Wetlands Law Swamped by Rising Tide of Criticism : Environment: Federal agencies are trying to quell the furor over regulations that are called too broad.

Edmund and Thelma Andrewjeski bought a piece of property near Dubois, Wyo., in 1976 in hopes of developing it when they retired. The Casper, Wyo., couple believed that they could subdivide the 15 acres and live off the profits in their old age.

But not long after they retired, obtained the needed building permits and put a “For Sale” sign on the river-bordered parcel, their dreams of financial security collapsed.

The U.S. Army Corps of Engineers advised them in October, 1989, that the spongy, grassy property contained wetlands that could not be filled in for construction without a permit, which was unlikely to be issued.

“We didn’t understand why it was considered wetland because there isn’t any water exposed on the property,” said Andrewjeski, 65, a watch repairman by training. “I can walk across it with my dress shoes.”

The Andrewjeskis, who want only to recover their original $150,000 investment, have joined an outcry rising across the country over a national policy designed to preserve dwindling marshes, bogs, swamps and other environmentally important wetlands.

Billions of dollars are potentially at stake. Federal law requires permits from the Corps of Engineers for the filling of “wetlands,” a classification so broadly defined that it can be construed to cover half the state of Alaska, including land that looks dry much of the time.

Shopping center developments can be stopped just as easily as mom-and-pop nine-hole golf courses.

Congress is trying to quell the furor with four separate bills on wetlands protection, and the Bush Administration is scrambling--at times at cross-purposes--to redefine the law. Most of the efforts would reduce the amount of land that could be regulated as wetlands--which are valued for flood protection, wildlife habitat and the cleansing of contaminants from water.

“The pressure is very much on the wetlands program, and the mood of Congress is quite negative, no question about it,” said U.S. Environmental Protection Agency Administrator William K. Reilly.

Some environmental groups blame the backlash on untrained federal bureaucrats who overzealously tried to enforce Bush’s 1988 campaign pledge of “no net loss of wetlands” and needlessly provoked resentment of the program.

Developers, farmers, ranchers and others bitterly accuse environmentalists of setting up wetlands watch committees around the country to spy on their neighbors and turn in those who illegally fill wetlands, whether that be weed-choked ditches or duck-filled marshes.

“A lot of people are doing things to property they don’t realize are wetlands, and they are getting into trouble,” said Robert G. Szabo, executive director of a Washington-based coalition formed to lobby for a relaxed wetlands policy.

“None of us have any trouble with the swamp or the marsh. That’s not what this debate is about. It’s about the wet spot in the corn field, the depression of land where water gets in during a construction project, the land that appears to be dry.”

Unlike other environmental laws, which tend to target large corporations, the wetlands law affects small, private property owners and restricts what they can do on their land, even if they bought and developed it without knowing that it was considered wetlands. Three-quarters of the nation’s continental wetlands are privately owned.

Violating wetlands laws can result in stiff fines or even prison terms. Four of six individuals sentenced for violations have gone to prison, and hundreds more have been fined. Because the program exacts a price from so many people, its legitimacy is more strongly challenged than any other EPA effort, Reilly said.

“In the wetlands area, we are dealing with individuals, with families, with households,” the EPA chief said in a recent interview. “Our air and water pollution laws mostly impact business, and people support them because the costs . . . are more indirect.”

Part of the problem may be the public’s perception of wetlands, with many Americans accustomed to thinking of swamps as sources of pestilence.

The image is unwarranted. Scientists consider wetlands “nature’s kidneys” because they filter nitrogen, phosphorous and even toxics from water before they can contaminate bays, rivers and oceans.

Wetlands are crucial to the survival of many kinds of wildlife, with 96% of the nation’s commercially important fish dependent on them for breeding.

As open land becomes scarce, the pressure to ignore these ecological considerations grows.

“Wetlands are located typically where people are moving . . . near rivers, coasts and lakes,” Reilly said. “They are flat, developable and cheap so the pressures are becoming increasingly irresistible to use them up.”

Even with the strict federal policy in place, Bush has yet to achieve his goal of no net loss of wetlands. Federal officials estimate that hundreds of thousands of acres continue to vanish each year, with more than half the country’s wetlands lost over the last 200 years. In California, 90% of the wetlands are gone.

The federal government estimates that there are nearly 100 million acres of wetlands remaining in the continental United States, 200 million acres in Alaska and fewer than 100,000 acres in Hawaii.

Officials blame the losses on everything from loopholes in the current law--it does not prevent excavation or draining of wetlands, which would be prohibited under three of four pending bills--to enforcement that remains spotty despite the help of some environmental watchdog groups.

“I worry about the nighttime conversions,” Reilly said.

Wetlands are protected under a provision of the 1972 Clean Water Act, which is up for reauthorization, but the sting of the law was not widely felt until the Bush Administration began to enforce it vigorously in 1989.

During that year, the federal government produced a manual aimed at reducing confusion for property owners by clarifying the definition of wetlands. Instead, the manual magnified the furor.

Under the definition, wetlands can be construed to be any land that contains “hydric” soil or enough water to cause depletion of oxygen. Land may be considered wetlands if it has water only 18 inches below the surface and for just one week a year.

Reilly, whose agency approved the manual, said he was horrified when he discovered the definition could take in huge sweeps of land, from half the state of Vermont to 40% of Maryland’s eastern shore to much of suburban Houston.

“I think people felt a little bit tricked, and I felt very embarrassed,” he said.

So the federal government recently decided to revise the manual, with the participation of four different agencies primarily responsible for wetlands: the EPA, the Corps of Engineers, the U.S. Fish and Wildlife Service and the Department of Agriculture.

Under revisions proposed for the manual, land must be wet on the surface for more than 14 days at a time to qualify. Critics within the federal government and environmental groups contend that this and other tentative revisions could remove protection for millions of acres classified as wetlands.

So controversial are the proposed revisions that an EPA scientist resigned from a technical wetlands panel rather than endorse them, and regional EPA officials flooded the agency’s Washington headquarters with complaints.

The Fish and Wildlife Service also refused to sign off on the revisions, arguing that they are scientifically indefensible.

Yet the proposals still are too far-reaching for many in the Bush Administration and in Congress.

Administration sources say that some White House officials, who are reviewing the revisions, want to eliminate protection for vernal pools, prairie potholes, playa lakes and other seasonal wetlands that are important breeding grounds for amphibians, including salamanders, toads and frogs. The EPA wants to retain those protections.

Bush, who declared during his campaign that “all existing wetlands, no matter how small, should be preserved,” apparently has not stepped in to settle the dispute among his staff.

Little more than depressions of dried mud in the summer, vernal pools are transformed by winter and spring rains into ponds filled with insects, frogs and fairy shrimp. Concentric rings of brilliant, multicolored wildflowers surround them; some nearly extinct flowers appear only in them.

Prairie potholes are glacier-created soggy depressions in the land, ranging in size from less than an acre to a few acres. They fill with water during part of the year, and half of America’s waterfowl breed in them.

Playa lakes or dry lake beds are dusty basins in the Southwest that fill with water after summer rains. They can be less than an acre to a few hundred acres.

A congressional bill that so far has 138 sponsors also would jeopardize protection of some of these seasonal wetlands. The bill, by Rep. Jimmy Hayes (D-La.), defines wetlands as ground that contains surface water for 21 consecutive days, a definition that does not cover all seasonal wetlands, EPA officials say.

The bill also would separate wetlands into three classifications according to their value. The most ecologically important could not be developed, but landowners would be compensated for the fair market value of their property.

Wetlands considered the least valuable, including some surrounded by intense development, could be destroyed. Developers could compensate for lost wetlands by creating new wetlands, an idea disliked by conservationists because marshes and bogs can not always be successfully duplicated.

The bill also would strip the EPA of enforcement responsibilities. The agency now has veto power over the Corps of Engineers on wetlands decisions.

Although the odds seem stacked against them, environmental groups are not admitting defeat.

“American environmentalists will be heard from, and the tables will be turned by the time a vote is taken,” later this year or next year, said Steve Moyer, legislative representative of the National Wildlife Federation, an environmental group.

EPA officials say they favor compromises that would allow developers to destroy some wetlands if they agree to restore others, and they support measures requiring prompt decisions on permit applications.

But the agency’s willingness to compromise is often overlooked in the emotion and confusion that surrounds the program.

Opponents of strict wetlands protection like to cite the case of Hungarian immigrant John Pozgai of Pennsylvania, who is in prison on 40 felony counts of knowingly filling in more than five acres of wetlands without a Clean Water Act permit.

Pozgai is described by program critics as a valiant citizen who removed an eyesore by hauling away 7,000 old tires and rusty junk from a stream bed on land he had purchased near Philadelphia, and filling it in for a mechanic’s shop. A petition is being circulated for presidential relief.

But LaJuana Wilcher, the EPA’s assistant administrator for water, paints a different picture of Pozgai. She said he was told before he bought the property that it contained a wetland and would require a permit before being filled in. She said he violated a federal court order repeatedly.

“When he was finished, as a result of changing the flow of the wetland, his neighbors’ basements were flooding,” Wilcher said.

Contrary to many complaints of bureaucratic inefficiency in the program, the Army Corps of Engineers says that only 5% of the 15,000 applications for individual permits are denied each year.

A Corps of Engineers spokesman said 10,000 permits are approved, 500 are rejected and the other 4,500 applicants either abandon their projects or discover that they do not need an individual permit.

All of this is little consolation to the Andrewjeskis, who applied for a wetlands permit in September so they could sell their land for housing or a commercial development. Ten months later, they still have not heard officially whether they have been rejected.

Corps of Engineers officials indicated in interviews that the couple’s permit application will be denied and said the delay in notifying the couple arose from a request by a neighbor in Dubois for a public hearing on the application, which took time to schedule and hold.

Within the Andrewjeski’s file at the Corps of Engineers are letters from Wyoming’s congressmen and senators who interceded after the couple complained to them. One official recalled that Edmund Andrewjeski was extremely angry upon learning that his land was not what it had seemed to be.

“He was the worst I have dealt with personally but other (Corps) people in the district have had people pull guns on them,” said Edwin Gooley, a Riverton, Wyo., Corps of Engineers official who says that most offenders are unaware of the law.

The Corps of Engineers maintains that the Andrewjeskis can redesign their development around the 2.3 acres that are considered wetlands. But the Andrewjeskis say that the configuration of the wetlands cuts into six lots, and that there is no way to salvage their plans.

“If the government is so knowledgeable about how we can redesign our project, I wish they would send us the plans on how to do it,” Thelma Andrewjeski snapped.

“They are the Gestapo,” said her husband. “Russia is going toward freedom, and we’re going in the opposite direction.”