The Corps Giveth, and the Corps Taketh Away

The annals of environmental regulation are replete with horror stories whereby private individuals who engage in harmless or even constructive activities that may involve “wetlands” are harassed or subjected to draconian punishment for what are at most trivial offenses, and sometimes completely harmless or even constructive activities. Woebetide the land owner who clears trash and debris from his arguably wet land without a Clean Water Act permit, when the Corps of Engineers deems it to be a “wetland.” Why quotation marks? Because under the bizarre Corps of Engineers’ regulations, even dry land that never gets wet except when it rains, may be deemed a “wetland.” You don’t think so? Then check out 38 Santa Clara L. Rev.837,  845-853 (1998), particularly fn. 52 at p. 848. And get this: in the 1970s your faithful servant was involved in a case in Florida (Context Development Co. v. Alexander, U.S.D.C. So. Dist. Fla., Docket No. 80-1708-Civ-JE) in which the Corps took the position that plowing bone-dry land for a new citrus grove was “dredging and filling in waters of the United States.” No one ever explained how it is possible to plow waters of the United States, or any other kind.

In that context, in which the Corps purports to act as a saintly protector of field and stream, imagine the shock of Los Angeles environmentalists when a week or so ago they realized that some 43 acres of land in the Sepulveda Flood Control Basin, described by the L.A. Times as a “lush habitat . . . , home to one of the most diverse bird population in Southern California, has been reduced to dirt and broken limbs — by the U.S. Army Corps of Engineers.” Louis Sahagun, Nature Group Stunned After Army Corps Levels Habitat, Los Angeles Times, December 29, 2012, at p. AA1 – click here.

We could stop here because this little horror story, bizarre as it is, is hardly news. There are others like it, if anything, worse. What gives this story a special twist is not just the casual destruction of that 43-acres of “cottonwood and willow groves, undergrowth and marshes that had maintained a rich inventory of mammals, reptiles and 250 species of birds;” it is that it had been planted and created in the 1980s by — who else? — the U.S. Corps of Engineers as a designated wildlife preserve. But in 2010 the EPA designated the Los Angeles River (which flows through this area) to be navigable and as such subject to protection under the Clean Water Act. But now that its time to put it on the Corps’ chopping block, the Corps took the position that the destruction of  this wildlife preserve’s “would not significantly disturb wildlife and habitat.” You try that in the case of similar, privately owned land. Just try it and see what happens.

Anyway, local environmentalists are furious and some have asserted that the Corps misrepresented its intent on the use of this land all along. We don’t know whether this is true, but we wouldn’t put it past ‘em.

In the end, the problem is much larger than the questionable behavior of the government with regard to one parcel of land. This is yet another demonstration that the government cannot be trusted, and that it exempts itself unfairly from  having to follow “rules” that it imposes on the citizens.

If you have an interest in such matters, we recommend a book by James V. DeLong, PROPERTY MATTERS (1997). Reading it will be well worth your time and effort.

One more thing. As we read (and reread this story, to make sure that we saw what we saw) we were struck by the fact that any reference to the cost of this caper was conspicuous by its absence, leaving us to wonder: (a) how much did it cost to create this wildlife preserve, and (b) how much did it cost to destroy it? Whatever it was, you can bet that it wasn’t cheap.

Your tax money at work.


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