Ruling might end federal protection for some wetlands U.S. court's decision could weaken state's preservation efforts

January 12, 1998|By Timothy B. Wheeler | Timothy B. Wheeler,SUN STAFF

EASTON -- Standing at the end of Brant Court in this Eastern Shore town, it's hard to imagine a retirement village sprouting here.

Oblivious to the grumble of nearby traffic, a pair of mallards glides across a foot-deep pool of stagnant water in the woods. Unseen frogs -- fooled by springlike weather -- fill the soaked pines, oaks and gum trees with a chorus of mating calls.

A developer has proposed building about 60 homes for the elderly here, bulldozing nearly seven acres of freshwater wetlands. Normally, such a plan would be strangled in regulatory red tape, but a recent court ruling may end federal protection for marshy areas like this one -- far from any navigable stream or waterway.

A three-judge panel of the U.S. 4th Circuit Court of Appeals in Richmond, Va., declared federal regulation of isolated wetlands "invalid" in a Dec. 23 decision overturning the conviction of a Southern Maryland developer for filling similar wetlands in Charles County.

The split decision by the panel could bar the federal government from controlling what landowners do with many, if not most, freshwater wetlands in Maryland and four other states. The judicial circuit includes Maryland, Virginia, North and South Carolina and West Virginia.

Federal officials have until tomorrow to ask for a rehearing. The ruling alarms environmentalists but delights developers and .

others who have long complained about excessive government regulation of land use. No one can say precisely what areas would no longer be regulated, but the court's opinion says wetlands must be tied somehow to "navigable" waterways to be federally regulated. Government scientists say many, if not most, of the freshwater wetlands in the mid-Atlantic coastal plain might not meet that test.

Although not tied directly to any stream, wetlands like Easton's help control flooding and water pollution, and harbor a rich variety of water-loving plants and animals, including some that are rare or endangered.

"There are a lot of [marshy] areas in Maryland and some other states that are secluded from navigable waters," said Brenda Mallory, a Washington lawyer who represents the developer of another controversial housing project in Charles County. "Those areas are at risk" of development, she added, "and I don't think that's so terrible."

State law may be weakened

Maryland, which has lost 73 percent of its wetlands since Colonial times, has its own law protecting the remainder. The U.S. Army Corps of Engineers and the Maryland Department of the Environment jointly review proposals to build on wetlands. The two agencies are taking public comment on the Easton retirement village plan.

Of the state's 600,000 acres of freshwater wetlands, half or more might be considered isolated. State officials say they would still regulate them.

But environmental activists fear that the court ruling could open up millions of ecologically sensitive acres to development in the other four states, where only federal rules apply. And even the degree of protection in Maryland may be weakened, they contend, since there would no longer be federal oversight of the state's decisions.

Ruling may affect other laws

Some activists also worry that by questioning the constitutional basis of federal wetlands protection, the ruling could lead to a nationwide rollback of various federal laws if other courts embrace it.

"It is an attack on not only environmental regulations, but on a whole range of government regulations," said Jan Goldman-Carter, a lawyer for the National Wildlife Federation.

The appeals court overturned the conviction of James J. Wilson, founder and chief executive officer of Interstate General Co., and two of his companies involved in developing St. Charles, a sprawling Columbia-style planned community near Waldorf.

A U.S. District Court jury found Wilson and his companies guilty in February 1996 of illegally filling 70 acres of wetlands from 1988 through 1993. Wilson was sentenced to 21 months in prison and fined $1 million, and his companies were ordered to pay $3 million and restore twice as many wetlands as they had altered.

But the appellate court ordered a new trial, finding that the

government had failed to prove Wilson had knowingly violated the law. Two of the judges also declared that the wetlands at issue were too remote from navigable waters for the U.S. Army Corps of Engineers to regulate them.

Curtailing government

Wilson called the decision a "major, major victory" against what he said was the federal government's regulatory overreaching. He contended in an interview last week that he was prosecuted because he stood up to a "bureaucratic grab" of his land.

"The issue now is not environmental damage, but the reach of the federal government under the guise of environmental protection," said Wilson, who said he spent $11 million of his own money in fines and legal fees.

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