FEDERAL WETLANDS POLICY: PROTECTING THE

ENVIRONMENT OR BREACHING CONSTITUTIONAL RIGHTS?

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

OCTOBER 6, 2000

Serial No. 106–233

Printed for the use of the Committee on Government Reform

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FEDERAL WETLANDS POLICY: PROTECTING THE ENVIRONMENT OR

BREACHING CONSTITUTIONAL RIGHTS?

U.S. GOVERNMENT PRINTING OFFICE

72–734 DTP WASHINGTON : 2001

FEDERAL WETLANDS POLICY: PROTECTING THE

ENVIRONMENT OR BREACHING CONSTITUTIONAL RIGHTS?

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

OCTOBER 6, 2000

Serial No. 106–233

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250

Mail: Stop SSOP, Washington, DC 20402–0001

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

DAVID A. KASS, Deputy Counsel and Parliamentarian

ROBERT A. BRIGGS, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on October 6, 2000 ............................................................................ 1

Statement of:

Davis, Michael, Deputy Assistant Secretary for Policy and Legislation,

Office of Civil Works, Department of the Army; and Robert Wayland

III, Director, Office of the Wetlands, Oceans, and Watersheds, Environmental Protection Agency ............................................................................ 164

Kamenar, Paul, Washington Legal Foundation; Susan Dudley, Mercatus

Center; Gloria Pozsgai-Heater, daughter of John Pozsgai; Victoria

Pozsgai-Khoury, daughter of John Pozsgai; and Kathleen Andria, director, American Bottom Conservancy, and chairman, Environment Committee for East St. Louis, Community Action Network ............................. 24

Letters, statements, etc., submitted for the record by:

Andria, Kathleen, director, American Bottom Conservancy, and chairman,

Environment Committee for East St. Louis, Community Action Network, prepared statement of ........................................................................ 69

Biggert, Hon. Judy, a Representative in Congress from the State of

Illinois, exhibit 20 ......................................................................................... 129

Chenoweth-Hage, Hon. Helen, a Representative in Congress from the

State of Idaho:

Exhibit 1 ..................................................................................................... 96

Exhibit 40 ................................................................................................... 89

Exhibit 49 ................................................................................................... 110

Exhibits 28 and 29 .................................................................................... 119

Exhibit 64 ................................................................................................... 122

Exhibit 65 ................................................................................................... 124

Information concerning fines .................................................................... 211

Prepared statement of ............................................................................... 9

Davis, Michael, Deputy Assistant Secretary for Policy and Legislation,

Office of Civil Works, Department of the Army:

Information concerning costs .................................................................... 209

Prepared statement of ............................................................................... 168

Dudley, Susan, Mercatus Center, prepared statement of ............................. 45

Gilman, Hon. Benjamin A., a Representative in Congress from the State

of New York:

Letter dated September 15, 2000 ............................................................. 17

Prepared statement of ............................................................................... 19

Kamenar, Paul, Washington Legal Foundation, prepared statement of ..... 27

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, letter to Colonel Morrow ................................................................ 80

Pozsgai-Heater, Gloria, daughter of John Pozsgai, prepared statement

of ..................................................................................................................... 64

Pozsgai-Khoury, Victoria, daughter of John Pozsgai, prepared statement

of ..................................................................................................................... 56

Waxman, Hon. Henry A., a Representative in Congress from the State

of California, prepared statement of ........................................................... 13

Wayland, Robert, III, Director, Office of the Wetlands, Oceans, and Watersheds, Environmental Protection Agency, prepared statement of ....... 183

(1)

FEDERAL WETLANDS POLICY: PROTECTING

THE ENVIRONMENT OR BREACHING CONSTITUTIONAL RIGHTS?

FRIDAY, OCTOBER 6, 2000

HOUSE OF REPRESENTATIVES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 10 a.m., in room 2157,

Rayburn House Office Building, Hon. Dan Burton (chairman of the

committee) presiding.

Present: Representatives Burton, Gilman, McHugh, Sanford,

Biggert, Chenoweth-Hage, Maloney, Cummings, Kucinich, and

Allen.

Staff present: Kevin Binger, staff director; Daniel R. Moll, deputy

staff director; David A. Kass, deputy counsel and parliamentarian;

Sean Spicer, director of communications; Nicole Petrosino and Nat

Wienecke, professional staff members; Robert A. Briggs, clerk; John

Sare, staff assistant; Robin Butler, office manager; Michael Canty,

legislative assistant; Josie Duckett, deputy communications director; Leneal Scott, computer systems manager; Corinne Zaccagnini,

systems administrator; Michelle Ash and Elizabeth Mundinger, minority counsels; Ellen Rayner, minority chief clerk; and Jean Gosa,

minority assistant clerk.

Mr. BURTON. Good morning. A quorum being present, the Committee on Government Reform will come to order.

I ask unanimous consent that all Members’ and witnesses’ written opening statements be included in the record and, without objection, so ordered.

I ask unanimous consent that all articles, exhibits, and extraneous or tabular material referred to be included in the record and,

without objection, so ordered.

Today, the Committee on Government Reform will focus on

issues surrounding wetlands and the implementation of wetlands

regulatory programs under Section 404 of the Clean Water Act. As

with any other environmental issue, there are those who seek more

protections and those who feel the existing protection is inherently

unfair and administered inconsistently. I think this hearing will

provide us with a truly comprehensive range of geographic, social,

economic and environmental interests that will highlight the

public’s frustration over problems with Section 404.

On panel one, we will hear from Paul Kamenar from the Washington Legal Foundation; Susan Dudley from the Mercatus Center;

and Kathleen Andria, Director of American Bottom Conservancy.

2

We will also hear from Gloria Pozsgai-Heater, is that correct, and

Victoria Pozsgai-Khoury—is that correct? Pretty close? Good—property rights advocates and the daughters of John Poszgai.

Panel two will consist of Michael Davis, Deputy Assistant Secretary of the Army, Office of Civil Works; and Robert Wayland, Director of Wetlands, Oceans and Watersheds at the Environmental

Protection Agency.

I would like to thank all of you for being here today, and I look

forward to hearing everyone’s testimony.

I think many would agree that the current program is in need

of repair. Today, this impressive array of witnesses will provide the

committee with further guidance on and reaction to the issues surrounding wetlands policy.

The issue of wetlands revolves around different scientific and

Federal program questions. Scientific questions include how to define wetlands and the current rate and pattern of wetlands losses,

as well as the importance of those losses. Federal program questions include the operation of the Federal Regulatory Program and

other programs to protect, restore and mitigate wetlands resources.

As one who loves the outdoors—I play a lot of golf. I love the outdoors. I truly believe that wetlands are an important natural resource to our society. Wetlands can be valuable for water quality

improvement, erosion prevention, flood storage and recreation.

They also provide fish and wildlife habitat, food chain support and

contribute to our general quality of life.

However, the protection of wetlands has long been a contentious

issue. The confusing and onerous nature of existing wetlands policy

continues to result in a major controversy. Few would argue with

the statement that there are a number of fundamental flaws with

our current Federal wetlands policy. The inflexible and wide-ranging definition of what constitutes a wetland has led to Federal protection of prairie potholes and other lands that have been farmed

by families for generations.

Many argue that the definition of wetlands has been unreasonably expanded to include properties which are not, in fact, wetlands. Because the current definition of wetlands is imprecise,

many plots of essentially dry land are now being classified as wet.

Therefore, I believe there needs to be a more clear, concise and accurate definition of what truly constitutes a wetland.

As many of you know, three factors are considered when distinguishing a wetland: first, the number of days land is inundated or

saturated with water; second, whether the Earth is hydric soil;

and, third, whether the area has one of approximately 7,000 indicator species of plants growing on it. Most of the problems associated

with defining wetlands have arisen not from disagreements over

the appropriate factors but over how many factors must exist and

to what degree.

Some experts have suggested taking a three-tiered approach to

regulating wetlands, from highly valuable to the least valuable.

Another factor to consider is the burden of proof in wetlands

cases when a property owner is charged with polluting a wetland.

When a government entity accuses a property owner of violating

the Clean Water Act, the courts have tended to accept the government’s determinations that an area is a wetland, notwithstanding

3

the fact that the burden of proof is supposed to be on the Federal

Government.

As a practical matter, the property owner must prove that his or

her land is not, in fact, a wetland. I believe, however, that the burden of proof in wetlands cases, as in all others, should always rest

upon the government.

This leads us to the story of Mr. John Pozsgai. We have all heard

horror stories about small landowners who are needlessly victimized by complex Federal policies. Well, today we will hear the personal story of one of these small landowners directly from his two

daughters, Gloria and Victoria.

Mr. Pozsgai is a former Hungarian freedom fighter who arrived

in this country in search of the American dream and freedom. And

I remember back in 1954, I believe it was 1954, when we received

some cries for help from the Hungarian freedom fighters. President

Eisenhower was in the White House, and they were ground under

the tanks of the Soviets. There wasn’t much that could be done,

and those people were heroic, in my opinion, fighting for what we

all believe in, that being freedom.

Mr. Pozsgai eventually settled in Morrisville, PA, and eventually

bought a small piece of land. After the factory he was working at

shut down, he opened a small truck repair shop on that land. This

truck repair business allowed him to make a modest living for himself and send his two lovely daughters to college.

After many years of hard work and perseverance, he decided to

purchase a small 14-acre tract of land directly across the street

which would allow him to expand his business and hopefully retire

a few years later. After cleaning up more than 7,000 old tires and

rusted car parts and putting some clean fill on the land in order

to build on it, he received notices from the Army Corps of Engineers stating that he needed to cease and desist. He eventually

also received a notice from the Environmental Protection Agency

stating that he had to do the same.

After being spied upon by neighbors and local town officials both

day and night, Mr. Pozsgai was eventually arrested in his place of

business. He went through both civil and criminal proceedings consecutively, allowing no time for the punishment from the civil trial

to take effect. He was fined $200,000—cleaned up 7,000 old tires

and car parts and cleaned up this land which was an eyesore, he

was fined $200,000 in the civil trial. A criminal trial ended in a 3-

year prison sentence and an additional fine of $202,000.

I fully understand the controversy surrounding Mr. Pozsgai’s

case. He did receive notices from the Federal Government, as well

as the local government, asking him to stop filling his property. I

guess they wanted the old tires back on there and the rusty old car

parts.

On the other hand, I strongly believe that Mr. Pozsgai’s punishment did not fit the crime. I mean, cleaning up a junkyard and putting fill dirt in there and they put him in jail for 3 years and

$402,000 in fines? It seems to me that the EPA and the Corps

made an example out of Mr. Pozsgai.

I would like to show you a brief video clip to give you a better

idea of the Pozsgai story. So would you put that on, please?

[Videotape played.]

4

Mr. BURTON. Let me just say that I have been in Congress 18

years, and I believe that polluters should be punished. I believe

that the environmental protection laws should be enforced. I think

they should be revisited, especially in the area of the wetlands policy; but this is a travesty.

I have never heard of anything like a man—1956, I stand corrected—a man who fought for his freedom against the Communists

in Hungary, laid his life on the line because he didn’t want to be

controlled by a totalitarian Communist dictatorship, risked his life

and everything he owned, which was taken away from him by the

Communists, comes to the United States of America, the land of

freedom and hope, and they put him in jail for cleaning up a dump

and putting clean fill dirt in there. It is the most onerous penalty

ever imposed for this kind of a crime by the Environmental Protection Agency and the Army Corps of Engineers and the Justice Department, and I think it is tragic, and whoever instigated this they

ought to be punished for this overstepping what should be done.

Obviously, if he broke the law and he didn’t pay attention to the

notifications, there should have been some kind of punishment,

but, my God, 3 years in jail and $200,000 in civil damages and

$202,000 in criminal damages, and 18 months in jail, that’s ridiculous.

What I find most striking is that no one, and I mean no one,

truly cared about the condition of that piece of land, nobody—it

was a dump—until Mr. Pozsgai took it upon himself to clean it up.

He gathered up garbage that people had been dumping for decades

and placed some clean fill on the property so he could build on it.

Maybe he shouldn’t have. I don’t know. But this is just way out of

line.

Clean fill is generally defined as Earth, dirt, soil and bricks, but

in the case of Mr. Pozsgai, the EPA and the Corps of Engineers defined this clean fill as a pollutant—I mean, what were those tires?

What were all those rotten old car parts? And I used to live in a

place where we saw that kind of stuff—as a pollutant that was contaminating a wetland.

Unfortunately, there are countless other incidents similar to

John Pozsgai’s. All of these cases have two things in common:

First, the land involved is basically dry or only marginally wet at

most, making its characterization as a water of the United States

highly suspect. Second, the pollutants allegedly being discharged

into these waters of the United States and the activities for which

a permit is normally required almost always do not pose even the

remotest threats to water quality.

Property rights advocates argue that cases like Mr. Pozsgai’s

come about as a result of Federal agencies seeking to protect wetlands which are of marginal ecological value. Many claim that this

type of behavior is having a negative impact upon housing affordability and will eventually have a negative impact on our Nation’s

economy.

It seems to me that we need to develop a wetlands policy that

also takes into account the need for reasonable residential and

commercial development.

Another major problem with the Federal Government’s current

wetlands policy, which also touches upon a fundamental constituVerDate 11-MAY-2000 08:55 Aug 07, 2001 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\DOCS\72734.TXT HGOVREF1 PsN: HGOVREF1
5

tional principle, is individual property rights. The fifth amendment

to the Constitution clearly states that Americans shall not be deprived of life, liberty or property without due process of law. Nor

shall private property be taken for public use without just compensation.

I certainly agree that true wetlands should be protected from

harm by the Federal Government, but the citizens who own that

land ought to be compensated for their loss. I truly believe that the

original intent of the Clean Water Act was to prevent real pollutants from flowing from one body to another.

Over the years, however, Federal regulators have expanded and

reinterpreted the act’s open-ended terms to protect wetlands, a purpose for which the act was never intended. I believe that many reasonable people feel on both sides of the aisle that new thinking regarding our current wetlands policy must be considered. That’s the

purpose of today’s hearing, and I look forward to hearing everyone’s testimony.

With that, I yield to my good friend, Mr. Kucinich.

Mr. KUCINICH. Thank you very much, Mr. Chairman, and thank

you for holding this hearing on the important issue of wetlands

protection.

I want to welcome our witnesses and welcome the Pozsgai family

to Washington, DC. I know that in watching this brief news clip

and reading a little bit about your case, it is very depressing, and

it is heartbreaking. I know that your appearance here today is a

very emotional one for you, and I can assure you that this committee will deal with this very sensitively.

If the issue is simply your experience, I suppose that the chairman certainly is capable of making a case that what happened to

you is totally unjust, and I am sure that a review of that would

convince many people of that.

But what we are talking about here today, of course, as you understand, goes beyond your case and it involves policy toward all

wetlands in the whole United States, not the fact that perhaps

there was an abuse of power here. See, we don’t know that but,

when you watch, it is possible that could have happened. We don’t

know. But wetlands play an important role in purifying our water,

in controlling floods and droughts, in providing habitat for migratory birds and threatened plants and animals; and, unfortunately,

we have lost almost half of our wetlands and continue to lose them

at an alarming rate. So that’s why I can have compassion for what

you have experienced and at the same time say that today we have

to look at a broader policy, and I do have compassion for what your

experience has been.

Now, in my own State in Ohio, 88 to 90 percent of the wetlands

that existed prior to settlement have been destroyed. The Great

Black Swamp of northwestern Ohio, which once covered an area

the size of the State of Connecticut, is virtually gone; and the inland and coastal marshes of Lake Erie have been reduced to less

than 5 percent of their original expanse. Once, 20 percent of the

Ohio landscape was wetlands. Now, they comprise only 1.8 percent

of it. Studies have ranked Ohio as having experienced the second

greatest percent loss of wetlands of any State in the country.

6

Now, the Corps of Engineers and the Ohio EPA have addressed

this problem with a permitting policy that required no net loss of

wetlands. However, the National Audubon Society Great Lakes Regional Office found that between 1990 and 1995 the Corps granted

individual permits which resulted in an 18 percent loss. In fact, 44

percent of the permits that were granted were expected to result

in a net loss.

The study found that the no net loss policy was failing because,

first of all, the Corps was not demanding adequate mitigation to

conditions in the permits; second, the Corps did not require ‘‘inkind’’ mitigation; and, third, the Corps and the EPA were apparently biased toward enhancing deep water wetlands that housed

game species like fish and duck at the expense of shallow water

wetlands that enhance water quality and provide habitat for reptiles, amphibians and food sources for birds; fourth, the Corps

granted a large number of ‘‘after-the-fact’’ permits; and, fifth, the

Corps and the EPA were keeping poor records.

Even if the Corps had demanded that developers replace each

acre of wetlands they destroyed, a 1997 study by the Ohio EPA

found that, ‘‘from a functional perspective, mitigation projects are

not yet measuring up to natural sites with respect to flood water

retention, water quality improvement and habitat provision.’’ So I am looking forward to hearing from the Corps and the EPA

about what has been done to address these problems.

Now, Mr. Chairman, we will hear a lot of complaints about wetlands protections and their impact on private property rights. Some

might argue that the government should reimburse landowners for

the loss in property value caused by wetlands regulations, but also

I think we have to ask what about the landowners that brought

their land for a song because the buyer and the seller knew about

the wetlands restrictions? Should the government reimburse these

landowners?

And we are not—and if we are going to look at private property

rights, I don’t think that we should ignore the private property acts

of landowners who are negatively impacted by the loss of the wetlands. If the government allows the developer to fill in wetlands,

removing an important natural flood control device, who will reimburse the neighboring landowners when their homes are flooded?

What about the landowners that live, work and play near streams

and lakes that become more polluted because the water no longer

filters through the wetlands; and what about the public which is

interested in protecting the environment, saving endangered species and protecting habitat for migratory birds? How do we reimburse them?

Mr. Chairman, these are all important issues; and I look forward

to hearing from the witness.

I ask unanimous consent to hold the record open so members

may submit speeches and additional materials.

Again, I want to thank the Chair for holding this hearing. I know

the Chair has concern about how Federal rules and regulations impact people. So do I. And I also know that the witnesses here today

are reflecting on their own pain. We need to find out how that relates to the wetland policies of the United States of America.

Thank you.

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Mr. BURTON. Thank you, Mr. Kucinich.

Ms. Chenoweth, who requested this hearing some time ago; and

I want to apologize to her publicly for not moving on this more

quickly, but we finally got around to it.

Ms. Chenoweth-Hage.

Mrs. CHENOWETH-HAGE. Chairman Burton, I am just so deeply

grateful to you for holding this hearing today on fundamental

issues that impact the very freedoms and rights of American citizens.

You know, I have been acquainted with the Pozsgai family for a

number of years. In fact, that is literally one of the major reasons

why I ran for Congress. Because here was a case where a family

cried out, with the press, the national press, all the way from the

New York Times and the Washington Post and the San Francisco

Examiner and major television networks, crying out for redress, for

a redress of grievance for this heroic immigrant family, a family

who didn’t make much money but worked from the labor of their

own hands, couldn’t speak very good English but it was incumbent

upon them to understand the plethora of rules and regulations that

one could only acquire from studying the Code of Federal Regulations to understand them.

Now, I agree that there is a need for wetlands, but wetlands that

grow as a result of the lack of maintenance on the part of the city

of Morrisville from cleaning up a drainage ditch? That’s carrying

the definition of wetlands too far.

An immigrant family who, when told that they could, ‘‘mitigate

the damage,’’ it wasn’t given to them in writing about what the

terms might be or why and explained to them. They just said,

‘‘well, if you give us several thousand dollars maybe we can mitigate this.’’ Well, what did the government do in Hungary, in Communist Hungary? This was the very same kind of thing that John

Pozsgai fled a Communist regime from. He didn’t understand what

mitigation was, and so he reported it.

A lot of American citizens don’t understand what mitigating

terms is, especially when the government asks for several thousand

dollars. So after reporting it, the full force of the Federal Government came down on John Pozsgai one horrible day when he was

led away under arrest and his family didn’t know where he was

taken.

Interestingly enough, they finally found a lawyer, they finally located their father, and they called the Marshals and said, can we

get our dad out of jail? Vicky and Gloria. And they said, yes, that

would be fine. You will have to post bond. Well, fine, we will get

our attorney, and we will come down. They said, don’t worry about

your attorney. Just bring your checkbook. And so they did.

At that point in time, after they wrote the check, they were informed, oh, by the way, we can’t let your father go because we need

to search your home for guns and weapons.

Now, I ask you, Mr. Chairman, when in the course of liberty,

when in the course of justice, can any force in the Federal Government ask for a search of a man’s home without a search warrant,

a warrant that ties guns to the crime in the home? It couldn’t have

happened, but they didn’t understand the process, and so John

Pozsgai sat in jail while the Federal agents came in and tore up

8

the humble little Hungarian home looking for guns. Of course, they

didn’t find any guns. John Pozsgai had told them, I don’t need a

gun. I can go to the sheriff. He is just a few blocks away if I need

help. But they didn’t believe him. No, they had to prove who was

boss in this case. After all, John Pozsgai reported that he thought

the Federal Government was trying to bribe him when they said

they were simply trying to mitigate the situation.

Well, we understand mitigation, Mr. Chairman. We work in this

business, but can a Hungarian man who barely speaks English and

is functionally illiterate in terms of being able to read, comprehend

and understand English at that time, clear back in the 1980’s, understand what was going on? This is one of the most egregious

cases that I have ever heard of in the course of my work in public

policy and in the course of my work here in the Congress.

Mr. Chairman, I brought this case to your attention not because

my heart bleeds for this family and for what happened to them.

They don’t come from my district. They come from clear across the

country from the district that I represent, but this is such an egregious case it had to reach the highest levels of Congress or else I

just wasn’t going to go home.

So, Mr. Chairman, you have very well in your statement covered

the circumstances involved, but the fact is that the harassment

goes on and on and on. After Mr. Pozsgai has served his term, after

he was on probation—and the last call I got from John Pozsgai before I came to Congress was this: He had just received a notice

from the Department of Immigration and Naturalization, this freedom fighter, that he received notice that he was going to have to

go back to Hungary, being deported to Hungary, because he was

a convicted felon.

Now, is that how America welcomes their immigrants? Is this

what this Nation stands for, this Nation that was birthed in freedom and liberty? We welcome freedom fighters. We welcome good

American citizens, but because of the full force of the Federal Government they put up a psychological sign that said, Hungarian immigrants aren’t welcome unless they kowtow.

Thank you, Mr. Chairman, for holding this hearing. I do want to

say that I think that wetlands are important, but this was a drainage ditch that was constructed in 1934 by the city of Morrisville,

whose water was blocked by 7,000 tires that had been illegally disposed in this dump.

So we have a lot of work to do in terms of the whole wetland regulating authority, but, Mr. Chairman, never can this body turn a

deaf ear to the tragedies like John Pozsgai.

Again, I want to thank you for holding this hearing. I want to

thank Nicole Petrosino and Chris Caron for their very good work

and preparation.

Mr. BURTON. I want to thank you for bringing this to the attention of the committee.

[The prepared statement of Hon. Helen Chenoweth-Hage follows:]

9

10

11

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Mr. BURTON. With that, Mr. Allen, you are recognized.

Mr. ALLEN. Thank you, Mr. Chairman.

First, I would ask leave to submit a statement on behalf of

Henry Waxman, the ranking member.

Mr. BURTON. Without objection.

Mr. ALLEN. Mr. Chairman, thank you.

[The prepared statement of Hon. Henry A. Waxman follows:]

13

14

15

Mr. ALLEN. According to the New England Interstate Water Pollution Control Commission, the United States losses 100,000 acres

of wetlands every year; and I believe we need to act to reverse this

alarming trend.

I want to second the comments of Mr. Kucinich. I realize how difficult a situation this has been for the Pozsgai family and certainly

for thousands and thousands of people all across this country who

come in contact with this particular set of regulations. Some of

those cases are more difficult than others, and some are worked

out, and some are not.

Wetlands collect and filter our drinking water. Our sources of

clean drinking water are already imperiled by a number of different pollutants, including mercury. We need to be working together to protect sources of drinking water from a variety of pollutants, including mercury.

Wetlands collect water that would otherwise flood nearby basements, and that’s an issue in the Pozsgai case. Wetlands also protect our coastlines from flooding and storm damage. This is especially important in Coastal Maine, which I represent. Even more

important to Maine is the economic value of wetlands. The fishing

industry, which has been the backbone of the Maine economy for

centuries, is dependent on coastal wetlands and estuaries for

spawning grounds. Threats to coastal wetlands are a threat to the

way of life of many of my constituents.

Beyond the economic, health and environmental benefits that

wetlands provide for us, freshwater and coastal wetlands also provide a vital habitat for a diverse group of species, some of which

are endangered. I believe we have a responsibility to protect these

species and our environment in a balanced and reasonable manner.

Now, I realize that examples can be found of disproportionate responses to legitimate concerns on the part of the Federal Government. I am not here to excuse any wrongdoing on the part of the

government in the course of executing the law, although I do question whether this is the appropriate forum to retry individual cases

that have already been exhaustively adjudicated, and it is my understanding that this question involves more than simply filling in

an area designated as a wetland but also involves an issue simply

related to contempt of court.

However egregious the circumstances of an individual case may

have been, I cannot believe that one case study can be the rationale

for overturning a largely successful environmental policy. Our responsibility to the environment is simply too great.

I am proud of the work that the Bipartisan Oceans Caucus,

which I co-chair, has been doing and will continue to do to focus

attention on environmental issues related to the oceans. I look forward to working with colleagues on both sides of the aisle through

the Oceans Caucus to study and hopefully resolve some of the problems that have contributed to the frightening decline of wetlands

in this country.

In closing, I just want to say that, as I look at the panels, as I

listen to opening statements, I am disappointed that this hearing

is the way that this committee will do environmental policy this

year. Though there may indeed be some problems with Federal

wetlands policy that need to be examined, I am not persuaded that

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the approach that is reflected in the choice of panelists is the way

to go.

I hope I am wrong about this. I hope I am wrong, but, given the

nature of this hearing, I doubt that it is likely to improve our wetlands policies over the coming years.

Thank you, Mr. Chairman.

Mr. BURTON. Mr. Gilman.

Mr. GILMAN. Thank you, Mr. Chairman.

First, I would like to take this opportunity to thank Chairman

Burton for bringing this important issue before the committee

that’s been a problem for so many of us throughout the Nation, and

I would like to thank our panelists for providing our committee

with their views on how Federal wetlands policy has impacted their

lives and communities.

We all know that wetlands are a vital link between water and

land; and wetlands is a collective term for marshes, for swamps,

bogs and similar areas found in generally flat, vegetated areas and

depressions in our landscape and between dry land and water

along the edges of streams, rivers, lakes and coastline; and wetlands can be found in nearly every county and climactic zone in the

United States.

Regrettably, there has been too much of an error in the mapping

of wetlands and sometimes wetlands come in—maps of wetlands

come in after the fact when someone has been building on that

area.

Wetlands do act as a buffer against flooding and a filter to purify

streams and rivers throughout our Nation and serve as a breeding

habitat to thousands of migratory birds and assist in providing

clean drinking water to millions of Americans. However, protection

of wetlands and the EPA’s and Army Corps of Engineer’s policies

concerning the wetlands have been extremely controversial; and

the bureaucratic morass is impacted by an imprecise definition of

just what a wetland is.

Mr. Chairman, I would like to enter into the record a copy of correspondence I have received from Mr. David Hawkins, a realtor

from my district. He is concerned that the new permitting regulations are adversely affecting our region’s economy, and he states

that the most recent reduction and disturbance from one-third of

an acre to one-tenth of an acre for a national permit has created

a greater workload on the Army Corps of Engineers and applications for permits and wetland delineations have been seriously delayed because of the volume of the number of applications. The

usual turnaround, he says, of some 30 to 60 days has become 90

to 120 days, causing an unnecessary added time period to such permit approvals.

The economics of our area depend on a reasonable schedule for

such permits, and he is asking us to seek to increase the staff

available to handle the additional applications.

[The information referred to follows:]

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Mr. GILMAN. But I am also disturbed about the gentlelady’s case

that she has recited for us, and to have the Pozsgai family here to

indicate to us how there has been an abuse of the wetland regulations. I think that this is abominable, and I hope we can prevent

this from happening in the future.

We recite our concern for the Pozsgai—I hope I am pronouncing

that right—the Pozsgai problems that he is involved with; and we

want to apologize to him and his family for what he had to go

through because of the bureaucratic abuse of wetland legislation.

Accordingly, I am pleased that our committee will have this opportunity today to hear testimony from those whose lives have been

drastically affected by wetland regulation. Their input can play an

important role in any decisions that we may make with regard to

wetland protection policy.

So, Mr. Chairman, I again thank you for affording us this opportunity of expressing concerns about an important piece of legislation.

[The prepared statement of Hon. Benjamin A. Gilman follows:]

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Mr. BURTON. Thank you, Chairman Gilman.

Let me just say, before we go to Mr. Sanford, that this committee

has oversight over the entire Federal Government, and wherever

there is a waste or abuse of government powers, then we do have

the responsibility, and this committee is the right vehicle to look

into that.

Mr. Sanford.

Mr. SANFORD. Thank you, Mr. Chairman.

I would, first of all, thank you for raising this issue and holding

this hearing.

I would as well say to Ms. Chenoweth-Hage that, of sorts, she,

too, has been a freedom fighter. She has consistently fought on this

issue, and the Congress will be a poorer place in her absence because this is an issue that desperately needs to be addressed, and

it is part of what makes me a conservative. I mean, I hear stories

like the Pozsgai’s story and you think about that, the strength of

the Federal Government against a family like this, and it gives me

real reservation about giving the Federal Government any additional power.

In fact, I think there is a special irony to what is going on here

in that, you know, the Federal Government is—has historically, in

terms of a single entity, it is the largest entity in terms of draining

of wetlands in this country, if you look back on a historical basis.

So I think there is a real irony here.

I would say that I have to respectfully disagree with my colleague from Maine on the need to hold this hearing and the need

to hold it in this format. This issue has got to be addressed, and

I say that as one who has a very strong environmental voting

record. My colleagues on the Republican side basically call me a

‘‘greeny,’’ but I have come to a conclusion that when it relates to

wetland policy we have got a real, real problem. Our policy in its

present form is nonsensical; it is ridiculous. It is a bureaucratic morass, as Chairman Gilman just stated.

Let me give you an example, just to get this idea across.

In my home district, in South Carolina, unfortunately 200 years

ago there were slaves digging what they called dikes in areas of the

coast of South Carolina. Those dikes are still there. They are old

rice fields. And a constituent of mine was out there repairing one

of these dikes, which is done on a fairly regular basis. They get

checked afterward by the Corps; and the Corps person was there

afterward checking the dike and looked at an area there along the

edge of one of these dikes and said, you will have to fill this area

in.

He says, I don’t understand. This is inside the dike. We just

skinned it off by 6 inches, and we put this dirt on high land.

And the Corps person said, yes, I acknowledge that. That dirt

was put on high land, but this was a wetland area, and you disturbed the wetland area.

The conversation ensued and permits ensued, but the bottom line

was this: This person said, wait a minute, this doesn’t make any

sense to me. You are saying I have got to refill this wetland area

in, but this is not really a wetland. We control the water level with

dikes. We can set a one-way flap on this diked area such that we

could grow pine trees in here if we wanted.

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He said, it doesn’t matter. You have impacted it.

So what they had to do was—they had filled it with freshwater.

They let the freshwater out, which was all perfectly allowable.

They refilled it with saltwater, which was all perfectly allowable.

That killed off the freshwater vegetation. Then they were able to

drain the pond back down again and refill it. The regulator said,

that’s perfectly fine. My constituent said, tell me how that makes

any common sense at all. He says, it doesn’t, but we are just going

with the rules as they are now in place.

That is nonsensical law, if you can see that kind of 360 on a

patch of land basically drawn down by 6 inches. And I would say

that if we are ever going to get common sense on environmental

law—environmental law is there to protect ecosystems, and I think

what we would all recognize is ecosystems are diverse by their very

nature. So a wetland in the uplands of the West is very different

than a wetland along the coastal plane of South Carolina.

So I think this one-size-fits all has led to a lot of misinterpretation. Innocent people like my constituent in South Carolina or like

the Pozsgai family are being caught as victims as a result of this

morass, and I think it desperately needs to be addressed.

Again, I would reinforce the idea that addressing it won’t come

as quickly as it would have with Ms. Chenoweth-Hage leaving the

Congress, but it is something that I would beg of my colleague from

Maine and from other colleagues here on the Hill to address because it needs to be changed.

Mrs. CHENOWETH-HAGE [presiding]. Mrs. Biggert.

Mrs. BIGGERT. Thank you, Madam Chairman. I would like to

commend you for pursuing this type of hearing, and I would like

to commend Chairman Burton for holding the hearing.

I certainly understand the ecological significance of wetlands and

their need for protection, but I also understand the rights of property owners. I would like to also disagree with my colleague from

Maine. I don’t believe that the testimony we are to hear today is

an isolated incident, and this is an issue that very much needs to

be addressed.

During my first term in Congress, I have heard from a number

of property owners in my district who feel that their rights have

been violated because of our wetlands policy and the way that it

has been implemented.

In one instance, a small businessman was told he needed a permit to discharge anything into a nearby isolated pond. He didn’t

run a chemical company or anything like that. He ran a sportsmen’s club and there was a remote chance that some shot from a

shotgun might land in the water. And why did he need a permit

in this isolated pond on his property? Because at one end of the

pond there was a culvert that ran under a road to simply prevent

it from flooding in high rains.

Because of this culvert, the EPA and the Corps of Engineers in

their wisdom declared the pond a United States waterway. Furthermore, it took EPA over 2 years to get him his permit.

Another constituent was told he violated the Clean Water Act because he cleared brush from a ditch to ensure proper drainage of

his farmland, and the EPA slapped him with a huge fine, and he

no longer can farm the land.

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I understand the need for balance between protecting wetlands

and property rights, but these stories and their frequency would

seem to indicate that the scales are tipped in favor of the wetlands.

I hope that those testifying today for the Army Corps and the EPA

take these stories to heart. These are true stories about real people

trying to live real lives, and I wish they were just stories somebody

made up because that would mean that Federal and State agencies

were appropriately balancing wetland protection with private property rights.

It appears that that isn’t the case yet, but I am hopeful those testifying today can help us move in the right direction. Thank you.

Mrs. CHENOWETH-HAGE. Thank you very much.

I do want to state very clearly that this committee has not been

called to examine this case to retry it. The trial already occurred.

What the committee is investigating is the ongoing harassment

after Mr. Pozsgai has paid a tremendous price, and it is the ongoing harassment that this committee is looking into.

So, with that, we will now welcome our first panel to the witness

table. I am very pleased to welcome Paul Kamenar, Susan Dudley,

Victoria Pozsgai-Khoury, Gloria Pozsgai-Heater and Kathleen Andria.

I wonder if you would please stand and raise your arm to swear.

[Witnesses sworn.]

Mrs. CHENOWETH-HAGE. Mr. Kamenar, would you like to make

an opening statement?

STATEMENTS OF PAUL KAMENAR, WASHINGTON LEGAL FOUNDATION; SUSAN DUDLEY, MERCATUS CENTER; GLORIA

POZSGAI-HEATER, DAUGHTER OF JOHN POZSGAI; VICTORIA

POZSGAI-KHOURY, DAUGHTER OF JOHN POZSGAI; AND

KATHLEEN ANDRIA, DIRECTOR, AMERICAN BOTTOM CONSERVANCY, AND CHAIRMAN, ENVIRONMENT COMMITTEE

FOR EAST ST. LOUIS, COMMUNITY ACTION NETWORK

Mr. KAMENAR. Good morning, Madam Chairman and members of

the committee. My name is Paul Kamenar. I am the senior executive counsel of the Washington Legal Foundation. Thank you for inviting us to testify here on the regulation of wetlands by the Corps

of Engineers and the EPA and the application of the takings clause

of the fifth amendment and the commerce clause to wetland regulation and the real world impact of wetland regulation on private

property owners.

Our foundation is a nonprofit public interest policy center here

in Washington, DC, but we have members Nationwide who experience problems with the Corps of Engineers and the wetland regulation. We promote the free enterprise system, protect private property rights and oppose excessive government regulation. We also

sponsor an economic freedom law clinic at George Mason University Law School where I also serve as clinical professor of law.

Over the last 20 years, our foundation has litigated numerous

wetlands and environmental cases; and we have represented property rights groups as well as individual owners, such as the

Pozsgais in their appeal. Most recently, we filed a brief in the Supreme Court which will determine whether or not the Corps of Engineers has commerce clause jurisdiction over isolated wetlands.

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We are also representing another small business owner whose

business was raided by 21 armed EPA agents. He was indicted on

two felony counts. It was later discovered that the EPA had altered

the logbooks to make it appear the water quality was a violation.

The court threw out the charges, decried the EPA swat team tactics and said it was vexatious. That may be worth another hearing,

by the way.

Where does the Corps get authority to regulate wetlands? Congress under Section 404 gave the Corps authority to regulate the

discharge of dredged or fill material into navigable waters. Nowhere did Congress give authority to the Corps to regulate wetlands as the Corps would have the public believe.

In fact, we have a chart here. The Corps has a brochure called

‘‘Recognizing Wetlands, An Informational Pamphlet,’’ which states:

‘‘Section 404 of the Clean Water Act requires that anyone interested in depositing dredged or fill material into waters of the

United States, including wetlands,’’ must receive authorization for

such activities.

Note how they have the phrase, ‘‘including wetlands,’’ to give the

impression that Congress had that language in Section 404. They

try to emphasize that by even bolding that language and italicizing

it. The fact of the matter is, that does not appear in the statute.

This is all part of a regulatory action by the Corps defining what

is and what is not a water of the United States.

The Corps will try to claim they have jurisdiction here under

United States v. Riverside Bayview Homes, but there the court only

allowed them to regulate wetlands that are adjacent to open bodies

of water.

There is a serious commerce clause problem with the Corps regulating wetlands in people’s backyards. There are court cases that

have struck down such authority on the grounds that there was no

connection to interstate commerce. You also have the regulatory

takings implication of wetland regulations. In short, when the

Corps tells you to leave your property in its natural state, they are

essentially saying to you, we are depriving you of all economically

viable use of your property. The Supreme Court has said that that

constitutes a regulatory taking and just compensation is owed to

the property owner.

What the Corps does is turn the just compensation clause on its

head. By requiring mitigation, they are telling the property owner

you owe us, the government, money for you to reasonably use your

property.

It should be the other way around.

Finally, this hearing deals with cases such as the Pozsgais. As

I said, we represented them on appeal. One thing that’s interesting

about that case is that at the time, this essentially isolated wetland

was subject to what was called Nationwide Permit 26, which means

he was entitled to fill up to 10 acres of the wetlands on this property. At this point, they claim he has filled 4 acres. He went to jail

for 3 years for that. The way I read the law, he is entitled to fill

up another 6 acres of his land.

In pure catch-22 fashion, the Corps was demanding that Mr.

Pozsgai fill out a permit application, when the Corps’s own regulaVerDate 11-MAY-2000 08:55 Aug 07, 2001 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 C:\DOCS\72734.TXT HGOVREF1 PsN: HGOVREF1
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tions state that if you have a Nationwide Permit 26, you don’t have

to fill out the permit.

This is not an isolated case. Ocie Mills and his son were sentenced to the Federal penitentiary for 21 months for putting 19

loads of clean building sand on their property.

Members of the committee, these are outrageous examples. I

could go on and on. They are in my testimony. For these reasons,

though, I think it is important that Congress and this committee

continue to exercise its diligent oversight over the Corps and EPA

to ensure that these public servants of the Corps and EPA are carrying out their duties in a responsible manner. Thank you.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Kamenar.

[The prepared statement of Mr. Kamenar follows:]

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Mrs. CHENOWETH-HAGE. The Chair now recognizes Ms. Susan

Dudley from the Mercatus Center.

Ms. DUDLEY. Well, we pronounce it Mercatus, even though I

think the proper Latin pronunciation is Mercatus.

Thank you for inviting me. I am Susan Dudley, and I am a senior research fellow and deputy director of the Regulatory Studies

Program at the Mercatus Center. It is a research, education and

outreach organization at George Mason University. My remarks

today are my own.

They are based on an analysis we submitted as part of our public

interest comment project in 1998 to the Army Corps of Engineers

on the Nationwide permit regulations.

As Mr. Kamenar mentioned, Section 404 of the Clean Water Act

prohibits the dredging or filling of navigable waters without an

Army Corps of Engineers permit. However, over the last 25 years,

the interpretation of navigable waters has evolved first to include

wetlands adjacent to navigable waters and subsequently to include

all wetlands. Under the current Federal Government definition,

there are over 100 million acres of protected wetlands in the

United States. Over 80 percent of these wetlands are on private

property.

The Corps has developed a system of Nationwide permits that

allow certain activities in certain environments without time consuming case-by-case reviews. However, this last March, the Corps

markedly reduced the availability of this streamlined program in

favor of case-by-case approval of individual activities that affect

more than one-half acre.

Since approximately 90 percent of activities permitted under the

Corps’ Section 404 program have been authorized through the Nationwide permits, the shift toward more case-by-case review poses

not only serious challenges to small property owners but also to the

Corps’ ability to function efficiently.

The Corps estimates that under its new regulations it will receive over 2,800 additional permit applications that will require

case-by-case review each year.

It predicts the new regulation will impose direct costs on the

public of $34 million a year. The National Association of Counties

predicts much higher public costs, on the order of $300 million per

year. These estimates of direct costs do not include the costs of increasing the already long delays Americans face when applying for

permits, nor the possibility that taxpayers will be asked to pay for

larger staff to manage the increased workload.

What environmental gain can Americans expect to get from these

more burdensome procedures? The Corps has not quantified that,

but according to researchers, voluntary, incentive-based programs,

including those of the Fish and Wildlife Service, and the Department of Agriculture, as well as States and conservation groups,

have been far more effective than the Corps’ regulatory program at

stemming the loss of wetlands since the mid-1980’s. Indeed, reviews of Federal data suggest that not only has the U.S. achieved

the goal of no net loss of wetlands, but it would be achieving that

goal even without the Section 404 program. In other words, if funds

used to run the Corps of Engineers regulatory program were diVerDate 11-MAY-2000 08:55 Aug 07, 2001 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 C:\DOCS\72734.TXT HGOVREF1 PsN: HGOVREF1
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verted to voluntary incentive programs, the rate of wetland gains

would likely be even greater.

The ineffectiveness of the Corps’ program compared to incentivebased programs is due to simple economics. Land use restrictions

reduce private incentives to protect wetlands. Filled land may

sometimes be more valuable to the owners than wetland, even if

the social value of the wetland is significant. The current program

aggravates this underlying problem by reducing the private value

of wetlands to landowners. Land use restrictions provide no incentives to property owners to devise creative solutions to manage and

protect wetland resources. Instead private owners are pitted

against Corps’ permit writers because the nature of land use restrictions creates an inherent conflict. In contrast, incentive-based

programs foster cooperation by allowing a property owner to reap

the benefits of wetlands preservation.

Chairman Burton and Mr. Kamenar mentioned the takings

clause of the Constitution. This requirement recognizes not only

that a tradeoff sometimes exists between social values and private

values as in the case of wetlands, but also the importance of the

compensation mechanism in aligning private and public incentives.

The Corps of Engineers has an important mission, but it would do

well to learn from the insights of our forefathers and the success

of existing incentive-based programs.

The Section 404 program is characterized by burdensome review

processes, lengthy delays, and enforcement actions that often appear incommensurate with the violation. Private landowners are

denied the use of their land without compensation and without fair

consideration of the net social effects, both costs and benefits of use

restrictions. Rather than centralizing control over privately owned,

local resources, the Corps should endeavor to enhance private incentives to manage wetlands and leave the resolution of specific

intrastate issues to State and local authorities. Thank you.

Mrs. CHENOWETH-HAGE [presiding]. Thank you, Ms. Dudley.

[The prepared statement of Ms. Dudley follows:]

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Mrs. CHENOWETH-HAGE. The Chair recognizes Ms. PozsgaiKhoury.

Ms. POZSGAI-KHOURY. Madam Chairman, members of the committee, I am honored and appreciate this opportunity to appear before this committee today. My name is Victoria Pozsgai-Khoury. I

am the daughter of John Pozsgai of Morrisville, PA. I will speak

briefly on his background and the history of his case. Additionally,

I will explain the absolutely devastating effects that impersonal

and bureaucratic agencies like the Army Corps of Engineers and

the Environmental Protection Agency have had upon families and

communities.

First, you should understand why I am speaking to the committee today instead of my father. My father is a first-generation immigrant to this country. He can communicate adequately in

English, but it is sometimes broken and sometimes results in a

misunderstanding in both meaning and intent.

Members of the committee, my father was born in prewar Hungary. As a small child, he witnessed horrendous actions of a truly

tyrannical government. Each day he witnessed the Nazis corralling

the Jews and other dissidents into gated cattle cars across the

street from his home. These were his formative memories. Later in

his life he was forcibly conscripted to serve the Soviet Army as a

mechanic. All he ever wished to do was to raise his family and live

a humble life; however, this was not to be because of the Hungarian Revolution. At the time my father was told he would be forcibly

reintegrated into the Soviet Army. He could not morally consent to

fighting his fellow countrymen, so he fled to freedom in America.

My father raised our family with the belief that America was not

just a good country, but a great Nation. Members of the committee,

Mr. Chairman, this country was good to my father. Nowhere else

in the world would he have been able to arrive with nothing, buy

a piece of property, and build a truck repair business. For this,

both he and my family are incredibly thankful.

However, this was not to be accomplished without literal sweat

and blood. He took no vacations or breaks over the course of 40

years, none. He had no relatives to help him build his business,

and his immediate family lived in a town where the word ‘‘immigrant’’ was literally an epithet.

On January 15, 1964, my father would realize the proudest day

of his life when he became a naturalized American citizen. My parents continued to struggle for over 40 years, but they were ultimately successful in building a solid truck repair business. This is

John Pozsgai, my father.

Both my sister and myself have vivid memories of playing in the

illegal dump located across the street when we were children. It is

a 14-acre plot of land that has been filled with assorted junk such

as cars, steel remnants, fill, and tires, thousands of tires. Not surprisingly, a tire store was located next to our dump. The dump contained a stormwater drainage ditch system. This ditch was filled

with old tires. Our road and basement were flooded every single

year for approximately 20 years because of these old tires, and

since we removed them, it has never been flooded for the past decade.

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In 1986, my father signed an agreement of sale. He wanted to

build a 12,500-square-foot building that would expand his truck repair business and enhance the community. He removed well over

5,000 tires from our dump, approximately 1,000 tires of which were

in the drainage ditch. Then, within months of acquiring the property, notices were sent to my father from the Army Corps of Engineers informing him of the presence of wetland. These supposed

wetlands stem from a stream that was connected to navigable waters of the United States.

Mr. Chairman, members of the committee, a stream never, never

ran through our property. From the beginning, it was a stormwater

drainage ditch that was installed by the township of Morrisville in

1936. We repeatedly told this to the Army Corps of Engineers, yet

they never believed us. Just this past year, the township of Morrisville has finally recognized the responsibility for the upkeep of this

stormwater drainage ditch.

Mr. Chairman, members of the committee, my father is the type

of man who will tell you straight to your face whether he likes you

or not. When people came to our property to trespass on it, he told

them in no uncertain terms to leave. He believed that America was

still a country where a man’s property was his own, and that the

government needed a warrant before attempting to collect evidence

to use against any citizen.

Please remember his background. He came to this country to escape governmental tyranny over his family’s life. When my father

started receiving notices, he did not fully understand some of them.

Some of the notices were forwarded to our prior lawyer who never

told us about them, many of them actually referred to a completely

different piece of property with another tax parcel number, and a

few my father flat out ignored because he was totally convinced

that there was a mix-up between the properties being cited.

Remember, this was an illegal dump for approximately 30 years.

People had deposited fill, cars and tires all over it. He had never

in his wildest imagination thought he would ever be thrown into

jail for adding clean fill to this dump.

In 1987, my father was informed by the Army Corps of Engineers

that he was being sued to restore the property to its previous condition. It is important that you understand that the Army Corps

wanted him to reestablish the damming effect that approximately

1,000 tires in a stormwater drainage ditch had. In effect, they were

telling him to redam his property that had been an illegal dump

for over 30 years.

When he was told by the Army Corps that he needed a permit

to build his truck repair shop, he obtained a water quality permit

from the Pennsylvania Department of Environmental Resources.

He thought, we thought, that he had gotten the right permit. He

thought everything was OK, because he was told by the Department of Environmental Resources that this dump was not on the

national wetlands inventory.

Mr. Chairman, members of the committee, at every point along

the way, my father kept asking, how can we make this work?

When he was told by the Army Corps of Engineers he must do

mitigation to build on his property, he thought he was being asked

for a bribe. He went to the FBI to report it. He never fully underVerDate 11-MAY-2000 08:55 Aug 07, 2001 Jkt 000000 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 C:\DOCS\72734.TXT HGOVREF1 PsN: HGOVREF1
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stood what he was accused of doing wrong, yet the Army Corps

sued him. Concurrently, the Army Corps referred his case to the

Environmental Protection Agency, who then referred it to the Department of Justice for criminal prosecution. At the same time he

was being sued by the Army Corps, he was continually being asked

to add more information to process his permit. This was our catch22.

The effect this had upon my family is absolutely devastating. In

the end, my father was imprisoned for a year and a half. He lived

in a halfway house for a year and a half and was given 5 years

supervised probation. At the time we lost my father, he was the

sole support of my family for over 30 years. My family was forced

to declare bankruptcy because our family was unable to pay the

property tax on our dump. Subsequently, the judge lowered his fine

to $5,000. I lost my job as a journalist after my editor explained

to me that my father’s name was too visible for the news. But then

the thing that hurt the most was scheduling my own wedding between trials and appeals.

I sincerely wonder if the EPA has ever considered investigating

the Army Corps for the countless acres of wetlands they regularly

destroy in their projects. Now, that would be an interesting exercise, to say the least.

While my father was still in prison, the Army Corps ordered a

restoration of our newly acquired property. They wanted to restore

it to wetlands.

Now, in the process of restoring our property, they excavated 10

acres, moving 400 truckloads of fill from one side of the property

to other. They dug a hole and said it would turn into a wetlands

pond. Ten years later the hole is a hole, it is not a pond.

Mr. Chairman, members of the committee, this harassment has

simply gone too far. Our family has been bankrupted. My father

lost the use of his property without ever being compensated. Worst

of all, my father literally lost 3 years of his life, and we lost our

father. This occurred even though the Solicitor General of the

United States admitted that the evidence the government had jurisdiction on the Pozsgai property was admittedly thin.

So Mr. Chairman, members of the committee, many of you may

be wondering what can be done. In my written testimony, I propose

a five-tiered solution that I would ask you to study carefully. I

promise you, it makes much more sense than the rules that we are

living under now.

In conclusion, I still believe America is a great Nation. I am firmly convinced that in no other Nation would two simple daughters

of a Hungarian immigrant be allowed to honor this full committee

of its governing body. However, I am not sure my father feels the

same way. He is a man who believed enough in this country to

seek citizenship. Now he is a convicted felon, and he still does not

understand why he was ever charged.

Mr. Chairman, members of the committee, I thank you so very

much.

Mr. BURTON [presiding]. Thank you very much. That is a heartrending story. I would like to have those five recommendations that

you make, and we will take a close look at all of those.

[The prepared statement of Ms. Pozsgai-Khoury follows:]

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Mr. BURTON. Gloria Pozsgai-Heater.

Ms. POZSGAI-HEATER. I come before you today to testify on behalf

of my father, John Pozsgai. My sister testified on my father’s background and the effect his case had upon our family. Today I would

like to speak to you about the ongoing problems that we are still

experiencing with respect to the U.S. Army Corps of Engineers.

Mr. Chairman, members of the committee, my father has suffered. He is now an old man, a Hungarian immigrant who fled his

country to find freedom. And what has he found? Persecution by

any other name, bureaucracy.

Mr. Chairman, you would think that after sending my father to

jail, fining him, bankrupting our family and devastating our lives,

that the government had gotten all that they wanted. However,

after the restoration of my father’s property, both my father and

his lawyers had believed he had fully complied with the requirements of the law with respect to the court order. Then my father

received a letter from the Army Corps dated November 24, 1999,

8 years after the restoration had been completed and his jail

termed had finished. The Army Corps’ letter accused him of new

violations of Section 301 of the Clean Water Act.

In my father’s response to this letter, he requested to know the

origin of the new complaint. The Army Corps never responded to

this letter. Instead they demanded that they come back to inspect

my father’s property on January 3, 2000. The representative of the

Army Corps maintained that the inspection resulted merely from

a routine overflight of my father’s property. Furthermore, during

that inspection, the representative of the Army Corps was unable

to fully match his maps to my father’s property. And at the cessation of the inspection, the Army Corps representative stated that

he could see no new violation.

Contrary to what we had been told, this was not the case. Four

months later, my father received a letter from the Army Corps

dated May 5, 2000. The letter then accused my father of not complying with the Federal court order from the civil trial in 1988. It

further accused him of new violations of a cease and desist letter

the Army Corps had issued previously.

Mr. Chairman, members of the committee, my father and our

family have been put through the ringer over this dump. The only

thing we ever wanted to do was improve and clean up this 30-yearold dump. We simply cannot understand why the Army Corps is so

stubborn in continuing to prevent us from building on our land. My

father has done absolutely nothing, nothing to this land, since the

court order. Now we have heard that the Army Corps has again referred material to the Department of Justice. When will this end?

Mr. Chairman and members of the committee, I am incredibly

grateful to be able to testify in front of you today. My father and

my family have suffered through this bureaucratic nightmare long

enough. We need your help. The property owners of America need

your help. All I ask is that you listen impartially to the testimony

today. I am convinced that you will see the truth. Thank you, Mr.

Chairman.

Mr. BURTON. Thank you.

[The prepared statement of Ms. Pozsgai-Heater follows:]

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Mr. BURTON. Ms. Andria.

Ms. ANDRIA. Mr. Chairman and members of the committee,

through some incredible fluke, we are on the same panel. My

grandfather is also from Hungary, and my grandfather, the other

grandfather, was a Macedonian freedom fighter.

My name is Kathy Andria. I am a director of the American Bottom Conservancy, which is a not-for-profit conservation group in

East Saint Louis, IL, the area across the river from St. Louis. I am

also a board member and chair of the Environment Committee of

the East Saint Louis Community Action Network, a coalition of 26

neighborhood organizations and community groups working for the

betterment of the city of East Saint Louis. I thank you for your invitation to testify here today on the Corps’ wetland policy.

The American Bottom is the southwestern Illinois floodplain of

the Mississippi River. It is called Bottom because it was the bottom

of the river. Levees and floodwalls allowed the development of cities and towns, which share the Bottom with farmland, but it remains a floodplain, and as such we flood.

There are 150,000 to 200,000 people living in the American Bottom. It is mostly an inconvenience to farmers when their land

floods, but not so for communities. When the river is high, our

groundwater is high. The river’s tributaries, our streams, creeks

and ditches, they are high and overflow their banks.

The American Bottom is a wonderfully diverse area. It is home

to the United Nations World Heritage Cahokia Mounds. It is also

the horseradish capital of the world. There are soybean and cornfields adjacent to steel mills, oil refineries and smelters. It is home

to Site No. 1 of the Lewis and Clark Trail. It has a marvelous view

of the confluence of the Mississippi and Missouri Rivers. We have

the world’s longest pedestrian bridge, which crosses the Mississippi

River. Unfortunately, the Illinois entrance to that bridge is from a

landfill which was allowed to develop and expand in the floodplain,

in islands on a wetland in the middle of the Mississippi River.

The American Bottom was declared a Presidential disaster area

for flooding in 1993, 1994, 1995, and 1996, 4 straight years. Some

eight communities in the Bottom have already been bought out by

FEMA, and there are a number of others which should be bought

out, including neighborhoods in the city of East Saint Louis, much

of which, like the rest of the cities in the Bottom, were built in and

around wetlands.

I have a map over here that shows. This is the city of East Saint

Louis. The blue on the left is the Mississippi River. Everything in

blue that you see is the wetlands and flood hazard areas. Everything in red there are areas that reported that flood.

After all of the flooding, development in our area continues in the

Bottom and on the bluffs. The bluffs send their stormwater pouring

down into the Bottom. The American Bottom has recently been discovered by developers who have run out of areas within reasonable

commuting distance west of St. Louis and have turned their attention to the Illinois side of the river. They have targeted prime farmland; wetlands, which are considered cheap swamp land; and anything and everything in sight. Our cities, towns and villages are

eager to grow, but most have no comprehensive plans as to how to

grow, and no real understanding of where not to grow. Developers

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look for the cheapest land available to them. Unfortunately, it is

often the swampland, valued wetlands that help keep us from

flooding.

In your memorandum to this hearing, you say that wetlands act

as a buffer against flooding. Actually they are like sponges, holding

the water and then releasing it. They get the stormwater, and then

they slowly release it, and this can help keep the adjacent areas

from flooding. One acre of wetlands can hold up to half a million

gallons of water. If you take that wetland away, you lose that flood

control function. If you fill it in and then pave it over, which is

what the developers usually do, you have created millions more

gallons of water that will run to the adjacent community or to

neighboring homes. If you put that sponge elsewhere, which is

what the Corps calls mitigation, when the stormwater pours onto

the original site, the sponge is no longer there to absorb that water.

Then you have flooding. Added to that problem is the extra

stormwater runoff from development on the bluffs that comes running down into the Bottom.

Our cities and villages are old. Our sewers are combined—many

of them—that combine sanitary/storm sewers. When the river and

groundwater levels fall and rise, our sewers frequently break, and

when stormwater and floodwaters inundate the combined sewers,

our families and their children are subjected to raw sewage. Yet

the State and the Federal Government give tax incentives and economic assistance to developers to develop in the floodplain, and the

Corps of Engineers issues permits for them to develop in wetlands.

I used to think of wetlands as just marvelous places where one

could see egrets and herons. Being on the Mississippi River, we are

on the flyway, and we frequently see great numbers of herons and

egrets, the migratory waterfowl. But in 1993, and I am sure you

all remember that was the year of our big flood, I learned the role

that wetlands play in flood control, and I have since been active as

a wetland watchdog.

I understand many of you think that the Corps is too restrictive

in its issuance of wetland development permits. Perhaps that is so

in other parts of the country. I can only speak about the St. Louis

district. In the last 10 years, the Corps has issued tens of thousands of permits to develop wetlands. It has denied fewer than five.

A 102-acre landfill was allowed to expand on the island in the Mississippi River after it had been flooded and the residents were

forced to leave through a FEMA buyout. Another 176-acre landfill

was permitted to expand in the bed of a creek just outside of East

Saint Louis. I also have a picture of that. A giant warehouse complex was permitted to be developed in 2,500 acres of wetlands. This

shows the landfill, and it shows the creek, and this is—they are

even applying for another expansion now. A giant warehouse was

permitted to be developed in 2,500——

Mr. BURTON. Excuse me just 1 minute. We have a vote on the

floor, and we have about 7 minutes until the vote. Could you summarize in the next 2 minutes so we can make the vote?

Ms. ANDRIA. I sure will. Thank you.

Just last year, an automobile racetrack was originally built in

wetlands nicknamed the Swamp. It has since expanded; applied to

the Corps to build parking lots for 20,000 cars in the wetlands. It

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is right next to other communities that flood. This was the third

permit application to the Corps, and this is what we call

piecemealing. As we sit here today, they are getting another permit

to expand for an access road.

The map—I did the map—the children walking home from

schools are subjected to raw sewage. Two schools that were built

in East Saint Louis in wetlands are now closed.

You asked, should the Corps be less restrictive and allow more

development in the wetlands? The answer is a resounding no. In

your efforts to cut Federal Government, many badly needed programs that need funding don’t have the money to operate. Enforcement of violations of the Clean Water Act is one, and in St. Louis

the enforcement section has been combined with the permit reviewer section, and the permit reviewers are told to work on permits, and they have no time for enforcement. But this is a false

savings, because the resulting flooding is going to cause millions of

more dollars of disaster relief.

Dobrey Slough is another one, and I would ask you to read what

I write about Dobrey Slough. These are residents who have been

permitted to—have to live in this floodplain, and the developers are

allowed to come back over and over and over again and develop.

It is a slough, it is a wetlands. It should never have been developed. These people have lost their homes; their foundations are

cracking. There are many people who are having nervous breakdowns over it.

Will the Corps allow more development? History tells us they

will. I urge you, for all of the people who are being subjected to

this, if you do anything, tighten the rules; make sure that the laws

protecting our wetlands, our sponges are enforced; and please, help

to close the Tulloch loophole that allows wetlands to be developed.

There are other ideas that I am sure you have. The Wetlands Reserve Program needs to be expanded and fully funded. Enforcing

and tightening the current laws could save billions of dollars in the

long run. The cost to taxpayers and our psyche as a Nation is too

high to allow homeowners to lose their homes and to allow children

to be exposed to raw sewage. Yes, there is a need for government

reform with the Corps’ wetlands policy, but it should be more restrictive, not less, and it should be enforced for everyone.

Thank you for the opportunity to speak with you today.

Mr. BURTON. Thank you, Ms. Andria.

[The prepared statement of Ms. Andria follows:]

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Mr. BURTON. We will recess for the vote. We should be back here

in about 10 or 12 minutes.

[Recess.]

Mr. BURTON. The committee will come to order.

Let me start, and I will try to restrict my questions to 5 minutes,

and then I will yield to the gentlewoman from Idaho.

Mr. Kamenar.

Mr. KAMENAR. By the way, I am also Hungarian. Both sides of

my grandparents came from Hungary, so we have a whole Hungarian panel.

Mr. BURTON. I am Heinz. I come in 57 varieties, and I am from

all over the place.

Which Federal Government agency is the final authority on wetlands policy; do you know?

Mr. KAMENAR. Well, I think that may be the Environmental Protection Agency in the sense that under Section 1344, they have—

Section 404 is 33 U.S.C. 1344—they have veto authority over permits that are granted by the Corps of Engineers. It is a very rarely

used veto authority. They have a memorandum of understanding

in terms of sort of cojurisdiction, their definitions of wetlands are

essentially the same, and so forth. They have just recently changed

the definition of pollutants, because the EPA had this definition

dealing with discharging out of a pipe into the water under Section

402, and the Corps has a definition of pollutants where you need

a permit under Section 404.

The irony is—and I am glad you asked this question—that in the

Pozsgai case, the U.S. attorney first charged Mr. Pozsgai for not

having a Section 402 permit, which is what factories have when

they put their pipes directly into the water.

Mr. BURTON. If you could just get back a little bit further from

the mic. You sound a little like Elmer Gantry.

Mr. KAMENAR. Sorry about that.

I am just saying that EPA has the authority over—veto authority, but it is basically administered by the Corps of Engineers, and

I am sure the Corps can speak to that.

Mr. BURTON. Why does there seem to be such a lack of consultation between government agencies over how to define a wetland

and how to pursue a consistent and sensible wetlands policy?

Mr. KAMENAR. Well, you do have a number of government agencies that do have overlapping jurisdiction. They do not seem to be

reading from the same sheet of music in terms of what is a wetland. There is this 1987 Wetland Delineation Manual that presumably is the one that everyone is supposedly following. By the way,

it is very hard to find that manual on the Corps of Engineers’ Web

site. They supposedly want to be user-friendly and let the regulated

community know what is going on. I have searched in vain for several hours trying to find that, and it is actually on the Web site,

I believe, down at the Corps in Vicksburg, MS. So there is this

problem of trying to get together.

Mr. BURTON. Let me just ask you about the Pozsgai case. Have

you looked into that in any detail?

Mr. KAMENAR. Well, we represented Mr. Pozsgai on the appeal

in that case. I was not the trial attorney, but I did——

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Mr. BURTON. But you are very familiar with all of the aspects of

it?

Mr. KAMENAR. It has been a few years, but I am fairly familiar

with it.

Mr. BURTON. Well, I would just like to have from your legal perspective your view on how he was treated. It appears to me, and

I think most members of the committee, even though we are very

concerned about ecological problems and wetlands, that the agencies involved, including the Justice Department, went clear overboard in meting out punishment to this family and to this gentleman. Can you give us your legal opinion on that?

Mr. KAMENAR. Yes. It was clearly a case of overkill. It was using

a sledgehammer to kill a gnat. The Corps, I think, felt that they

had an easy target, that the EPA felt that they had an easy target,

that here is what they claim to be a wetland. They sent out a cease

and desist letter. I use that word ‘‘letter,’’ I underline that, because

they are supposed to send out cease and desist orders, formal orders, which they never did in this case.

It was always kind of weird how this case was handled. He was

eligible for a Nationwide Permit No. 26, because this so-called wetland was above the headwaters, which is a technical term meaning

that the flow of the drainage ditch was less than 5 cubic feet per

second, which means that he could fill 1 acre right off the bat without even submitting any prenotification. So it just seemed that they

felt that he was defiant, and they were going to make an example

out of him, and they certainly did.

Again, this is not an isolated case. I mentioned the Ocie Mills

case.

Mr. BURTON. I understand.

Let me just say, it seems to me that the government went overboard as well. Even though we are concerned about preserving wetland, and we understand from the gentlewoman from East Saint

Louis the problems that can occur, there is no question, no question, that we should not be building those areas, and we should

make sure that wetlands are protected.

Mr. KAMENAR. Absolutely, right.

Mr. BURTON. But in this particular case where it was a drainage

ditch that was plugged up by spare tires, and he was penalized so

severely, is there any case for restitution from the agencies involved or for some recourse for this family?

Mr. KAMENAR. No, there isn’t in that regard. There still is the

possibility that he can seek compensation under the takings clause,

if, in fact, as it appears to be, he is denied all economically viable

use of his property, or a good chunk of it.

Part of the problem is when you go back to the Corps for what

they call after-the-fact permits, they do allow that in some cases,

but in other cases they won’t allow you to do it unless you restore

the property. So you have this anomaly of saying, OK, you restore

the property, then we will look at your permit, and then you can

put the fill back in again. I mean, it seems like it doesn’t make

much sense in that regard.

So there doesn’t seem to be much recourse unless the Corps is

willing to sit down now and take a hard look at this and say, here

is what you can do with your property. You can build your garage

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here, you can do something over here, but it looks like from—and,

again, I haven’t been the recent counsel; the local counsel is here

who has been handling some of the recent correspondence. I don’t

know exactly where legally it stands.

Mr. BURTON. OK. My time has expired.

I would just like to know one last thing. Are there a lot of cases

like this where the agencies involved have gone too far?

Mr. KAMENAR. Oh, it is absolutely clear that the agencies have

gone too far. I mentioned a couple in my testimony.

Mr. BURTON. You don’t need to get into details.

What I would like to have as chairman of the committee, I would

like to have as many examples as you can give, not where there

are legitimate problems like the gentlewoman from East Saint

Louis talked about, but where there has been overstepping of the

bounds of reasonableness by the EPA and the Corps of Engineers.

If we have those, maybe we will have a series of hearings and

bring them in and just go through these one by one, so that maybe

we can come up with some more sensible approaches of dealing

with the problems of preserving our wetlands, but at the same time

not going overboard and beating people to death when it is not necessary.

Mr. KAMENAR. Sure, absolutely.

Mr. BURTON. Mr. Kucinich.

Mr. KUCINICH. Thank you, Mr. Chairman.

Again, thanks to the witnesses.

Ms. Andria, I left to vote before I heard all of your testimony, but

I did have the chance to read it prior to you delivering it.

Now, in your testimony about your concern about developers, you

testified that developers can avoid the intent of wetlands protection

by applying for permits in a piecemeal fashion. What do you mean?

Ms. ANDRIA. The one instance that—I mean, there are many instances, but for time’s sake, I will cite one, the Gateway Raceway.

It was a little racetrack, drag strip, called the Swamp. A developer

came in from California, wanted to expand it, asked for one-third

of an acre. This was, I think, in 1997. He came back the following

year and asked for 40 acres. He came the next year, and this was

the one asking for the emergency access permit, which didn’t go to

public inspection, and so I am not sure what—how many acres was

asked for then, and then he asked for 11.5 to put the 20,000 cars

in for parking lots. This last one, he has asked to widen the road

that goes through the wetland into a four-lane superhighway. So

that is one example of piecemealing.

Mr. KUCINICH. So you are talking about the Gateway Racetrack

expansion?

Ms. ANDRIA. That is the Gateway Racetrack expansion.

Mr. KUCINICH. Is it your sense, after looking at that case, that

the person who was the applicant may have misled the government?

Ms. ANDRIA. Absolutely, because the man was an experienced

racetrack developer in California at Long Beach, and, I mean, surely when he bought the land, he knew he wanted to expand it to

150,000 seats, he surely knew that he was going to need a parking

lot. He bought the land because it was cheap. He could have gone

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and should have gone up into the highlands and not developed

right there. He knew there was flooding.

Mr. KUCINICH. Thank you.

Mr. Chairman, I actually have a letter here from the EPA to the

Corps in this Gateway case, which, in part, states, ‘‘We feel that

Gateway may have deliberately misled your district on its intent

for this road, and we do not look favorably upon this duplicity.

However, if there is an absolute need for this roadway expansion,

it would result in only 0.51 acres of wetland impact.’’ I would like to submit this, if I may.

Mr. BURTON. Without objection.

[The information referred to follows:]

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Mr. KUCINICH. Also, to Ms. Andria—thank you, Mr. Chairman.

Do you believe that wetlands policy is not just about the property

rights of the landowner once they develop the land, but it is also

about the property rights of landowners that would be harmed by

a loss of wetlands?

Ms. ANDRIA. Chairman Burton said something about marginal

wetlands, and that is one thing that I don’t think that is ever properly addressed. I mean, there is little pockets of wetlands that

sometimes might seem marginal, but if you live in an area like

East Saint Louis and the area there that is full of steel mills, full

of abandoned territory, if you can drive by and see egrets, that is

really wonderful. But the whole issue of the impact on neighbors

is so important. It has to be respected, what you do to your neighbors, and what your impact is on your land. I understand people

who want to do that, but when it affects the surrounding territory,

that absolutely should not be permitted.

Mr. KUCINICH. In a number of instances, the Corps and the EPA

allowed developers to fill a wetland if they create or enhance a wetland elsewhere. In fact, mitigation banking, where developers buy

part of a site that will become wetlands in order to qualify for a

permit, is becoming increasingly popular.

I am concerned that the policy could create problems because the

newly created wetlands may not provide the flood and water quality protections to the same people that are impacted by the proposed development.

Do you share concerns like that?

Ms. ANDRIA. The thing about—I mean, you lose the water quality. Some of the areas in the Bottom get their water from the Mississippi. There are others on the bluffs that use the aquifer, and

that is contaminating. There are different areas that need concern,

and it is hard to address them in just these few minutes.

Mr. KUCINICH. Well, I think you have probably covered that.

Thank you, Mr. Chairman.

Mr. BURTON. Thank you, Mr. Kucinich.

Mrs. Chenoweth.

Mrs. CHENOWETH-HAGE. Mr. Kamenar, I want to, in my questions with you—and I can cite numerous cases, as can you, where

large corporations and individuals have gotten away with fines,

simply fines for much, much larger damage. I think of the Exxon

Valdez case that was featured in the CNN clip, etc., just to begin

with. But I also notice that EPA cited the Pennsylvania Department of Transportation for wetlands violations in Bucks County in

March 1999. This was well after the Pozsgai case. At the time, EPA

was seeking a fine from the Pennsylvania Department of Transportation for $10,000.

Do you know if EPA ever cited PENDOT for illegally filling the

part of Mr. Pozsgai’s property condemned in the taking of August

24, 1973?

Mr. KAMENAR. I am afraid I don’t have the answer to that question, since it deals with a local issue way after the case when I was

involved. The Pozsgai daughters or maybe their counsel might have

some information on that.

Ms. POZSGAI-KHOURY. As far as we know, the answer to that

question is no, they have never.

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Mrs. CHENOWETH-HAGE. The Pennsylvania Department of Transportation was never fined or cited?

Ms. POZSGAI-KHOURY. Never fined or cited or anything done on

that property.

Mrs. CHENOWETH-HAGE. Amazing.

Maybe it is because they weren’t Hungarian and didn’t speak

with an accent, I don’t know.

But, Mr. Kamenar, can you explain why the Army Corps and the

EPA used different methods of evaluation in determining wetlands,

and do you have any idea as to why they apply separate and sometimes conflicting standards in making their determinations?

Mr. KAMENAR. Well, I think I responded to that in some regard

to the chairman’s question about the various agencies have concurrent jurisdiction, whether it is the Department of Agriculture and

their swampbuster program, the Forest Service, the Corps or the

EPA. Again, it seems that there is some conflict there, but the

manual that they are supposed to be using and reading from the

same sheet of music is the 1987 Wetland Delineation Manual. I

would think that the next panel would have both of those witnesses

from those agencies there, and maybe they can explain that better.

But there is sometimes a conflicting definition, as well as conflicting definitions with State authorities.

Keep in mind that Pennsylvania State authorities also have wetland protection laws, as do many other States. So even if the Corps

were to go out of business tomorrow, that does not mean our wetlands are going to be lost, because we do have local land use activities. They are of keen interest to State and local communities as

well.

Mrs. CHENOWETH-HAGE. Mr. Kamenar, you indicated that recourse or restitution for this family is very, very limited, unless

they file a takings case in the U.S. Court of Claims, and those

cases, I know, cost millions of dollars. My husband is involved in

one of them. But wouldn’t you say that the city of Morrisville is

somewhat liable for not maintaining their ditch when—isn’t there

an agreement here? I think it is in an exhibit, exhibit No. 40? I

think there is an agreement that says——

[Exhibit 40 follows:]

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Mr. KAMENAR. Again, there may be some avenue for some kind

of contributory negligence, what have you. There is a general principle of nuisance law that if you cause a nuisance to somebody

else’s property, causing it to be flooded or what have you, you can

sue them for the damage to your property. When that nuisance is

being done by the governmental entity that floods your property,

if there is a road next to your property that the Department of

Transportation has built up and, because of that, water runs off on

your property and floods your basement, you may have a takings

case against that, because the water has occupied your land.

So I am not sure exactly—— Ms. POZSGAI-HEATER. We do have a 1962 right-of-way agreement from Morrisville, the township, which gave the prior owners $345

for the promise forever to keep a storm drainage ditch and to construct the pipe to maintain it, and it was never maintained.

Mrs. CHENOWETH-HAGE. Well, that is very interesting.

I see my time is up, but, Mr. Chairman, if I might just ask one

more question?

Mr. BURTON. Go ahead.

Mrs. CHENOWETH-HAGE. I would like to ask Victoria to just sort

of recount for the committee, because we are not trying to retry the

case, but why did you come to my office one more time? Would you

explain the ongoing harassment that has been occurring?

Ms. POZSGAI-KHOURY. Madam Chairman, we needed an answer.

We tried and tried for over a decade to work with the Army Corps

and the EPA to ask for information. They refused to even allow us

the application. They blocked us in every way. They had lawyers

and engineers available to them on their payroll. We were a simple

family, a small business. We couldn’t financially compete in the

courtroom. We showed them the truth; we walked, touring several

site visits. This is a stormwater drainage ditch. We scratched the

insignia off of the wall. We crawled through the pipes. We did everything to show them what was our situation, but they refused to

listen to us, and we had nowhere else to turn. I went to every U.S.

Senator’s office in the early 1990’s, and I asked for help, and I went

to every Congressman’s office that I could bear. It took about 11

consecutive days. I tried to do a commutation plea to President

Bush. We collected 15,000 petitions. People continually call us and

ask us what do they do in their situation, and I have nowhere to

turn but here and to plead with you to help us and to make some

kind of comprehensive private property relief for our family and for

the many families who do not have a sponge and who do not have

a wetland that is truly, truly valuable, but something that has

been misdesignated and delineated in the property owner’s own

blood. This has to be addressed somewhere. We thank you.

Mrs. CHENOWETH-HAGE. Mr. Chairman, I would like to just call

your attention to exhibit No. 1. It is a letter to you in response to

the questions that you asked the Army Corps of Engineers about

the contacts that they have had with the Pozsgai family since Mr.

Pozsgai was released from prison. And the Corps did indicate here

on page 2 that over the last 6 years, they have had 38 contacts

with the Pozsgais. So it just goes on and on and on. And that is

the reason why I asked you to hold this hearing.

[Exhibit 1 follows:]

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Mr. BURTON. We will talk to the Corps of Engineers and the EPA

in just a few minutes about that.

Mr. Sanford.

Mr. SANFORD. Thank you, Mr. Chairman.

I guess my first question would be to Ms. Andria. If I heard your

testimony right, fundamentally what I heard was, when we looked

at that map that showed the blue and the red lines, was it fundamentally what you are arguing in the bottomland issue is that

there are basically pieces of land that should not be basically developed, for lack of a—if I was to catch it all, that would be basically

what you are saying, right?

Ms. ANDRIA. That is correct.

Mr. SANFORD. My question is this, though: The nature of this debate is how do we do something about it? One way is regulatory;

in other words, let’s regulate wetlands so that we prevent that from

happening, and there is a question about the degree to which that

is appropriate. The other is to look at market-based incentives.

What I find interesting is when you look at that gridwork that you

were showing, which I think was east of St. Louis, what is interesting to me is are there water or sewer lines that are laid in that

territory that frankly help a developer to go out and develop the

land?

Ms. ANDRIA. The sewer lines, we have applied—asked for WRDA

to try to assess, have the Corps assess the sewer lines and all of

the problems.

Mr. SANFORD. My question is surely for houses to go in, water

and sewer is laid in, because you don’t turn on the ground to get

water. Do every one of these houses have an individual well?

Ms. ANDRIA. I wish I could say, Congressman, that, yes, indeed,

the houses do not go in until there is adequate sewers to take

them. That is not the case.

Mr. SANFORD. I am not saying adequate. I am saying are there

water and sewer lines out there in any of these neighborhoods?

Ms. ANDRIA. Are there water and sewer lines? Yes.

Mr. SANFORD. If you look at one of the appropriations bills that

we are going through right now, what you would see are special

earmarks, projects within the Federal budget that, frankly, work

toward developing those areas that you don’t think should be developed. In other words, I just use that as an example. If we eliminate

some of the earmarks, probably you wouldn’t see that land being

developed. That would be one way of getting at the problem.

All of these houses have Federal flood insurance, correct? You

are in a Federal floodplain; you have flood insurance?

Ms. ANDRIA. I don’t believe everybody has flood insurance.

Mr. SANFORD. You are right, not everyone. But in most of these

areas there is a Federal subsidy that helps to create the—in other

words, the risk—in other words, lowers the risk so that one can

build a house in these neighborhoods. So I just find it fascinating

that if the Federal Government is against development in these

wetland areas or these bottoms which you are legitimately arguing,

we have Federal policy that works in the opposite direction, either

through appropriation bills that would provide water and sewer

grants for these neighborhoods, or with Federal flood insurance so

that you subsidize the risk of developing in these areas.

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So we have a convoluted, confused policy not only from the

standpoint of wetland policy itself, but, frankly, from the standpoint of one hand doing one thing with the Federal Government

and another hand doing another. So I wanted to make that one

point.

Two, I wanted to refer to, I guess, Mr. Kamenar or Ms. Dudley,

in that as I understand it, this problem is about to grow worse, because as I understand it, the EPA—historically, point source pollution has been handled basically through EPA, and nonpoint source

pollution has been handled at the State government level. As I understand it, EPA is contemplating a decision or maybe unilaterally

acted on a decision wherein forestry or agricultural practices for

the first time would be caught up in this whole tragic level of confusion that the Pozsgai family was in; you would now see that with

farmers. Is that true, or could you elaborate, either one of you?

Mr. KAMENAR. I would like to take a stab at that. I think what

you are referring to are the recent efforts by the EPA to regulate

nonpoint sources of pollution through their——

Mr. SANFORD. Mind you I had an EPA person come in my office.

I said, would you define ‘‘pollutant,’’ and it was dirt. In other

words, it was simply runoff by the side of—let’s say, of a mountain

out West. It was dirt, and they were going to exempt all Federal

policies—all Federal lands, even though the government owned

about 80 percent of the land in the West, and the largest pollutant

was dirt.

Mr. KAMENAR. The sediment that comes down. There is a court

case pending right now in the Ninth Circuit called Pronslino v.

Marcus. It is a challenge to the EPA’s authority to regulate basically nonpoint source on the Garcia River where there is only

nonpoint sources of pollution, namely agriculture, silviculture and

so forth.

There is another court case in the D.C. circuit here that is pending, challenging that whole TMDL program that the EPA is trying

to come up with.

But you are right, there is this problem of the various kinds of

ways that the agencies are trying to control the pollution through

the point source and nonpoint source, and you are quite right that

it is a mixed policy.

Mr. SANFORD. Do you have anything to add? In particular, I

would as well ask if you could elaborate a little bit more on some

of our market-based ideas in solving the dilemma that this family

is in.

Ms. DUDLEY. Yes, you are right. TMDL is the total maximum

daily load rule that the EPA just issued, I think, in May, or maybe

later. It does the same thing that the Corps has done in March

with the nationwide permits, where it takes what are very local decisions, local issues, and requires reporting to a Federal bureaucracy, so that all of these decisions have to be made at the Federal

level. I think that not only are market incentives going to be more

effective, as we have seen with wetlands, but also State and local

controls are going to be more effective due to the very nature of

local decisions.

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Mr. SANFORD. Could you elaborate just a little bit further,

though? In your testimony you referred to some market-based

ideas. Give me an example of those.

Ms. DUDLEY. The Department of Agriculture and the Fish and

Wildlife Service both offer incentive payments to landowners who

protect their wetlands. I mentioned briefly that there may be an

imbalance between the social value of the wetland and the private

value. So when a landowner examines his own tradeoffs, it may

make sense to fill a wetland that actually has social values, like

Ms. Andria talked about. But the solution to that does not seem

to be regulating at the Federal level, because we have seen, both

from what Ms. Andria has talked about and what the Pozsgais are

talking about, it is just not working. So you have a situation where

large developers, who have big resources and can offer mitigation

or do other things, are able to develop wetlands, whereas people

like the Pozsgais can’t.

Mr. SANFORD. Speaking of which, could somebody elaborate on

the difference between what Ms. Andria, I think, is very legitimately raising, which is do you want to build a house in an entire

floodplain, versus the isolated wetlands perhaps that you will see

in coastal South Carolina wherein literally every 50 feet there will

be a different little inundation, and it is defined as a wetland in

the same way the Congaree River Basin is defined as a wetland.

I think the two are very, very different. Could either of you comment on that?

Ms. DUDLEY. I will be very brief. I think it goes back to what you

said in your opening statement, that one size does not fit all, and

wetlands really range from what our vision of a wetland is to something like the Pozsgais’ tire pile. That is why I think that the onesize standard isn’t working.

Mr. KAMENAR. Just to reiterate that point, the definition of ‘‘wetland’’ that the Corps has, it doesn’t matter what the functions or

values are of that wetland in order for it to be categorized as such.

That kind of a wetland is regulated the same way, with the same

kind of muscle from the Corps, regardless of the value. Now, it may

come into play when they are trying to do mitigation, etc., but

clearly this piece of property that the Pozsgais had had very low

ecological value; there is no wildlife habitat and things of that nature. They claim there was some stormwater damage, as if it were

some kind of a sponge; but you can always mitigate that by putting

a retention pond on your property, which I think is something that

the Corps did not let Mr. Pozsgai consider.

Mr. SANFORD. I see my time is up, Mr. Chairman.

Mr. BURTON. If Members would like to ask further questions of

this panel, we have extended the time for the hearing, so we will

be glad to do that.

If you want to go ahead right now, or we can come back to you

after we recognize Mrs. Biggert.

Mrs. Biggert, you are recognized.

Mrs. BIGGERT. Thank you, Mr. Chairman.

Ms. Dudley, does current law—you were talking about the incentives—does current law prevent or prohibit a landowner from going

into or enrolling his or her land in an incentive program if he or

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she have been previously said to have violated the wetland laws

and regulations?

Ms. DUDLEY. I don’t know the answer to that. Do you?

Mr. KAMENAR. No, I don’t.

Ms. DUDLEY. I am sorry.

Mrs. BIGGERT. OK. Then to Mr. Kamenar, are either of you—do

you know how many land—property owners have been affected

each year by the Federal wetlands policy regulations? We keep

talking about all of these stories and things, but—— Mr. KAMENAR. I don’t have the figures here, but I do know that

the Corps, I think—in their testimony I thought I saw this morning

they have a list of the number of thousands of permits that have

been applied for and granted, and there are both general permits

and individual permits, and this is all being changed with these

new nationwide permits and so forth. So there are quite a few, and

it is just going to get worse, because the Nationwide Permit 26 that

Mr. Pozsgai had on his property, which allowed him to fill up to

10 acres, has now been abolished. Now it is really down to a half

acre of land, and if you are going to impact one-tenth of an acre

of your property, like putting in a swingset or something in your

backyard, you have to give prenotification to the Corps of Engineers.

So I can only see this problem getting worse and a lot more costly and a lot more Pozsgai cases coming down the pike.

Mrs. BIGGERT. Do you think that the Corps of Engineers should

perform a cost assessment evaluation to determine how proposed

regulation, wetland regulation, would affect private owners?

Mr. KAMENAR. That has got to be the best suggestion that I have

ever heard. That is absolutely crucial because what the Corps does

now, this is a freebie, off-the-books regulation of private property.

I would think that one thing that would be very beneficial is that

the Corps would have to estimate what is the value of the property,

the market value, that we are taking from this property owner,

where we say you can’t develop your property; because that in itself

will reveal who is bearing the cost for this sponge. Why should the

private property owner bear the cost of this sponge that’s supposedly benefiting the whole community? For the Corps and the

EPA, there is not a penny out of their budget.

Although the Congress has appropriated money to the government agencies to purchase wetlands, they are doing it through the

back door, on the cheap, by not having any cost factor apply to

them. To them, it doesn’t matter whether this is a low-value wetland or a high-value rare calcareous fen or bog. To them, they are

equivalent because there is no cost. If you make them start paying

out of their budgets and itemizing it, then you will start seeing priorities being established here.

Ms. DUDLEY. Very briefly, the Corps did do an analysis of the

cost of their nationwide permit provisions, and I think that that

was a very useful thing to do, and it actually led them to reduce

the burdens of that rule. They did not look at the benefits, which

I think is the one missing piece. They need to look at the benefits

as well as the costs.

Mr. KAMENAR. The administrative costs or the cost of the property?

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Ms. DUDLEY. Not the cost of the property.

Mrs. BIGGERT. Do you have a further comment?

Mr. KAMENAR. I would say that those costs are the administrative costs, both direct and indirect cost. What is not really being

factored in here is the loss to the value of the person’s property,

the market value of their property by all of this.

Mrs. BIGGERT. So that would actually specify what that market

value was before?

Mr. KAMENAR. That’s correct. I believe there was some legislation

a few Congresses back where there was going to be at least a requirement that the Corps come up with a number, and that if it

came to more than 50 percent of the value of the property, just

compensation would be due, rather than having to spend 8 to 10

years in the court of claims trying to figure out, you know, how

much of your property has been taken. It is too costly to litigate

so it is never done. There needs to be something that is done in

a more fair manner to the property owner.

Mrs. BIGGERT. One last question. You had also talked about some

of the unwarranted criminal enforcement actions taken in the wetland cases. Do you think that the government has too much discretion in this area?

Mr. KAMENAR. I think they certainly do. Keep in mind that

under the Clean Water Act, the government can use three kinds of

enforcement powers. They can use administrative penalties before

an administrative law judge and get class 1, class 2 penalties. They

can file a civil lawsuit in Federal court; and finally, for the worstcase scenario, they would have the option to use criminal penalties.

I have seen in my practice that it is totally arbitrary which one

of those three the Corps, the EPA and the Department of Justice

will use. You can see cases where there is an administrative penalty, a $10,000 fine, where valuable wetlands were intentionally

filled, and you see cases like Mr. Pozsgai and Ocie Mills, where

they—especially in Ocie Mills’ case where they went straight to

criminal penalties. They didn’t even begin civil penalties, at least

as they tried to start in Mr. Pozsgai’s case.

So there is entirely too much discretion there. There needs to be

some uniform policy on how the Justice Department and EPA and

the Corps use those various three levels of options.

Mrs. BIGGERT. Then the appeals process, too?

Mr. KAMENAR. The appeals process, that is just a recently enacted provision that allows the property owner to challenge administratively the delineation of your property.

Heretofore, the court would not allow you to take the Corps of

Engineers to court to challenge their delineation. You had to actually violate the law, risk the government picking one of those three

choices against you, and then defending yourself in court, saying

this is not a wetland, or the Corps doesn’t have commerce jurisdiction—commerce clause jurisdiction on my property. So it was only

until a few months ago that that procedure has been put in place.

It is too early to tell whether that’s been effective yet.

Mrs. BIGGERT. Thank you.

Thank you, Mr. Chairman.

Mr. BURTON. Let me just ask a question regarding the legal expenses that the Pozsgais had to go through. Do you think if there

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had been some kind of an ombudsman at the EPA and the Corps

of Engineers, where people like them that have legitimate complaints and legitimate questions, if they could go to an ombudsman

rather than have to go out and hire a lawyer on their own, do you

think that might be one possible solution to streamlining this procedure and maybe eliminating these kinds of problems?

Mr. KAMENAR. I think that’s a very good suggestion. Our foundation, of course, offered our services pro bono to the Pozsgais at the

appellate level.

Mr. BURTON. I know, but they went to the primary with an attorney.

Mr. KAMENAR. That’s right. They had to hire local attorneys,

local engineers and so forth. That’s a very expensive process for

property owners that own just a small parcel of land, and I think

that the Corps could have some kind of an ombudsman or some

kind of a mediator that should be able to deal with these small

property owners who just have one parcel. They don’t have the

funds to hire high-priced attorneys, like developers do, and consultants, who can pass that cost on into the development itself. Here

they have to eat whatever costs that they incur.

Mr. BURTON. I understand. If there was an ombudsman, they

could explain the legal ramifications of the problem as they came

up, rather than—— Mr. KAMENAR. Sure.

Mr. BURTON [continuing]. End up with a tragedy like Mr.

Pozsgai’s family went into.

I am going to yield the rest of my time to Mrs. Chenoweth.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Chairman.

Victoria, I wanted to ask you about your father’s arrest. I know

that’s a very difficult time to recall, but in my opening statement

I got sort of carried away and talked about the fact that I do remember, I believe, your telling me that the family didn’t have any

weapons in their home, but that’s sort of like hearsay.

So I wonder if you could attest to that?

Mr. BURTON. Would the gentlelady yield real quickly?

Mrs. CHENOWETH-HAGE. Yes.

Mr. BURTON. Did the law enforcement agencies that came into

your house have a search warrant?

Ms. POZSGAI-KHOURY. No, they did not.

Mr. BURTON. Was your father—on what basis did they come in

and search your house?

Ms. POZSGAI-KHOURY. During the arraignment, they specified as

part of his release that I had to give them a $1,000 check for bail

and to allow my father’s property, our home and our vehicles, to

be searched for unspecified firearms.

Mr. BURTON. OK. Well, I would like to have more information on

that because if there was unlawful entry into your home without

a proper search warrant, you may have recourse through the courts

for restitution for invasion of your privacy. Even if you—I don’t

know what State—what State?

Ms. POZSGAI-KHOURY. Pennsylvania.

Mr. BURTON. I think in Pennsylvania you have the right to have

a firearm in your home, and unless there is some reason to believe

that a felony has been committed, and they don’t have a search

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warrant, they cannot enter your premises without a search warrant. So you might talk to your legal representatives to find out if

they entered illegally, that you may have some recourse in the

courts for—in some kind of civil action.

Ms. POZSGAI-KHOURY. Thank you.

Mr. BURTON. I thank the gentlelady.

Mrs. CHENOWETH-HAGE. Victoria, I would like for you to look at

exhibit No. 49. I wonder if we can pull it up. On page 5, I think

that—Chris, if you could point to the section in the guidelines that

clearly state that any searches that occur should happen at the

time of arrest—did this search occur at the time of arrest or did

they make a search?

[Exhibit 49 follows:]

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Ms. POZSGAI-KHOURY. They came after they arrested my father.

We didn’t even know who had arrested my father. A group of

agents had come into our place of business and basically shanghaied him and took him off to the Philadelphia courthouse. He was

never permitted to wash his hands, tell his wife, call us or make

any type of call.

Basically, my mother had an employee come running in the

house and said someone had grabbed your father. I called the local

police, the State police. I asked them if they had known. No one

knew. But we had this civil court case pending in Philadelphia, so

I had called them and they had basically told me that the Army

Corps had turned over our case to the EPA and that now my father

was being criminally sued.

So I managed to get there during the arraignment, in which they

informed me my—I informed them I had yet to find a civil attorney, and they basically informed me that I didn’t need one, just

bring a blank check.

I did that. We went to the arraignment. They insisted that we

allow them to search our home. We testified under oath—again we

told them anyway, we knew that we did not own firearms, or that

we would turn them over as they requested. They basically forced

us to agree to the search.

I had brought my dad home, and the EPA agents subsequently

searched our home. They went through everything, all of our paperwork, our drawers, in search of weapons, and left when they

didn’t find any.

Mrs. CHENOWETH-HAGE. I would like to also call the committee’s

attention to exhibit No. 28 and then exhibit No. 29.

[Exhibits 28 and 29 follow:]

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Mr. BURTON. I will now yield to the gentlelady for her time.

Mrs. CHENOWETH-HAGE. Thank you. This is what they call a bail

status sheet dated September 12, 1988. Is this the day that—can

you remember, is this the day that you went to the Eastern District Court of Pennsylvania to try to get your father released on

bail? Is this the date, September 12, 1988, do you remember?

Ms. POZSGAI-KHOURY. As far as I know, yes.

Mrs. CHENOWETH-HAGE. Would you look at the last two lines of

the handprinted document? It looks there to me like the bail is contingent upon surrender of firearms, and allows U.S. Marshals or

EPA to search the defendant’s residence and garage for weapons.

Now, on September 13, there is a signed consent to search which

says at the end of the first paragraph, I allow them to search for

any and all weapons in compliance with bail requirements set by

Judge William Hall on September 12, 1988.

Had you been advised ahead of time that anyone, the judge—was

this an administrative judge?

Ms. POZSGAI-KHOURY. I am not sure, but the key is that this was

not voluntary. They said if I—the release was contingent upon us

agreeing to them—allowing to this search; I wouldn’t be able to

take my father home, and that was about 5 p.m. on a Friday. They

would have held him all weekend until I agreed to allow them to

search.

Mrs. CHENOWETH-HAGE. Mr. Chairman, this seems extraordinarily out of order with regards to the agency’s own guidelines

that the committee was presented with. Without objection, I would

like to enter these exhibits into the record.

I would like to ask Gloria—I would like to have us turn to exhibit No. 64, the picture. It is a picture of a hole with some type

of tube in it.

[Exhibit 64 follows:]

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Ms. POZSGAI-HEATER. Exhibit No. 64 is the drainage—the sewer

sanitary line that was placed in there back in 1934 by Morrisville

Burrough. It is over 40 years old, and as a result of the excavation

and the restoration of the Army Corps, we had mentioned the possibility of this old pipe caving in on another property across the

street, and it eventually caved in.

Mrs. CHENOWETH-HAGE. Let me interrupt you, and let’s also go

to exhibit No. 65. I think it shows the tube in a little more detail.

[Exhibit 65 follows:]

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Ms. POZSGAI-HEATER. This is the storm sewer line, and that directly empties into the ditch on the property that they claimed was

wetland.

Mrs. CHENOWETH-HAGE. So this is how the EPA and the Army

Corps bootstrapped their jurisdiction into your property?

Ms. POZSGAI-HEATER. Right.

Mrs. CHENOWETH-HAGE. The dump that you acquired?

Ms. POZSGAI-HEATER. Yes.

Mrs. CHENOWETH-HAGE. They claimed this was a navigable

stream?

Ms. POZSGAI-HEATER. Yes.

Mrs. CHENOWETH-HAGE. Was your father ever held in

contempt—— Ms. POZSGAI-HEATER. Yes.

Mrs. CHENOWETH-HAGE [continuing]. In the court during the

hearing?

Ms. POZSGAI-HEATER. Yes, at one point.

Mrs. CHENOWETH-HAGE. I wonder if we can show these pictures,

and I will pass the other pictures around.

Now, I do want to say, wasn’t your attorney disbarred?

Ms. POZSGAI-HEATER. He was not disbarred. He was reprimanded, and he was almost disbarred for drunken and disorderly

conduct within a court presentation; not my present lawyer.

Mr. KAMENAR. Thank you.

Mrs. CHENOWETH-HAGE. Sorry about that.

Now, I understand that the judge said, in trying to prove that

that was John Pozsgai on his property in that piece of equipment,

that the judge said, ‘‘We know that’s you in the video; we have the

technology to blow it up and identify you.’’ Mr. Chairman, I would like to pass to you copies of these pictures of the video.

Now, since then, the video has been destroyed by the Department of Justice?

Ms. POZSGAI-HEATER. I defer that to my sister.

Mrs. CHENOWETH-HAGE. But to that allegation, isn’t it true that

when the judge said, ‘‘We know that’s you in the video, we have

the technology to blow it up and identify you,’’ then your father responded, ‘‘I would like to see you do that’’; isn’t that correct?

Ms. POZSGAI-KHOURY. Yes, he did.

Mrs. CHENOWETH-HAGE. I would have said the same thing. And

that, at that point, the judge held your father in contempt?

Ms. POZSGAI-KHOURY. Yes, he did.

Mrs. CHENOWETH-HAGE. Unfortunately, as I said earlier, the Department of Justice has somehow lost or displaced or destroyed the

video. That’s just another chapter in this dark book involving John

Pozsgai.

I yield back the balance of my time.

Mr. BURTON. Mr. Sanford.

Mr. SANFORD. Yes, sir. Are any of you all familiar with a land

planner by the name of, Andres Duany? It is currently talked

about. It is called ‘‘smart growth.’’ In fact, it is one of the things

that Vice President Gore is talking about in his Presidential race

and that is the issue of, ‘‘smart growth.’’ It is really premised on

what Andres Duany talked about, and that is the idea, if you look

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at the old cities of the East Coast, if you look at Charleston, SC,

if you look at Savannah, GA, if you look at Philadelphia or Boston,

what you see there is a very tight grid of town streets very close

to each other; not what you would see as the modern, ‘‘sprawl

model,’’ where you see roads and sewer lines laid out across the

countryside and a house here and a house there.

Now, what Andres Duany talks about is if you build that way,

you really destroy a lot less in the way of the environment because

you are not building across a wide geographic area. And what I

would like to suggest is, our current wetlands policy prevents that

very kind of growth because rather than being able to build on a

tight—in other words, the towns of Charleston, or Savannah, GA,

could never be built today because you would have to skip a spot,

go across, lay sewer line, lay water line, lay more pavement, all of

which causes more environmental degradation, to be able—in other

words, to build now versus the filling of different small wetlands

and building a compact city.

So I would like to, one, lay out the premise—for those of you not

familiar with it, it is worth looking at—Andres Duany’s work. It is

fascinating work. It is called Neotraditional Town Planning. It is

based on the idea of building on old, and it causes a lot less in the

way of use of resources and use of land; but our current environmental policy, our current wetland policy, prevents that kind of development.

Two, I would like to—I guess, Mr. Kamenar, you talked about

the commerce clause—well, before I get to that, let me lay out another important thing, though. When you talk about wetlands, I

am not talking about Charleston destroying the Congeree River

Basin. What I am talking about is a very—in other words, when

we say wetland, I think we get confused about what wetland is.

I want to ask you, Mr. Kamenar, if you can look out and see no

water on a piece of land, could it still be a wetland?

Mr. KAMENAR. Absolutely. In fact——

Mr. SANFORD. OK. Let me carry it a little further. If you can ride

a bicycle across a piece of land, could it still be a wetland?

Mr. KAMENAR. Yes.

Mr. SANDERS. If you could get out—would you have to wear boots

or waders if you were going to cross a, ‘‘wetland,’’ or tennis shoes

or go barefoot for that matter?

Mr. KAMENAR. Go barefoot, right.

Mr. SANFORD. OK. Could you run like a 35-ton tractor across the

top of a wetland?

Mr. KAMENAR. Sure.

Mr. SANFORD. Could you run a 50-ton caterpillar D–8 across the

top of a wetland?

Mr. KAMENAR. Absolutely.

Mr. SANDERS. I mean, if it was a wetland, I would think that a

50-ton machine would sink.

Mr. KAMENAR. You would think so.

Mr. SANFORD. In other words, that is precisely the problem we

have in current environmental law. There is a—I mean, people

think wetland and they think about Congeree River Basin; and yet

the way that Charleston developed or Savannah developed 200 and

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150 years ago, with little pockets, are very, very different than

what I think a lot of people think in their minds as a wetland.

Toward that end, I think in your testimony you talked about the

commerce clause. I had seen some strange interpretation of the

commerce clause, such that the only way in which the EPA or

other organizations use the commerce clause is by suggesting that

ducks fly across State lines and therefore it makes it jurisdictional

to the commerce clause. Could you elaborate on that just a little?

Mr. KAMENAR. Yes. That is exactly the case that is before the Supreme Court that is going to be argued on October 31st. The case

is the Solid Waste Agency of Northern Cook County versus the

Corps of Engineers, and the only assertion of jurisdiction over that

wetland is that a migratory bird flies and lands on your property.

We call it the ‘‘glancing duck’’ theory of interstate commerce.

Mr. SANDERS. Although in many of the wetlands I am describing,

no duck could land; is that not correct?

Mr. KAMENAR. That’s true. So, you know, the question is whether

that is sufficient power for the Federal Government to regulate it,

and the Supreme Court will finally get involved in that and it will

have a big impact on not only wetland jurisdiction but also Endangered Species Act jurisdiction and so forth and so on. So it is a very

important case.

The other part of the argument in the case is whether or not,

even under the definition, the Corps’ definition of wetlands, assuming they had commerce clause jurisdiction, is this a wetland under

their own regulation?

Again, I go back to Riverside Bayview Homes where the Supreme

Court said you can regulate: here is the open water; there is a continuum, and then you have the dry land. Where in this continuum

is the wetland? The Supreme Court said, we will give that tie to

the Corps of Engineers; we will give them the expertise.

They were only talking about wetlands adjacent to these open

body of waters. What the Corps of Engineers did was take that decision and ran with it by going way inland where there is no adjacency at all. They start making up these hydrological connectiontype of theories of jurisdiction to be sure they can get lower court

decisions to buy into their power grab there. But I think the Supreme Court will also address that statutory definition issue as

well.

Mr. BURTON. Mr. Sanford, if you like, we are going to have the

Corps of Engineers and the EPA up here when we come back, we

would love to have you come back because I know you probably

have questions for them.

Mrs. Biggert, we have about 8 minutes.

Mrs. BIGGERT. I have just two short questions for Mr. Pozsgai’s

daughters.

Some have said that your father knew that the property was a

wetland before he bought it. Before he bought it. Is that true?

Ms. POZSGAI-KHOURY. No.

Mrs. BIGGERT. That is not true.

Do you think that your property is a wetland?

Ms. POZSGAI-KHOURY. Absolutely not. No.

Ms. POZSGAI-HEATER. No.

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Mrs. BIGGERT. Do you have any scientific findings that prove

that your property is not a wetland?

Ms. POZSGAI-HEATER. Yes.

Mrs. BIGGERT. Could you state those?

Ms. POZSGAI-KHOURY. If I could just have a moment.

Dr. Kirkham’s report. This was a soil scientist who we hired.

Mr. BURTON. Hold the microphone up closer to you and turn it

on.

Ms. POZSGAI-KHOURY. It is on.

We had hired a soil scientist, Mr. Wendell Kirkham, and his soil

scientist analysis on our property was that we have never had a

wetlands, or that he could not find any wetlands parameters that

have ever been scientifically proven in any court that existed on

our property; and that’s Exhibit 20.

Mrs. BIGGERT. Exhibit 20?

Ms. POZSGAI-KHOURY. Exhibit 20.

Mrs. BIGGERT. Could we put that in the record?

Mr. BURTON. Yes, we will put that in the record, and if you like

we could recess now and we will come back and conclude with this

panel and then go right to the EPA.

[Exhibit 20 follows:]

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Mrs. BIGGERT. Thank you. That’s all the questions that I have.

Mr. BURTON. We will be back in about 10 minutes. We have another vote. We apologize for that. We will try to wrap up with this

panel as soon as we get back so we can get the EPA and the Corps

of Engineers. We stand in recess.

[Recess.]

Mr. BURTON. The committee will come to order. I talked to the

rest of the panelists, and I don’t believe we have any more questions for this panel, but I hope that maybe you will stay around

and listen to what the people from the Corps of Engineers and the

EPA say. I want to thank you very much for being here.

Mr. Pozsgai, I didn’t get a chance to say hello to you but perhaps

I will get a chance to talk to you before the end of the hearing.

I want to thank you all for your testimony. It was very interesting, very interesting from East St. Louis’ perspective as well. So

thank you very much.

We will now have the next panel come forward. Our second panel

will consist of Mr. Michael Davis and Mr. Robert Wayland. Mr.

Davis is from the Corps of Engineers and Mr. Wayland is from the

EPA.

Before you sit down, if we could, we would like to have you

sworn, please.

Please raise your right hands.

[Witnesses sworn.]

Mr. BURTON. Have a seat. Do either one of you have an opening

statement? If so, you will be recognized, Mr. Davis, Mr. Wayland.

Mr. Davis, you are recognized.

STATEMENTS OF MICHAEL DAVIS, DEPUTY ASSISTANT SECRETARY FOR POLICY AND LEGISLATION, OFFICE OF CIVIL

WORKS, DEPARTMENT OF THE ARMY; AND ROBERT

WAYLAND III, DIRECTOR, OFFICE OF THE WETLANDS,

OCEANS, AND WATERSHEDS, ENVIRONMENTAL PROTECTION

AGENCY

Mr. DAVIS. Mr. Chairman, members of the committee, I am Michael Davis, Deputy Assistant Secretary of the Army for Civil

Works. Thank you for the opportunity to provide information on

the Department of the Army’s regulatory program.

In my detailed statement, I provided an overview of the Clean

Water Act Section 404 regulatory program, including the Corps’ enforcement responsibilities and recent changes made by the administration to improve the program.

I will provide a brief summary of my statement. Specifically, I

will emphasize three key points: that the Army’s regulatory program considers fully private property rights; that both permitting

and enforcement arms of the program are administered in a professional and respectful manner; and that the program is important

if we are to protect the property rights of the public at large.

To say that the protection of wetlands through regulation has engendered considerable controversy in the past 28 years may be one

of the few points of common ground between those who believe that

the Section 404 program is no more than a Federal rubber stamp

allowing the destruction of wetlands and those who suggest that

the program tramples on the rights of private property owners.

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We in the administration, however, believe that this dichotomy

between private property rights and environmental protection does

not reflect the way the program really works. In fact, through the

administration’s initiative, the Section 404 program has been successful in reconciling the interests of all property owners, allowing

reasonable development to proceed while protecting our Nation’s

aquatic resources and reducing the loss of wetlands.

When evaluating how a program affects the public, it is important to understand why the program was established, how it developed and how it has operated over the years. Recent statistics and

information on key administration wetland initiatives show that

the Army’s regulatory program is, on the whole, fair, flexible and

effective, and that property rights are protected.

One of the successful aspects of the Section 404 program is the

ability of the Corps to reconcile the often conflicting objectives of

an individual landowner with the interests of other landowners

that could be adversely affected by the disruption of aquatic areas

and by other development related impacts. Because most applicants are willing to work with the Corps, in over 99 percent of the

cases, permit applicants are allowed to accomplish their objectives

in a manner that protects the interests of other landowners and

the environment.

It is standard procedure for the Corps to consider fully how proposed activities could affect the environment and other people and

their property. For example, the loss of important wetlands may

harm the quality of water in the Chesapeake Bay which in turn

could reduce blue crab and oyster populations, resulting in economic harm to the region.

In addition, we have observed firsthand numerous examples

where the Section 404 program has protected the rights of property

owners. For example, in Georgia, through the Section 404 program,

a developer was required to mitigate for the illegal unauthorized

filling of wetlands that resulted in the flooding of adjacent property

owners.

The homeowners in the affected subdivision expected and, Mr.

Chairman, demanded that the Corps of Engineers and EPA enforce

the Section 404 program.

The statistics accompanying my written statement support our

belief that the Army has been successful in providing necessary environmental protection and allowing landowners to realize their development goals. During fiscal year 1999, over 74,000 landowners

asked the Corps of Engineers for a Section 404 permit. This was

the largest number of Section 404 permitting decisions made during any 1 year since the program’s enactment in 1972. Of those decisions, 90 percent of the authorizations were made through a general permit in an average time of 18 days. Only 5 percent of the

applications were evaluated using the more detailed, timely, standard individual permit evaluation process.

The average process time, though, for these more detailed evaluations was 118 days.

Mr. Chairman, less than 1 percent of those 74,000 permit applications were actually denied. With your permission, I would like to

highlight some of these statistics on a graphic or two, if we could

have the graphic put up.

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This one demonstrates the overall universe of permitting activities that the Corps of Engineers had; this is that 74,000 people who

walk into a Corps of Engineers office somewhere across the country. What this shows in this big purple piece of the pie is that 90

percent of these applicants got their permits under an abbreviated

general permit process in an average time of 18 days.

The next graphic, please.

This is just a slightly different way of looking at some of the

same data, but I call your attention to the last bar, the one on the

far right. If you look at all of these 74,000 individuals who were

subjected to this process in fiscal year 1999, the average time to

get a permit decision was 23 days. The main point of this is that

in the vast majority of cases, the Corps regulatory program authorizes owners of private property to use their land subject to reasonable conditions to protect the rights and property values of others.

Mr. Chairman, you have heard a lot today about one wetlands

enforcement case. It is regretful that the Federal Government was

forced to take such action in a situation that could have been

avoided. It is important to note, however, that this case does not

in any way illustrate how enforcement of wetland laws really

works.

For example, the philosophy underlying the Corps’ enforcement

of its regulatory responsibility is to resolve enforcement actions by

gaining compliance in the least confrontational and burdensome

manner. A decision to bring an enforcement action is based on consideration of three factors: No. 1, the legal requirements; the nature of the violation; and the extent to which the violator was

aware of Clean Water Act requirements.

The basic Corps enforcement practice is to gain compliance with

the least amount of conflict, seeking stronger enforcement measures only when a violation is severe or the violation is willful, flagrant or knowing.

Much has been said and written about a very few highly publicized wetland enforcement cases. You have heard testimony of one

of those today. As noted in the statistics provided in with my testimony, the reality is that less than 2 percent, less than 2 percent,

of all enforcement actions result in any kind of civil or criminal

penalty. After-the-fact permits and voluntary actions resolve the

vast majority of violations by landowners.

Only in extreme cases does the government pursue litigation and

fines. It is significant that there have been fewer than a dozen enforcement cases that have been so highly publicized out of the tens

of thousands of enforcement actions that have occurred since enactment of Section 404 in 1972.

Looking at alleged violations reported to the Corps, 60 percent

resulted in a finding that there was no violation or that a permit

had already been issued. Over 38 percent of the cases turn out to

be violations that are resolved through administrative actions such

as acceptance of a restoration plan or the acceptance of an afterthe-fact permit application.

While we believe that the program works well overall, we recognize that it is not perfect and that we can always make improvements, and we should make improvements. Shortly after coming

into office, the administration convened an interagency working

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group to address concerns with Federal wetlands policy. After hearing from States, tribes, developers, farmers, environmental interests, Members of Congress and scientists, the White House Wetlands Working Group developed a 40-point comprehensive plan to

enhance wetlands protection while making wetlands regulations

more fair, flexible and effective for everyone.

For example, a successful regulatory initiative is an interagency

mitigation banking program. Mitigation banking is a market-based

alternative for landowners to effectively and efficiently compensate

for wetlands impacts.

Mr. BURTON. Excuse me, Mr. Davis. Everything you are saying

is very interesting, but would it be possible for you to summarize

the rest of it so we can get to some questions with you and your

colleague, Mr. Wayland?

Mr. DAVIS. Certainly, Mr. Chairman. I do think these are very

important points. There has been a lot of information.

Mr. BURTON. We will be happy to submit those for the record and

the committee members will read them.

Mr. DAVIS. In conclusion, Mr. Chairman, as indicated by the

facts presented in my statement, we strongly believe that the Corps

implements the Section 404 program in a manner that respects the

rights of the Nation’s property owners. The vast majority of landowners are allowed to use their property and realize their development expectations in a manner that protects important aquatic resources.

An often overlooked aspect of the property rights debate is the

impact on other property owners of filling wetlands. We have observed firsthand where the Section 404 program has protected the

rights of adjacent and downstream property owners from flooding

and other problems. In this regard, we must recognize that fairness

to landowners extends to all landowners, and that individuals do

not have a right to harm their neighbors or the environment.

This administration, like no other before it, has taken the initiative to address the legitimate concerns of all landowners. The right

to own, reasonably use, and enjoy private property is vital to our

Nation’s economic strength and to our constitutional heritage. Our

efforts at regulatory reform have been directed at new practices to

make wetlands regulations more fair, flexible and effective for everyone. We believe that we have been successful in meeting these

objectives.

Mr. Chairman, thank you for the additional time. That concludes

my statement. We would be happy to answer any questions.

Mr. BURTON. Thank you, Mr. Davis.

[The prepared statement of Mr. Davis follows:]

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Mr. BURTON. Mr. Wayland.

Mr. WAYLAND. Good afternoon, Mr. Chairman and members of

the committee. I am Robert Wayland, Director of the Environmental Protection Agency’s Office of Wetlands, Oceans and Watersheds, and I welcome the opportunity to join my colleague, Michael

Davis, in describing the strong commitment of EPA and our executive branch partners to protecting and restoring wetlands with fairness, flexibility and effectiveness.

Since you indicated my entire statement will be included in the

record, I will gladly summarize it for you.

Wetlands are among our Nation’s most critical and productive

natural resources, protecting private property from flooding and

providing shoreline erosion control. They help protect water quality, support commercially valuable fisheries, and provide primary

habitat for wildlife, fish and waterfowl.

Flood-prone areas of the United States cover approximately

15,000 square miles and at least 9.6 million households, and $390

billion in property are at risk. Direct flood damage in the United

States in 1999 has been approximated at $5.4 billion. Because wetlands serve as natural storage areas for flood water, they can help

prevent or reduce the severity of flooding. Wetlands also play an

important role in recharging groundwater used to irrigate crops or

in manufacturing, such as playa lakes, a form of wetlands, in west

Texas and New Mexico, which recharge the Midwest’s Ogalalla aquifer.

Wetlands are important to commercial and recreational fisheries,

a multibillion dollar industry that employs hundreds of thousands

of people and contributes billions in State and Federal taxes. Wetlands also provide important habitat for migratory birds and waterfowl.

A national survey of wildlife-related recreation prepared by the

Bureau of Census and the Fish and Wildlife Service indicated that

overall in 1996, activities associated with hunting, fishing and

wildlife watching amounted to $101 billion.

Since the time of the European settlement, more than half of the

wetlands in the lower 48 States have been lost. Over the past 28

years, since its enactment, the Section 404 program, along with the

Swampbuster provisions of the farm program, ongoing public and

private wetlands restoration programs, and active State, local and

private wetlands protection efforts, have prevented the destruction

of hundreds of thousands of acres of wetlands and the degradation

of thousands of miles of rivers and streams.

The annual rate of wetland loss has been reduced from over

460,000 acres a year during the 1950’s to the 1970’s, to 60,000

acres from 1986 to 1997 annually. This has reduced property damage and loss of lives from flooding, and protected fish and wildlife

habitat and water quality, all vital to our Nation’s economy and

overall health.

Because they are waters of the United States, all of the protections applicable to rivers, lakes and estuaries established in the

Clean Water Act apply to wetlands. Under Section 404, any person

planning to discharge dredged or fill material to wetlands or other

waters of the United States must first obtain authorization from

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the Corps of Engineers, either through issuance of an individual

permit or as authorized under a general permit.

The vast majority of authorizations for discharges take the form

of general permits which usually have fewer procedural requirements, as my colleague mentioned, and are usually accomplished

in a matter of days.

The Federal agencies strive to minimize the imposition of Section

404 program burdens on landowners and other dischargers consistent with our mandate to protect, restore and maintain the physical,

chemical and biological integrity of the Nation’s waters. During fiscal year 1999 the Corps of Engineers regulatory program provided

authorization to over 74,000 activities. Administering the 404 program in a fair, flexible and effective manner is and long has been

a priority of this administration.

In a comprehensive 1993 plan developed by several Federal agencies, we set out a blueprint for actions to be responsive to landowner concerns with the Section 404 program while enhancing the

effectiveness of protecting wetlands and other waters. The plan includes over 40 specific actions and their implementation by EPA,

the Corps and other agencies, have resulted in many improvements

on those we regulate, while the rate of wetland loss has declined.

A few of the highlights include our guidance clarifying the need

for flexibility in processing permit requests and emphasizing that

small projects with minor impacts do not need the same detailed

level of review as large projects. EPA and the Corps amended our

jurisdictional regulations to make clear that prior converted crop

lands are excluded from the Clean Water Act jurisdiction. We entered into a memorandum of agreement with the Corps and the Departments of Agriculture and Interior regarding the delineation of

wetlands on agricultural lands in order to increase certainty for

farmers by providing a single reliable wetland determination.

EPA and the Corps had earlier, in 1991, adopted the use of the

Corps 1987 Manual for Wetland Delineation Purposes. So there is

a single wetland delineation manual for the 404 program.

To reduce regulatory burdens on persons wishing to build a

home, or for their family, the Corps issued nationwide permit 29

for single family homes, impacting less than a quarter acre of nontidal wetlands. EPA, along with four other agencies, issued joint

Federal guidance concerning the establishment of wetland mitigation banks. The Corps published final rules establishing an administrative appeal process for jurisdictional determinations, permit

denials, and declined individual permits.

We continue to emphasize the importance of nonregulatory programs such as advanced watershed planning, voluntary participation in the wetlands reserve program, partners for wildlife program, the five-star restoration program and other public and private cooperative programs to protect and restore wetlands. In addition, we have increased funding to States, tribes and local governments for their wetland programs.

The EPA also provides information and coordinates extensively

with the public to help landowners understand and comply with

the requirements of the Clean Water Act. We provide a toll-free

wetlands information helpline that has assisted tens of thousands

of callers. We offer extensive information on wetland programs,

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policies, and regulations on the World Wide Web. We keep many

active lines of communication with organizations representing

landowner interests.

The Clean Water Act provides the Corps and EPA may bring enforcement actions for violations of Section 404 and may bring criminal violations to the attention of the Department of Justice.

A vital part of effective wetlands protection is the enforcement of

those cases that involve serious harm to the environment and/or

adjacent property owners as a result of unauthorized dredging or

filling or involve flagrant or knowing violations of the law.

Some aspects of the Pozsgai case which were not developed in

previous testimony include the fact that the trial record established

that Mr. Pozsgai was advised by three consulting firms he retained,

prior to his purchase of the property in question, that much or all

of the parcel consisted of protected wetlands. Those were the J.G.

Park Engineering Co., Mr. Ezra Golub and the Majors Engineering

Co. Over 400 truckloads of rock and concrete filling in at least 4

acres of wetland resulted in flooding of the neighbors’ property in

this case.

During the course of the proceedings, Mr. Pozsgai violated a temporary restraining order issued by the court for which the court ordered Mr. Pozsgai in contempt.

In conclusion, Mr. Chairman, in carrying out the Section 404 program, both the Corps and EPA are sensitive to the issue of property rights. Implementation of the 404 program often requires balancing of environmental protection, public interests and individual

interests. We have made much progress but we continue to strive

toward the fair, flexible and effective implementation of the program.

Thank you very much.

[The prepared statement of Mr. Wayland follows:]

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Mr. BURTON. Thank you. I was just informed that the Pozsgais

never hired any of those firms; that the realtor who sold it to them

was concerned about possible litigation against him if he sold a

wetland and so he hired one of those firms, who did a very cursory

look at the wetland—or at the property. He walked around it and

really didn’t do a very thorough investigation.

One of the things that concerns me is, Mr. Davis, I think you

said that it is really impressive, the number of people that you

have helped and the very small percentage of people who have had

problems. That may be true, but we are, by the Constitution, supposed to protect the minority as well as the majority. And if a person who doesn’t speak English well, who is a Hungarian freedom

fighter who came over and here and didn’t understand some of

these problems, is put in that kind of a position, it seems to me

that the Corps of Engineers and the EPA and the Justice Department ought to do everything they can to make sure, before legal

action is taken, that they make sure that that person is apprised

of the problems that they face.

One of the things I asked one of the counsels for the Pozsgais

awhile ago was if they thought it might be a good idea to have an

ombudsman for those cases where there is a problem with EPA or

the Corps of Engineers for these people to be able to go to, especially those who may not understand all of the ramifications that

you are talking about, to talk to them and to be able to explain

their problems before they are hauled off to jail.

What do you think about an ombudsman for that kind of a situation?

Mr. DAVIS. Mr. Chairman, we would certainly consider that, and

we would want to understand exactly what it meant from a legal

perspective, but I think that’s something that we would take— under advisement. In fact, we have a record of doing something, I

think, that’s similar. In some Corps districts, we have what we call

tribal coordinators to help us communicate better with tribes and

understand more fully their issues, and so we do have——

Mr. BURTON. You are talking about Indian tribes?

Mr. DAVIS. Yes, sir, Indian tribes.

Let me just say, though, that I actually started my career in the

Federal Government over 20 years ago as an enforcer in this program, out in the trenches, if you will, and my experience is that

we work very hard to try to avoid any type of criminal or civil action. It is extremely rare.

We work with landowners. We try to address the environmental

problem. That’s fundamentally all we are interested in, is taking

care of the environment.

Mr. BURTON. Sure, I understand. Let me just ask you this: Have

you ever heard of a more severe penalty than Mr. Pozsgai went

through for this kind of a problem?

Mr. DAVIS. Penalties in the program are very rare.

Mr. BURTON. Have you ever heard of a more severe penalty, 3 years in jail, $200,000 in civil penalties, $202,000 in criminal penalties, 18 months in a halfway house? For this kind of a problem,

have you ever seen a more severe penalty?

Mr. DAVIS. I am not aware of one.

Mr. BURTON. How about you, Mr. Wayland?

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Mr. WAYLAND. I am not—Mr. Chairman, I think there may very

well be penalties that have resulted in more lengthy incarcerations,

and there certainly have been many money penalties that greatly

exceed those that were imposed in this case.

Mr. BURTON. For a man who was a truck mechanic, who just had

a small house, who bought 14 acres across the street from him? I

mean, shouldn’t the penalty fit the crime if there is a crime?

Mr. WAYLAND. It is my understanding that the money penalty

was significantly reduced as a result of—— Mr. BURTON. I know, but that’s not the point. The point is that it was initially levied at over $200,000.

Mr. WAYLAND. And that the—and that the period of incarceration was significantly affected by mandatory sentencing guidelines.

Mr. BURTON. It went from 3 years to 18 months. Well, let’s just

say the 18 months. Don’t you think that’s a little severe for that?

Mr. WAYLAND. It is certainly very unusual for a penalty of that

magnitude to be imposed. However, I think that the contributing

circumstances were the continued violations after a restraining

order had been issued by a court.

Mr. BURTON. One of the reasons, Mr. Wayland and Mr. Davis,

that I think that there needs to be some kind of an ombudsman

for these people to go to is Mr. Pozsgai, a Hungarian freedom fighter who still doesn’t speak English all that well, was not—he

thought when you talked about mitigating funds, he thought that

was a bribe and he went to the FBI, I understand, to report that

they were trying to—he was trying to be coerced into doing something, because that’s what he had to live with in a Communist

country where he fought the Russians in the streets of Budapest.

It seems to me before you start throwing somebody like that in

the slammer, if he thought he was being—they were trying to

blackmail him, it seems like somebody would have sat down and

said, hey, hold it, we aren’t trying to blackmail you; we are talking

about using some funds to go straighten out the mess that’s been

created.

But it just went on and on and on, and even though this is a very

rare situation—I don’t know if it is or not. I am sure we are going

to have other cases because I intend to have more hearings about

this because I believe this thing needs to be streamlined and corrected. I mean, I understand what you are saying, that things are

a lot better than they were, but it seems to me that there is more

improvement that can be made.

And so it just seems like to me—just 1 second. It just seems like

to me that when you have somebody who is not conversant with

the English language like they should be, and we have a lot of

those, a growing number, especially Hispanics that are coming into

the country, it seems to me that there should be extra care taken

to make sure they understand their rights under the law and the

penalties that they might face if they don’t concur. And I don’t believe in the case of Mr. Pozsgai that he understood that.

With that—I don’t have any more questions, but if you want to

make a quick comment.

Mr. WAYLAND. I just wanted to respond to the suggestion about

an ombudsman being a useful position to help people understand

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what the legal and regulatory requirements are, because EPA has

established a small business ombudsman. I believe that position

has been established for some years now.

Now, it may be that in 1988, when these violations occurred, that

position had not been established. I am not sure. I will have to look

at when we established that, but we do have a small business ombudsman.

Mr. BURTON. OK. Let me just followup on that. If a person of foreign descent like Mr. Pozsgai has a problem, are they informed

that there is an ombudsman they can go to now or is this something they are just supposed to figure out for themselves? Because

I think if there is a legal question or a problem, in addition to other

things that they are informed about, they ought to be informed

that there is a place they can go without hiring private counsel

that’s going to cost them an arm and a leg, within the governmental process, so they can sit down and understand the ramifications of the problems that they face instead of having to face incarceration and all of these other things.

Did you have any comments?

Mr. KUCINICH. Yes, Mr. Chairman. I have some questions.

I want to welcome the witnesses and thank you for serving our

country in your respective capacities.

Some questions for Mr. Davis. During the first panel, we heard

concerns that applicants don’t have the resources to go up against

the Corps when they disagree with Corps decisions. However, my

understanding is that citizens who are negatively impacted by a

Corps decision to grant an application have no recourse at all.

Now, isn’t it true that the applicant can appeal a decision to

deny a permit, but neighbors who might be flooded because of the

loss of wetlands have no right to appeal the Corps decision to grant

an application?

Mr. DAVIS. Congressman, it is true. We were very concerned, as

we put together the President’s wetlands plan, that landowners

who had permits denied or jurisdictional determinations that they

disagreed with had no recourse short of going to Federal court,

which we know is time-consuming and very expensive. So we have

established an administrative appeals process for individuals who

have permits denied, individuals who have permit conditions imposed that they disagree with, and individuals who disagree with

jurisdictional wetlands determinations.

It is true that this appeals process does not extend to third parties who would challenge the issuance of a permit. We debated that

and concluded that we couldn’t do that at this time.

Third parties are allowed to participate in the appeal process,

however. If a permit is denied and the applicant appeals that, third

parties can participate in that process.

Mr. KUCINICH. Thank you. Now, either panelist. Ms. Andria testified about the manner in which some developers have beat the

system. Some applied for permits in a piecemeal fashion. Others

mischaracterized their needs. Yet these developers continue to obtain permits from the Corps and successfully develop their sites.

Would you comment on this?

Mr. DAVIS. I am not familiar with the particular case that Ms.

Andria mentioned. We will certainly look——

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Mr. KUCINICH. Just generally, just generally what about this

idea of developers obtaining permits, developing their sites even

though they mischaracterize their needs?

Mr. DAVIS. We don’t see that as a systemic problem throughout

the program. We think most developers and applicants are honest

with us and they correctly provide the information that we need to

do a good evaluation.

Mr. KUCINICH. Mr. Wayland.

Mr. WAYLAND. I think as a general matter we do, through the

404(b)(1) guidelines that EPA has developed in consultation with

the Corps, call for applications that address full and complete

projects. It is the case that sometimes someone will expand their

business and then at a later stage, when circumstances change, undertake different or additional activities and we can’t completely

rule that out, but I believe the Corps routinely considers what the

prior permit history has been on a particular parcel when examining new permits.

Mr. KUCINICH. OK. A followup now. Do either of you believe that

private property rights of landowners where negatively affected by

development should be considered when developing and implementing wetlands policy?

Mr. DAVIS. Yes, we absolutely do, and we think the property

rights debate is, in fact, about everybody’s property rights.

Mr. KUCINICH. Mr. Wayland.

Mr. WAYLAND. I concur.

Mr. KUCINICH. Do you believe there is room for improvement in

this area?

Mr. DAVIS. Yes, I think so.

Mr. WAYLAND. We continually strive to improve the program. We

are continuing to supplement the actions that were taken at the

time of the 1993 wetlands plan with additional efforts to improve

our programs, and I think we are enjoying considerable success in

doing that.

Mr. KUCINICH. Now earlier, I mentioned Ohio’s no-net-loss policy

which resulted in an 18 percent loss of wetlands between 1990 and

1995. What has been done since 1995 and what do you propose to

do in the future to ensure that a no-net-loss policy is implemented

successfully?

Mr. DAVIS. We continue to make improvements in this program

both from the perspective of protecting the resources and protecting

the landowner, the applicants, who have had to apply for permits.

I think we have done a fair amount since 1995. One of the most

important things that we have done is modify our nationwide general permit program to tighten up, if you will, those things that are

allowed to occur under the general permit program.

Mr. KUCINICH. Now the study also found that the Ohio wetland

program seemed to be biased toward deepwater wetlands that

house game species like ducks and fish, while shallow water wetlands were being destroyed. Do you believe that both types of wetlands are important, and what policies are in place to prevent any

kind of a bias?

Mr. DAVIS. Our policy is to replicate, to the best we can, the functions that are lost, and we ought to be first looking toward what

we call in-kind mitigation. If we have a marsh, we ought to create

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or restore a marsh for each wetland type. That’s our first choice.

Sometimes there are exceptions where it is actually better for the

environment to deviate from that policy.

Mr. KUCINICH. Well, I also discussed a study—if I may, Madam

Chair, ask one more question. I also discussed a study where the

EPA found that the wetlands that had been created as part of a

developer’s attempt to mitigate impacts are not as useful as the

wetlands they replaced. Would you care to, either of you, comment

on that, Mr. Wayland?

Mr. WAYLAND. Mr. Kucinich, I think one of the Achilles’ heels of

the regulatory program has been the lack of success in wetland

mitigation. The National Academy of Sciences now has underway

a study to look at mitigation policies and practices, to look in particular at mitigation banking which has been the source of some

controversy. But I think that the mitigation banking policy of the

agencies and the significant increase in this market-based approach to wetland restoration has, in fact—and I don’t want to prejudge the National Academy’s work—but I think there are some

good indications to date that mitigation banking, because professionals undertake it, rather than people who may be trying to deal

with a single project, enjoys a much greater rate of success in replicating the functions and values of wetlands that have been lost

through permitting.

Mr. KUCINICH. Thank you, Mr. Wayland.

Thank you, Madam Chair. I appreciate it.

Mrs. CHENOWETH-HAGE [presiding]. Mr. Sanford, you are recognized.

Mr. SANFORD. I thank the chairwoman. I guess my first question

would be to you, Mr. Davis. You may have heard my comments

earlier on impoundments on the coast of South Carolina. Would

you consider them to be wetlands or nonwetlands?

Mr. DAVIS. Congressman, you have asked a very fact-specific

question. I think there is—it could be either one, depending on the

actual facts of that particular case. If you have an issue, we can

certainly look into it and get back to you for the record and get

back to you individually.

Mr. SANFORD. Let’s think about what you just said. It could be

either one. I mean, that fundamentally is what this hearing is all

about. In other words, in a lot of different circumstances the same

situation can be looked upon by one regulator and viewed one way,

and by another regulator and viewed the other way.

Mr. DAVIS. Congressman, that’s not what I said. That’s not what

I said. What I said was——

Mr. SANDERS. Well, you said either one; it could be either one.

Mr. DAVIS. Well, what I—I do not have the facts before me, the

data that I would need, to make that determination. I believe——

Mr. SANDERS. Well, the facts would change based on what the

landowner chose to do with his trunk. The trunk controls the water

flow in or out of an impoundment. He could flood it with saltwater.

He could drain it and keep it with a one-way flap forever dry and

literally grow pine trees in there. He could flood it with saltwater,

fresh water. In other words, you could—because it is a man-made

environment, it could be any of the above, but oddly enough these

things are regulated as wetlands by the Corps currently.

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I think that that is a very weird position for the Corps to be in

because it is all based on a use that could literally change from

week to week.

Second, I guess I would say I guess to Mr. Wayland—it is a

pleasure to see you again—first of all I would say you didn’t really

answer the chairman’s question. When he asked in this particular

situation did you know of a bigger penalty, you said you thought

there certainly were, but——

Mr. WAYLAND. There are larger money penalties under the Clean

Water Act, substantially larger.

Mr. SANDERS. I understand. In other words, you could have

Valdez with Exxon, but I am saying in a private landowner case

who would be bigger?

Mr. WAYLAND. The number of wetland criminal actions is a very

small number, spanning many, many years.

Mr. SANDERS. I am just asking you——

Mr. WAYLAND. You are testing my recollection beyond its limits

to ask me about things that have happened in the history of the

program.

Mr. SANDERS. His question was did you know of a bigger case.

That’s all I am asking.

Mr. WAYLAND. No.

Mr. SANFORD. OK. Second, I think what you said in your testimony unfortunately was not true, in that if you look on page 5 of

your testimony it says, Overview of Clean Water Act, Section 404,

‘‘Because they are waters of the United States,’’ you begin your

phrase with, ‘‘all the protections applicable to rivers, lakes and estuaries established,’’ and so on. Could you show me the water on

some of these wetlands that you referred to in this paragraph?

Mr. WAYLAND. All wetlands have to be saturated or inundated

for a period of time sufficient to allow the growth of a preponderance of wetland vegetation, and there needs to be the presence of

hydric soil. So it is a time——

Mr. SANFORD. No, no, that’s not true. It could be hydric soils

solely.

Mr. WAYLAND. It is a three-part test in our regulations for the

presence of a wetland.

Mr. SANFORD. One of which could be hydric soil solely?

Mr. WAYLAND. No, that is not the case. That is not the case.

Mr. SANFORD. You are saying all three have to be determined; it

couldn’t be one of the three?

Mr. WAYLAND. That’s correct.

Mr. SANFORD. All three?

Mr. WAYLAND. All of the parameters; not just one as the basis

for making a jurisdictional determination.

Mr. SANFORD. All three.

Mr. DAVIS. Congressman, may I answer?

Mr. SANFORD. How many days a year would water have to be

covered—cover the land?

Mr. WAYLAND. It is a percentage of the growing season that is

specific to the region of the country that you are looking at.

Mr. SANFORD. So how many days?

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Mr. WAYLAND. So the growing seasons vary, and the delineation

manual calls for the presence of water through saturation or inundation for a percentage of the growing season.

Mr. SANFORD. So how many days would the land have to be covered?

Mr. DAVIS. Five to 121⁄2 percent of the growing season. So it varies from the growing season. In the Southeast, it would be a longer

period than it would be in the North.

Mr. SANFORD. I am sorry? Say again.

Mr. DAVIS. It is 5 to 121⁄2 percent of the growing season. So it

would vary. In the Southeast where the growing season is long, the

requirement would be longer. In the Northeast where it is colder

and the growing season is shorter, it would be shorter.

Let me make a point, Congressman.

Mr. SANDERS. Let me just come back. I just found out that I was

right. In other words, we are both right on our query. If it is an

undisturbed wetland, you go to the second parameter, but if it was

a—if it is a disturbed wetland, it is a different check. In other

words, you have a number of different things—tools, if you will,

that you can use in determining wetland. But it could well be my

case wherein you could never see any water on the land whatsoever but based on vegetative content have it classified as a wetland.

Yes? I am sorry.

Mr. DAVIS. Along those same lines, Congressman, you are absolutely right. We use what we call secondary indicators, and it is not

necessary to actually see water every time you are out there doing

a delineation.

Now, we could do that but it would force us to wait until the

water is there, and applicants wouldn’t like that.

Mr. SANFORD. But wouldn’t you admit, then, that very problem

causes some real problems with unsophisticated landowners in determining whether or not they have a wetland?

Mr. DAVIS. I think there is some problem. There have been problems in the past, about our general understanding of wetlands,

what they are, and the importance of wetlands. If you look at wellknown wetlands like the Everglades in south Florida that we are

trying to restore, parts of the Everglades are completely dry at

times, dry to the extent that they actually burn. The Dismal

Swamp in south Virginia is another example, many parts of the

Dismal Swamp that everybody recognizes as a wetland, you could

drive a tractor across that.

Mr. SANFORD. I readily acknowledge those are wetlands. I will be

the first to acknowledge that. I think that’s a very different animal

than a quarter-acre wetland in a pine barren in South Carolina.

Mr. DAVIS. If you go to the Midwest where the prairie potholes

are, these are tenth-acre, quarter-acre, half-acre, 1-acre, 2-acre potholes that are actually farmed many times of the year. They are

dusty many times of the year, but they also provide almost the sole

breeding grounds for our waterfowl in this country.

Mr. SANFORD. I see I am out of time. My one last question is

smart growth; would you agree that our current wetland policy prevents smart growth?

Mr. DAVIS. No.

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Mr. WAYLAND. No.

Mr. SANFORD. Why?

Mr. DAVIS. Actually—— Mr. SANFORD. You would admit, then, based on current environmental policy you could never build a Charleston, which Andres

Duany would argue is smart growth?

Mr. DAVIS. Congressman, I disagree. I think the statistics that

I pointed to in this chart indicates—— Mr. SANFORD. Wait, wait, wait. Do you think you could currently

get permitted a Charleston, SC, on that same geography?

Mr. DAVIS. I don’t know. Again, it would be a very fact-specific

situation.

Mr. SANFORD. I am sorry. I am burning through time.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Sanford.

Mr. McHugh, you are recognized.

Mr. MCHUGH. Thank you, Madam Chair.

Gentlemen, a couple of quick questions. You mentioned your

three-part test. Many States, under their wetland regulations, have

minimal-size standards. The State of New York, I believe, is about

12.4 acres. Do you have a similar size qualification or criteria by

which you decide whether or not to even go in and to assess a program or not? Does size matter?

Mr. DAVIS. Yes, Congressman, we do. As indicated on this graphic, about 90 percent of the activities are covered by a general permit. These are very minor things, and if they are under a certain

size they go forward with little or no review from the Corps.

Mr. MCHUGH. What is that size?

Mr. DAVIS. Right now it is a half acre.

Mr. MCHUGH. Let me ask you, do you have a standard by which

you set your regulatory timeframe? In other words, do you have a

criteria of, well, we shall process a permit in so many months? And

if so, what is that?

Mr. DAVIS. We have some statutory requirements that require

us, for example, to issue a public notice within 15 days of a complete application. I think we generally meet that. We also have internal, within the Corps, goals that we try to meet in evaluating

permits. I think it is 100—120 days; 120 days is our goal. But that

120-day goal is for those detailed individual permits. That’s not the

big purple piece of this pie that we are looking at here. That’s that

little——

Mr. MCHUGH. I am concerned about the more difficult cases. I

understand that.

Mr. DAVIS. Right. That’s—120 days is our goal. The average time

is 118 days. That’s what we did in 1999.

Mr. MCHUGH. Also, help me to understand the process whereby—and I am thinking of a specific case in my district—before the

permit would be issued, the permit applicant was required to make

a $60,000 donation to the Fish and Wildlife Service to some

unnamed project for environmental restoration offsite, what is that

about?

Mr. DAVIS. I am not familiar with that.

Mr. MCHUGH. I see Mr. Wayland is nodding.

Mr. WAYLAND. Well, I think this could be, and I don’t know the

facts in that case——

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Mr. MCHUGH. I understand.

Mr. WAYLAND [continuing]. So I have to put that caveat out, but

some States and some Corps districts permit a form of mitigation

known as ‘‘in-lieu fee mitigation,’’ where the impacts are very small

and rather than undertaking direct mitigation onsite or offsite, the

applicant can, in effect, buy into an ongoing mitigation project.

Now, the mitigation banking approach, which is guided by much

clearer interagency policy, draws a direct link between the wetlands that are being permitted for destruction and the wetlands

that are being created or restored for mitigation.

In-lieu fee lacks that direct sort of one-for-one connection, and as

a result, a number of people, including mitigation bankers, question whether it should be permitted, should be authorized. That’s

one of the issues being examined in the National Academy of

Sciences study that I referred to earlier.

Mr. MCHUGH. I appreciate that. The reason I am asking, rather

than sit here and vent—which I could do, because we have a very

specific case that occurred in my district involving Wal-Mart, a

very savvy organization with what I think most Americans would

consider deep pockets. They had a project to establish, and ultimately did establish, a processing center in my district, where the

unemployment rate is often double digits, that eventually created

over 200 jobs.

That project, the application for wetlands ultimately came down

to two-tenths of an acre. It took 10 months to process and it cost

them $3 million in processing fees additional to the project, and

they were required, because——

Mrs. CHENOWETH-HAGE. Will the gentleman yield?

Mr. MCHUGH. I would like to finish this one——

Mrs. CHENOWETH-HAGE. I just wanted to let you know, we have

3 minutes left on the vote.

Mr. MCHUGH. I will be finished in 20 seconds.

Mrs. CHENOWETH-HAGE. Thank you.

Mr. MCHUGH. At the end of the day, and I know this to be a fact

because we negotiated it, based on nothing to do with the wetlands

remediation program or the permit, they were forced in what I

think can fairly be described as an administrative bribe, to pay

$60,000 to an unnamed project for unnamed purposes.

I would like to send you gentlemen the records of this. The county involved did a very extensive report that they shared with me,

a lot of time and effort, and I would appreciate your responding to

it because I think it illustrates the worst of this program that I

take you gentlemen at your word that you want to make better,

and I think this is what we need to look at. Can I count on you

to do that?

Mr. DAVIS. Yes, Congressman.

Mr. MCHUGH. Thank you, gentleman.

Thank you, Madam Chair.

Mrs. CHENOWETH-HAGE. We will now recess the committee subject to the call of the Chair. We will be back as soon as we finish

our votes. Thank you.

[Recess.]

Mrs. CHENOWETH-HAGE. We will now reconvene the hearing.

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I am a little bit out of breath. I just ran to the Capitol and back.

So bear with me here.

Mr. Wayland, I wanted to do just one followup question to Mr.

Sanford’s questions with regards to permitting on nonpoint sources.

Isn’t it true, though, that EPA has exempted the Forest Service

and government lands from nonpoint source pollution?

Mr. WAYLAND. Actually, what we did in our final TMDL rule was

delete the provisions that had been proposed that would have potentially involved permitting for either the forest—either activities

on Forest Service lands or activities on private lands.

So, in fact, the very interesting meeting that Congressman Sanford and I had had, as part of its upshot, a decision by the agency

that we would not apply those permitting requirements to public—

to activities on public or private forest lands.

Mrs. CHENOWETH-HAGE. My concern is that we have suffered

millions of board feet of fire out in the West and it is creating a

tremendous sediment load in our streams and it just does seem inconsistent that forests on the Federal lands are exempted from

stream pollution while——

Mr. WAYLAND. We thought that was a pretty persuasive argument and decided we wouldn’t go that way.

Mrs. CHENOWETH-HAGE. Good. Thank you.

Mr. Davis, I hope that what you reflected in your testimony just

now is a real change and a new face for the Corps of Engineers and

a new face for the EPA. The reason we are holding this hearing

is that we are afraid the old face still looms, especially in cases like

the Pozsgai case.

Now, when our majority staff, our staff counsel, called the legislative liaison for the Army Corps, he said he wasn’t excited about

bringing down people from Philadelphia. He said that it might cost

too much. I wonder, Mr. Davis, if you might have all the people

that are with you from Washington or from Pennsylvania please

stand.

Mr. DAVIS. I would certainly be glad to do that. We actually do

have somebody from the Corps’ Philadelphia District and we have

folks from the Corps of Engineers headquarters as well. They can

raise their hand or stand if they want.

Mrs. CHENOWETH-HAGE. I wonder if you would all please stand.

Now, I wonder, Mr. Wayland, if you would ask all of those who

are from your office to please stand.

Mr. WAYLAND. Anybody who is with the Environmental Protection Agency?

Mrs. CHENOWETH-HAGE. Yes. OK. I wonder how much this costs.

In fact, I wonder, gentlemen, if both of you could produce for the

record how much the entire Pozsgai costs have been from the beginning of your work with them until now. Would you please

produce that for the record, the costs for both the Army Corps of

Engineers and for the EPA?

Mr. DAVIS. Madam Chairwoman, we will do it to the best of our

ability. I don’t know what bookkeeping procedures are in place to

track that sort of thing but to the extent that we have this information we will certainly provide it to you.

[The information referred to follows:]

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Mrs. CHENOWETH-HAGE. Mr. Davis, well, before I go on to that,

I wonder if all of the lawyers presently representing Mr. Pozsgai

would please stand.

You know, there is the picture, and I think that it was testified

to that this gentleman works for the Pozsgais on a pro bono basis.

He also has a law firm to run. That’s the reason for the hearing

today, the full force of the government coming down on one individual and not just Mr. Pozsgai but other individuals who have to suffer under trying to understand the plethora of laws as well as regulations.

You heard it testified to that Mr. Pozsgai was sentenced to 3

years, of which he spent 11⁄2 years in the Federal penitentiary. He was initially subjected to a fine of $202,000, which was subsequently reduced. But I would like to put in the record a number

of other fines that the EPA has imposed on companies.

Occidental Chemical Corp., October 13, 1998, they were fined for

storing methylene chloride, chloroform and carbon tetrachloride in

open containers; storing carbon tetrachloride and chloroform sump

waste outdoors and failing to properly track manifests. Failing to

properly track manifests is huge, as well as the storage. They were

fined $244,000. That’s Occidental Chemical Co. That is just a little

bit more than what Mr. Pozsgai was fined for cleaning up a dump.

Vacation Charters Limited out of Kidder, PA, has agreed to pay a fine of $10,000; Catenary Coal Co. for unlawful discharges of

blackwater will pay a penalty of $5,000; Bobcat Oil and Gas, Inc.,

will pay a fine of $6,000, and it goes on and on.

Without objection, I would like to enter these into the record because it precisely points out the reason why we are here.

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Mrs. CHENOWETH-HAGE. We were supposed to be through with

this hearing at 2 p.m.

Mr. BURTON. If the gentlelady would yield to me just for a

minute?

Mrs. CHENOWETH-HAGE. Yes, Mr. Chairman.

Mr. BURTON. I am just going to take a second because I want you

to finish whatever questions you have. I would just like to say to

the people both from the Corps of Engineers and the EPA, and the

Justice Department if anyone is here, and that is that individual

citizens don’t understand government. They don’t understand regulations.

Even I, as a Member of the Congress of the United States, find

that many things that I am supposed to comply with I am not familiar with. Therefore, there ought to be an education process before we start legal action.

I understand Mr. Pozsgai, when people came on his property, he

said get off and he forced them off and he may have even threatened them. But, you know, I would have done the same thing. People come on my property, I have a sign that says no trespassing.

We have had death threats and all kinds of things, which you

might well imagine. So if anybody comes on my property, I am

going to run them off. That doesn’t necessarily mean that I am

doing something that’s wrong.

Yet that was one of the reasons why some of this action was

taken against him. So I think there needs to be a little more concern about the average citizen and their limited knowledge of these

things.

Second, I think there needs to be an explanation process. And,

third, if there is a strong difference of opinion, you really need to

have some ombudsman for them because, as Helen Chenoweth,

Congresswoman Chenoweth has just pointed out, you have unlimited resourcing to go after somebody. You have the power of the

government. You have the power of the taxes that are collected to

go after anybody you want, and it could be you someday for some

other reason. You are citizens as well.

And you go after this guy and he doesn’t have an attorney. He

hires somebody who is inebriated half the time. He goes into the

courtroom, almost gets disbarred. He doesn’t know. He doesn’t

mess with lawyers very much. And so he needs to have some concern.

I really believe if this had been handled a different way it might

have been resolved in a much more agreeable manner. So all I

would like to say is in the future, and please tell your leaders—

I will convey this myself to the head of the EPA; I talk to her on

a regular basis, and I will be glad to do that with the head of the

Army Corps of Engineers, I will make sure we do that—I believe

that there ought to be an office of ombudsman for each one of your

agencies and people who are having problems legally with your

agencies ought to be told if you don’t understand, we will explain

it; and if you still have a problem, here is the number for the ombudsman; he represents the individual citizen and you can go to

him or her and talk to them about that.

223

If you had that, I think it would make your jobs easier. It would

probably cut down on your overall expenses and you would get

these things resolved without major problems like this.

I am kind of angry because of the way this gentleman was treated, especially since I remember back in the 1956 when the Hungarian uprising took place and what they had to go through, and I

know these people have fled communism, lived in what we called

the captive nations, had to go through things for years and years

and years. And all I would like to say is when people come here

seeking freedom and they look at that Statue of Liberty, they think

heaven has arrived, I am here. And then they go through something like this, and they think, man, what did I leave that other

place for? It is just as bad.

So all I am saying is be a little more concerned about these people and try to have someplace where they can get answers and at

least some legal answers through an ombudsman so they don’t

have to go through all the things that he went through.

With that, Madam Chairman, thank you for giving me this time.

Mrs. CHENOWETH-HAGE. Thank you, Mr. Chairman.

Mr. BURTON. I also have some questions I would like to submit

to you if you would answer them for the record.

Mrs. CHENOWETH-HAGE. And I have numerous questions I will

submit to you for responses.

I do want to say, Mr. Davis, that your testimony represented

something unlike what we have to face in the real world. In part,

the fact is that the permitting time you testified to was 18 days.

In the real world, based on a study that was submitted to Senator

Baucus and Senator Chafee, the average lead-in and lead-out time

is 262 days.

I am just saying that, again, this just points out the confusion,

the frustration, that individuals are feeling out there.

I know that you are both probably husbands and fathers and uncles and, you know, you can see the human face on this whole

thing. You are not just nameless, faceless people who have to run

agencies.

You heard the testimony that was presented here and I would

just ask you, as a member of this body, that you personally give

this case your attention, and cases like this. This should be over.

This is not good for government. This is not good for your agencies.

It discourages the grass-roots out there.

I join the Pozsgais in saying what can we do to make this end?

I think it is in your hands at your level, and I thank you very much

for being here. Like I say, I do have numerous questions that I

wanted to ask you but we must be out of this room. So I will submit them for the record, and for your answers the record will remain open for 10 working days. Should you wish to amend or add

to your testimony, you are welcome to do so.

With that, I thank you; and I will be staying in touch with you

personally. Mr. Davis.

Mr. DAVIS. Madam Chairwoman, could we perhaps maybe make

one point? I wanted to clarify for the record that the individuals

with me today from the Army and the Army Corps of Engineers

are not necessarily related to Mr. Pozsgai’s case; no more than a

couple of those. We were invited to come testify about Federal wetVerDate 11-MAY-2000 08:55 Aug 07, 2001 Jkt 000000 PO 00000 Frm 00231 Fmt 6633 Sfmt 6633 C:\DOCS\72734.TXT HGOVREF1 PsN: HGOVREF1
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lands policies so I brought staff that are experts in those areas, and

so it is not illustrative or indicative of Mr. Pozsgai’s case and the

Federal effort on that case.

Mr. BURTON. If the gentlelady would yield. But I have worked

with Janet Reno and the Justice Department, as you probably are

well aware, for a long time and they have thousands of attorneys.

All I am saying is that a lot of this could be eliminated if you had

an ombudsman in place they could go.

Mr. DAVIS. You raise some good points.

Mrs. CHENOWETH-HAGE. Gentlemen, I thank you and this hearing is adjourned.

[Whereupon, at 2:20 p.m., the committee was adjourned.]

[NOTE.—The publication entitled, ‘‘The Impact of Individual 404

Permits on Ohio Wetlands 1990–1995,’’ may be found in committee

files.]

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Æ