Sir, We Need You to Put Your Hands on Top of Your Head and Step Away From that Birdbath

Yeah, we know. You think the above headline is a put-on. Right? Actually, no; not quite. While, true enough, no dispatches have reached us yet that an armed officer of the peace has arrested a suburbanite homeowner for the offense of maintaining a birdbath in his back yard, it has gotten close in — where else? — New York. [Note to self: Remember to offer thanks to the Lord for not letting this news item come from California, the usual nutcake venue when it comes to bizarre land-use laws.]

The New York Times reports (Sam Roberts, Water in Your Birdbath? That Will Be $300, April 23, 2012 – click here) that the City of New York has been issuing three-hundred buck citations to homeowners who maintain ornamental birdbaths in their back yards. No, we are not making this up — we couldn’t if we tried. It seems that the city mothers are concerned with the spread of the Nile virus, and have declared war on “standing water.” Does that mean that all New Yorkers have been conscripted to drain standing puddles on their land? Technically, it would so appear, even though the Times reports that only four “surprised New Yorkers” have received such citations regarding birdbaths which, along with neglected swimming pools, are deemed by the city to be a special hazard. Which caused one of the citees to remonstrate that he has seen (and photographed) “manhole covers outside the 94th Precinct that have as much water as I do” in  the aforementioned birdbath.

Obviously, this absurdity contains virtually unlimited possibilities for satire, but as is often the case in such situations, there is a serious matter lurking within this farce. The N.Y. Times article fails to mention the matter of the application of the Clean Water Act to what the feds are pleased to call “wetlands” which can consist of some pretty small bodies of water. In fact, this may come as a surprise to you, but the federal definition of a wetland may include dry land that never gets wet, exccept when it rains. If you want an explanation, such as it is, check out 38 Santa Clara Law Review at p. 844, footnote 37 and accompanying text. Actually, it won’t hurt you to read that entire article, starting at p. 837.

So what we have here is the potential for a situation in which a landowner can be simultaneously hassled by the city for maintaining large puddle that can serve as a breeding ground for mosquitoes, and by the EPA for draining it in violation of federal regulations that protect it, mosquitoes or no mosquitoes. We may be wrong, but we never heard of an exemption from the provisions of the Clean Water Act on the ground that the wetland in question can be a breeding ground for disease-carrying mosquites. Have you?

Follow up. And if you think the scenario described in the preceding paragraph is too far fetched, recall when the federal government was subsidizing tobacco farmers while simultaneously putting warnings on cigarettes and denouncing smoking as a health hazard?

Indeed, an analogous situation is already afoot in the Big Apple. The New York Times reports (Jim Dwyer, Giving Away, then Seizing, Condoms, N.Y. Times, April 25, 2012, at p. A18 — click here) that (a) last year New York City health workers gave out 37.2 million condoms (70 condoms per minute during the past year), while (b) New York’s finest are hassling folks suspected of prostitution by confiscating condoms found on their persons as illegal “sexual paraphernalia.”

 

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