Sustainability Tips

Private Wetlands, Public Interest

By Connie O'Connor, Director of Education & Visitor Services
From the September, October, November 2010 Issue of Newsleaf

There once was a small wetland I drove past regularly. A wetland is an area saturated by enough water on a regular basis that it provides a home for plants and animals uniquely adapted to such a habitat. There are many kinds of wetlands, from coastal salt marshes to prairie potholes, peat moss bogs and vernal (seasonal) pools. The wetland I drove past was typical of this area in Ohio, alive with a food chain of insects, frogs, turtles, muskrats, birds and much more.

Wetlands across the country are incredibly important for biodiversity. They provide habitat and resting places for local and migratory birds, an array of insects essential for nearly every food chain and breeding habitat for many species of frogs and salamanders. On the east coast, about two-thirds of the species of Atlantic fish and shellfish consumed by humans begin their lives in salt marshes. Wetlands also serve as giant sponges that temporarily store runoff water, releasing it gradually into the ground and preventing floods. They act as a buffer to prevent erosion when rivers and streams overflow their channels. They remove and store greenhouse gases from the atmosphere, slowing climate change. They cleanse the water we drink by absorbing excess nutrients and settling suspended materials which would make purification difficult at water treatment plants.

More than half of all wetlands that existed in the continental U.S. at the time of European settlement were destroyed by the 1980s. In Ohio, that number is even greater, with 90 percent of its wetlands destroyed due to draining, filling or other modifications. Before people knew better, it was considered a good thing to “reclaim” a wetland to use it for something considered more “valuable,” such as crops or housing.

In time, the wetland I drove past was purchased by a developer who drained and filled it with soil to build an office complex. It wasn’t my land – I had no right to stop this. As I grieved for the wetland, I was partially consoled by the fact that wetland legislation at both state and national levels requires developers to mitigate their impact by contributing to the creation of another wetland somewhere in the region. In fact, some of the wetlands on CNC property have been made possible through mitigation funds.

Unfortunately, wetland regulations are under heated debate and lawsuits across the country put wetlands at continued risk. Three-fourths of the nation’s remaining wetlands are owned by private citizens, and when the government attempts to restrict an individual’s use of his or her own property, controversy ensues.

The Fifth Amendment to the Constitution, often referred to as the Takings Clause, states “nor shall private property be taken for public use, without just compensation.” Traditionally this means that government must pay a fair price to the owner of land that it takes for public projects and programs like roads, reservoirs and wartime emergencies. Some lobbyists are attempting to expand interpretation of the Takings Clause to require compensation for any reduction in property value resulting from restrictions on use. This means that if compliance with legislation such as the Endangered Species Act or the Federal Water Pollution Control Act, both designed to protect species and habitat, reduces an owner’s property value, the government would have to compensate the land owner, even though he or she still holds title to the land. Proponents of takings legislation believe this is necessary to protect private property rights against laws that stem from public concerns for environmental protection. The public would have to pay people not to pollute or destroy habitat.

Although the courts have generally ruled that a “taking” only occurs when a restriction eliminates all of the property’s economic value, each administration interprets the laws differently and several recent Supreme Court decisions have left the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers unsure of their legal authority to enforce wetland legislation. Most recently, the demand for biofuel has caused western farmers to pressure the government to allow draining of prairie potholes - critical waterfowl habitat - so they can grow more corn for ethanol. Relaxing wetland laws avoids the threat of takings legislation altogether, but the cost is continued loss of wetlands. Businesses and individuals don’t always act in ways that are best for the community at large.

The solutions to tensions between private property rights and the public good are never simple. Landowners should keep in mind that while they may be burdened with some restrictions, they also benefit when others in the community are held to these same standards. The result is a community with less flooding, better water quality and more abundant wildlife - in short, a pretty nice place to live. As conservationist Aldo Leopold wrote in Sand County Almanac, “We abuse land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect.”

Resources are available to help us all act responsibly. According to the EPA website, “The presence of wetlands does not mean that a property owner cannot undertake any activity on the property. Moreover, federal agencies can work with permit applicants to design projects that meet the requirements of the law and protect the environment and public safety, while accomplishing the legitimate individual objectives and protecting the property rights of the applicant.”

Here at CNC, we are careful to comply with wetland regulations. One example is Matt’s Pond, where we’ve discovered an endangered plant called Sagittaria platyphylla or elliptic-leaved arrowhead. We changed our original nature playscape plans to steer clear of this pond and avoid any potential threats to Sagittaria. We see the issue from both sides, as environmentalists and as land owners, and know that doing the right thing isn’t always the easiest or cheapest option. In the end, however, we all benefit from the process. Societies are complex and governments even more so. If we all act with a mind toward the future, and with ethics that extend beyond our own personal interest, the world will be a better place.

Sources:

“Depletion and Conservation of Natural Resources: Wetlands - Fragile Ecosystems.” Library Index Science Encyclopedia. www.libraryindex.com.

“Ohio Wetlands” Fact Sheet. Ohio EPA. www.epa.ohio.gov/portals/47/facts/ohio_wetlands.pdf.

Tennesen, Michael. “A New Dilemma for Ducks.” National Wildlife Magazine Apr.-May 2010: 39-42.

“Threats to U.S. Waters.” National Wildlife Magazine Apr.-May 2010: 44.

“What About Takings?” U.S. Environmental Protection Agency. www.epa.gov/owow/wetlands/facts/fact18.html.