TCS Daily


Meet the West's Multiple Land Use Sheriffs

By Hugh Hewitt - September 6, 2001 12:00 AM

California and its neighbors to the north are closing in on the status of ward of the federal government. With every new listing of a species as endangered, and with every administrative ruling of the Army Corps of Engineers as to what is a "jurisdictional water" of the United States, the federal overlay on the West Coast grows larger and thicker. Other agencies have joined the assault on state sovereignty, including the Environmental Protection Agency. Private litigants have figured out how to use the federal courts to add their names to the unelected authorities wielding enormous power over the lands and people of the West.

Some West Coast folk applaud these developments. The city-dwellers are, in large numbers, believers in the danger of "sprawl" and boosters of "open space." Environmental activists long ago recognized the limits to influence with elected officials who must, ultimately, answer to voters. These activists would much rather petition the U.S. Fish and Wildlife Service to designate "critical habitat" for the San Bernadino Kangaroo Rat or the Quino Checkerspot Butterfly than seek even simple majorities in Sacramento. The zero-growth movement requires like-minded allies within federal bureaucracies. The Clinton-Gore years was the golden age of bureaucratic co-option. At every level, from GS-2 to SES level 6, the feds are full to the brim with ideologues whose claim to expertise is quite simply laughable.

Bureaucratic power does not require expertise because it comes without accountability. The West is full of stories -- real, live dramas -- of landowners ruined because some federal official said, "Make it so." The cost of delay is so huge that landowner after landowner is shaken down without objection. Klamath Basin is just the best known of a long list of land use coups executed in the name of exotic species. Is there anyone who really believes that the sucker fish will perish from the Earth if the farmers are allowed to irrigate their fields? Some no-name biologists speculated that could happen and the bureaucratic bulldozer kicked in. We have seen it before with fairy shrimp and Delhi-sands loving flies. We will see it again. There is no will among Congress to demand change -- no upside to defending property rights.

Nor outside of the Fox News Network does any media outlet seem to care. Fox's William La Jeunesse owns the beat and has scooped all the other networks time and time again on these stories. If he doesn't win an Emmy it will be because of environmentalist criticism of the stories selection but not of the accuracy of the accounts. The other nets just aren't interested, even when the news value of, say, the loss of firefighters' lives to species concerns is obvious.

Here's a big "for example" of an unreported story involving bureaucratic abuse. Under the Clean Water Act the U.S. Army Corps of Engineers is supposed to decide when applicants are given permission to work in or around the "navigable waters" of the United States. Set aside the fact that this definition has grown to absurd proportions or that the agency is resisting the clear command of the U.S. Supreme Court that it stop and reverse this appetite for power.

The Corps eventually does get around to issuing some permits, and evidently a different branch of the feds thinks it does so too often. The EPA has a limited authority to intervene in these permit decisions. If the EPA sees a permit on its way to being issued that involves "an aquatic resource of national importance," it may object and so inform the Corps, causing lengthy delays in the permitting process. Not surprisingly, the EPA has abused this authority, and routinely labels even a few hundred feet of dry streambed an "aquatic resource of national importance." The EPA staff then parlays the delay it triggers into more concessions from the applicant. Occasionally, the Corps will stand up for the law and reject an EPA demand for more mitigation. The local EPA staff simply waits until the matter threatens to end up back in D.C. only to fold at the last minute. No harm in trying, right?

Except that it is an abuse of power by individuals unqualified to wield such authority. More and more applicants are finding that bureaucrats are dropping even the pretense of environmental concern. It's just about the power.

The Bush Administration will find it hard to restore a respect for the rule of law at the lower levels of these agencies. It will need to demand wholesale transfers in order to break up existing rings of regulatory zealots. But there is one thing it can do, and should do. Now. Tomorrow.

Many senior jobs are empty within the agencies. The head job of the powerful Region 9 office of the EPA is and has been vacant for months. Other senior positions can be filled at the other key agencies. The Bush folks have followed a top-down model which makes sense when lower levels of an organization will take cues and guidance from senior management headquartered far away. It makes no sense when the lower levels are daily issuing rulings that, if they were publicized, would be repudiated from the top.

White House personnel needs to get off the dime and begin to staff the senior level of the field bureaucracies. Wise appointments could quickly tame the worst abuses of law and regulation and at the same time could begin the effort to reclaim some key constituencies in the West. The political geography does not favor the President out here. But it is a political dynamic that only gets worse when the Administration does not bother to fix what it could even as it plans longer term relief where its hands are presently tied.

Hugh Hewitt is a syndicated radio talk show host and environmental lawyer. He can be reached at www.hughhewitt.com.
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