PROPERTY RIGHTS MUST BE BALANCED WITH PROTECTION

For the last decade, a word charged with sharply differing meanings to different people has entered the public debate. That word is wetlands.

Mention wetlands to an environmentalist or conservationist, and you will get a speech about the vital importance of lowland marshes to a healthy ecosystem. (No informed person disputes this.) The environmentalist's speech will usually be accompanied with alarms that we have suffered the loss of a vast amount of wetland acreage.

That a diminution of wetland acreage has occurred is indisputable. One example, close to home: before the period 1905-30, 90 percent of Missouri Bootheel ground was an uninhabitable swamp a classic "wetland". In that early part of the 20th century, sustained effort over a vast area drained Bootheel ground, yielding agriculture of such awe-inspiring productivity that it achieved world-wide fame.

Mention wetlands to a farmer, rancher or developer, and you will get an equally passionate response. Since the late '70s, first agricultural producers and then developers have endured horror stories, as a tightening noose of federal regulation has strangled sometimes even criminalized routine operations that had long gone unmolested. We're talking about matters as simple as whether a tool shed could be built on a farmer's ground, or whether a small hole could be filled in on a construction site. Seen from this perspective, the word "wetlands" has become a red-hot property rights issue.

Farmers, ranchers and developers face aggressive squads of wetlands police from no fewer than four federal agencies: the Environmental Protection Agency (EPA); the Fish and Wildlife Service; the Soil Conservation Service; and the Army Corps of Engineers. Add to this the Missouri Department of Natural Resources, and you have a massive, multi-layered governmental octopus with a mandate to "protect wetlands."

Just exactly whazt is a "wetland"? Mushrooming federal regulation dates from the Clean Water Act of 1972; the history is a cautionary tale about well-intended federal law giving way to a nightmarish expansion of government power.

Section 404 of the Clean Water Act gave to the Army Corps of Engineers responsibility for regulation of "the navigable waters of the United States." This gave rise to what came to be known as 404 Permits issued by the Corps.

Enter one federal judge, who construed Section 404 so broadly as to mean virtually any ground that has even a tiny amount of standing water for even a few days during the year. No drainage ditch, dry creek or mud puddle was too small to come under the new regulatory stranglehold. So great was the interference with property rights that issues of a "taking" of property under the Fifth Amendment due process clause arose more and more frequently. This was a recipe for a vast and aggressive expansion of federal power.

Combine this broad warrant with the sort of humorless zealots who staff government bureaucracies everywhere, and you have the sort of horror stories with which every farmer and developer is grimly familiar.

Last month, the Clinton administration announced a new federal wetlands policy which, it is claimed, strikes a balance. We applaud them for addressing at least one concern that of bringing all federal wetlands policy under control of a single permitting agency: the Soil Conservation Service of the Department of Agriculture. Missouri Sen. Kit Bond proposed this two years ago in legislation he sponsored, and we are heartened to see the administration adopt this approach.

We have another concern. Wetlands enforcement is part of a whole new set of crimes unknown 15 years ago, as environmental crime becomes the "chic" criminal law growth industry of the '90s. With the EPA literally a government within a government, the possibility nay, the reality exists for a regulatory reign of terror.

We have seen this first-hand in two nightmarish instances of EPA overreaching here in Cape Girardeau County: the cases of Missouri Electric Works, and the Kem-Pest superfund waste site. Combining the awesome investigative power of the entire federal government with environmental zealotry is now known to subject innocent, law-abiding, conservationist-believing Americans to an endless, Kafka-like ordeal of investigation, accusation, expensive defenses, trial even sometimes prison and ruin.

This is fundamentally un-American. So, increasingly, has been our wetlands policy. All of us want common sense protection for real, honest-to-goodness wetland marshes. We will be watching closely as the Clinton administration rolls out its enforcment scheme. Vital property rights must be balanced with sensible protection for the environment.