Vin Suprynowicz

The Libertarian

Vin Suprynowicz

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WHO OWNS THE PRAIRIE POTHOLES?

Last year, President Bush invited leaders of several hunting and fishing groups to his Texas ranch to reassure them of his concern for wetlands.

Before the election, the president vowed: “Instead of just limiting our losses, we will expand wetlands.” And in fact, a recent USDA study concluded there was a net gain of 263,000 acres of swamp on farms and ranches between 1997 and 2003.

Yes, swamps and marshes can serve as giant water filters for local aquifers, as well as providing breeding and nesting areas for migratory birds -- more than balancing out that little problem with the mosquitoes (in the view of most modern ecologists), now that malaria and yellow fever are less pressing concerns.

But this is still worth at least a moment’s contemplation. I enjoy fishing the reeds and lily pads for bass or pike as much as the next guy. But a nation that once set out to “tame the wilderness” now has as its official goal the conversion of more productive farmland ... into swamp. In the Dakota flyway, where much of the current wetlands debate is focused, farmers risk losing their crop subsidies (like that would be a bad thing? And does that actually mean there aren’t any farmers there who don’t get subsidies?) under the 20-year-old Swampbuster program, should they be caught draining wetlands on their own properties.

But eco-extremists point to a recent Government Accountability Office audit that reported USDA field offices frequently failed to check farms for wetlands violations. It said the relatively few farmers cited were likely to win appeals, which are heard by committees of farmers, or to have their penalties reduced by the USDA’s Farm Service Agency.

The GAO report blamed much of the failure on the reluctance of local USDA workers to cite farmers who they normally assisted, especially in states like South Dakota, where the population is only 750,000 and communities are close-knit.

Many farmers there dislike being told how to treat their land, and insist they know how to care for their own water and wildlife, reported Tim Reiterman in a recent feature in the Los Angeles Times.

“Everybody knows everybody, and your kids may be going to the same school or the same church,” one unnamed G-man told the newspaper.

The wonder, of course, is that this is now seen as a problem.

The founding fathers’ idea of limited government was that most matters would be handled by that level of government closest to the citizen -- the founders clearly viewed this deferral to local wisdom and opinion as a good thing, not a problem to be overcome by heavy-handed intrusions from Washington.

Dakota residents, with an agrarian economy and a multimillion-dollar tourism and hunting industry, have as much incentive to keep wildlife populations healthy as anyone. Why should we assume they have any pathological desire to destroy their own state’s natural beauty?

About 180,000 acres of South Dakota wetlands are already enrolled in several federal protection programs, reports Janet L. Oertly, the USDA’s conservation chief in the state.

Ron Reynolds of the U.S. Fish and Wildlife Service in North Dakota reports easements purchased with money from federal duck hunting stamps preserve an additional 1 million acres in the Dakotas. A million acres.

And those are, presumably, “real” wetlands. The single greatest increase in our wetlands in history has come from the simple federal expedient of regulators redefining as “wetlands” (for purposes of blocking productive use) virtually any piece of land where water stands for a day during the rainy season. (See “Send in the Waco Killers,” pp 235-238.)

Meantime, hunters and fishermen as well as environmentalists of other stripes are perfectly free to buy and fence off as much swampland as they can afford.

“We’ve still got a ton of wetlands out here,” declares Dan Von Eye, a Flandreau, S.D. farmer who lost his federal farm subsidy for two years while he successfully appealed a drainage violation. “And those ducks and geese ... are just fine.”

But that’s not enough for the green alarmists, who -- without stipulating who’s supposed to have been out surveying the swamps of South Dakota before 1776 -- declare more than half the nation’s hypothetical original 220 million acres of wetlands outside Alaska have succumbed to the developer’s bulldozer since Colonial times.

And they further weep and moan over a sensible 2001 Supreme Court ruling that -- Washington deriving its tenuous authority in such matters from the power to regulate navigable waterways -- an abandoned gravel pit in Cook County, Ill., could be filled in, since it did not qualify as a protected wetland under the Clean Water Act, even if migratory fowl used it.

What? The federal power is subject to some limitation?

In 2003, the Bush administration proposed rules to apply the Illinois case to wetlands across America -- as required by the court and the Constitution.

Faced with howls of outrage from farmers and environmentalists, the administration dropped that proposal (more’s the pity), but left in place guidelines for field staff, which said that development of privately owned wetlands within a single state could not be blocked unless the swamps in question were clearly connected to navigable waters.

As a result, the Army Corps of Engineers stopped requiring permits to fill or dredge these isolated prairie potholes. Environmental groups have since sued the corps and other agencies in several states for allowing the development or destruction of wetlands without requiring Clean Water permits.

In effect, these groups demand that federal agencies exceed the law, which grants them the power to intervene only in connection with navigable waterways -- a definition already stretched far beyond the founders’ intent, which was simply to guarantee that no one would be charged a river toll on shipments moving up and down the Connecticut or the Ohio.

As the drama over judicial nominations plays out in Washington, it’s important to note this is precisely the kind of issue being discussed:

The Constitution says there are some limits -- supposedly, enormous limits -- on the federal authority to control how you use your own property inside one of the sovereign states. The extremists of the left don’t want any more judges who will respect those limits. Drain a mud puddle in your own back yard? They want you thrown in jail, and to hell with any notion of “limited powers.”

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