands law on the books. In 1972, Congress passed the Federal Water Pollution Control Act. Section 404 of the act prohibited the discharge of dredged or fill material into "navigable waters" without a federal permit. But in 1975, the Natural Resources Defense Council, in NRDC v. Calloway, challenged the common-sense definition of "navigable" as something you can float a boat down, and federal judges rejected both common sense and the Constitution by ruling that Section 404 covered all "waters," including what are now called "wetlands."

In subsequent years, the Army Corps of Engineers, Environmental Protection Agency, and assorted judges expanded the definition of "wetlands" to mean almost any piece of land. Even a parcel that's dry for all but one week of the year but includes plants that are associated with wetlands can fall under federal control.

Don't think that these policies only restrict the freedom of rich owners from making 1000-acre tracts into shopping malls. Citizens with small lots have been told that they couldn't build tennis courts or decks on their homes. John Poszguy, a Hungarian immigrant, purchased land, cleaned up twenty years' worth of illegally dumped tires and debris, and began to put down fill dirt on dry land as the base for a garage. But because bureaucrats and political hacks decided his property was a "wetland," he went to jail. So did environmentalist Bill Ellen, who actually created duck ponds without proper permission.

For decades, farmers have been plagued by this policy. Angelo Tsakopoulos found this out recently when a federal court in California declared his deep plowing a form of pollution. A plow dredges up soil and redeposits it in the ground. But if that ground has been declared a "wetland," then plowing is literally the equivalent of dumping truckloads of oil-laden sludge into a stream. It's not surprising that this Bush administration backed the court since it was the first Bush administration that promulgated a "no net loss of wetlands" policy, which applies only to private parties, not to America's largest landholder: the federal government. Of course, it was the U.S. Department of Agriculture in the nineteenth century that subsidized the draining of swamps by farmers. And there's no credible science behind the claim that wetlands will soon disappear and that individual Americans will face disaster.

Such policies go against the moral process of civilization—that is, protecting human life and making productive activities possible, which sometimes means draining swamps. The first Romans drained a pond in the forum to make it a fit place for commerce and meetings of the Senate and assembly. Romans of the classical era drained the Pontine Marshes outside of the city in order to arrest the spread of malaria and create more farmland. The decline of Rome meant the return of marshes, mosquitoes, disease, death, and depopulation. In the New World, two millennia later, a young George Washington helped drain part of the Great Dismal Swamp (the name says it!) to make farming and the harvesting of cypress trees possible. Washington, D.C. was built in part on filled-in swampland, though it is clearly a philosophical swamp today.

America's disgraceful wetlands policies must be challenged on ethical grounds. Only moral confusion or, worse, a deep hatred for all things human would cause anyone to put the welfare of bugs and bogs over people. Let's get this straight: Individual humans, not insects or mud, are of supreme value. Individual men and women, not pests and damp dirt, have property rights. If you own a lake and want to keep it for boating, recreation, or housing cute critters, great! If you want to drain it and it does not directly, materially, and measurably harm someone else's property, that's your business, not the government's.

It is time to truly put people—their lives, liberty, and property—first. It is time to extract ourselves from the quagmire of wetlands policy and bulldoze its philosophical premises under the fresh soil of freedom.