When Dismal Swamps Became Priceless Wetlands

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Most of these benefits, like those of fish and bird habitats, accrue to others than the owner of the wetland. As harmful as drainage can be, it remains very attractive for many wetland owners, for it can leave a net profit, while many of the costs—increased flood heights, dirtier water, impoverished wildlife, disfigured scenery—are passed on to others. This makes for an argument for state involvement oddly akin to that of the old drainage movement. Without government action, both would say, the wrong amount of conversion will take place, and individual freedom of action will undermine society’s good. Hence yesterday’s reclaimers and today’s preservationists have moral fervor in common, both seeing wetland management not as a private affair but as everyone’s business.

Sharing that faith, they have shared a fondness for sweeping rhetoric. Was government action to promote drainage “sanctioned by the usage of the whole civilized world,” as one American court thought obvious in 1870? Or was all drainage “bad for the marsh, and [bad] for mankind,” as another court held in 1975? What do we owe our future generations? Marshall Leighton urging drainage in 1912: “We can not feel that our full duty has been performed until we have made these swamp lands centers of prosperity for ourselves and those who shall come after.” A Wisconsin judge upholding preservation in the 1970s: “Most of [the land] belongs to those yet to be born.”

As the drainage movement once found support in state laws and federal policies, so now has the preservation movement. Acts of Congress in the 1970s curtailed much filling of areas under federal jurisdiction. President Carter in 1977 issued an Executive Order instructing federal agencies to minimize damage to wetlands. In 1989 the Environmental Protection Agency adopted a goal of no net loss of wetlands. Northeastern states have pioneered the protection of freshwater wetlands with approaches ranging from permit requirements to outright bans on some kinds of draining and filling. These programs are increasingly being imitated around the country.

Preservation, like drainage, imposes burdens whose allocation becomes a source of conflict. Many landowners in recent years have complained that wetland regulations devalue their oronertv bv blocking its development. Not only have they complained, but they have brought their complaints to court.

The takings clause of the Constitution has been at the center of the legal debate. It provides that when private property is taken for public use, just compensation must be paid to the owner. Ownership of property, the argument goes, is simply ownership of a set of legal rights to its use. Subtracting some of those rights is usually a taking that requires compensation to the extent that the market value remaining to the owner is diminished. But the more compensation the courts require, the less the government will want to protect wetlands. Because of that, environmentalists prefer to define wetland protection—like the abatement of nuisances and general land-use zoning—as a regulation, not a taking.

It is generally accepted that the government may regulate some activities without liability for any financial loss thereby imposed; it is also generally accepted that some regulations do require compensation. No formula for distinguishing the two has much clarified Justice Oliver Wendell Holmes’s singularly unhelpful statement of 1922 that “if regulation goes too far it will be recognized as a taking.” So how do the courts proceed? Another Holmes quotation is apposite: “The prophecies of what the courts will do in fact … are what I mean by the law.” Through the late 1960s the courts routinely resisted wetland regulations that didn’t compensate owners. They then did an about-face and began routinely to approve them. Now the rightward drift of the Supreme Court in recent years may mean that at least a partial reversal is again in the offing.

The question is not only whether wetland regulation without compensation is constitutional but whether it is advisable. There are strong arguments on both sides. We have moved from a calm, if mistaken, confidence in the harmony of all interests in drainage to what it is hard not to describe as a swamp of uncertainty. Is the larger public entitled to the benefits of wetlands at the expense solely of those unlucky enough to be holding them on the day of the regulation? Or, conversely, can those owners drain or fill at the expense of others?

Such controversies still rage, but rarely is drainage or filling still advanced as a positive good to the community. Attitudes in less than a century have undergone a remarkable change. Yet the history of wetland use points up the moral that attitudes are not all that matter. Fear and dislike of wetlands for most of American history were powerless to eradicate even a substantial fraction of them without the laws and technologies to do the job; the century in which those attitudes have been turned on their heads has been the one in which most of the drainage has taken place.