Who are these People?

Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - March 1992

WHO ARE THESE PEOPLE?
PENNSYLVANIA ENVIRONMENTAL QUALITY BOARD

Much has been written in the Landowner about the “wetlands” issue specifically and about environmental regulation affecting privately owned land in general. An earlier article describes the role of the Pennsylvania Fish Commission in environmental policy and regulation in Pennsylvania. This article focuses on the critical role of the Pennsylvania Environmental Quality Board in wetlands regulation.

The tentacles of wetlands regulation reached, literally, into our backyards and faceless bureaucrats dictate what we can or cannot do with our land. It goes without saying that wetlands protection regulations continue to be a source of concern and controversy in Pennsylvania. Everyone agrees the wetlands are an important ecological resource. There is considerably less agreement concerning the level of protection to be provided for them, particularly for privately owned wetlands.

Readers of the Landowner, however, know the horror stories, either having lived through them personally or having learned about them from friends and neighbors who have been victimized by excessive wetlands protection regulation and enforcement. In the space of a very few years, farming practices and other uses of land, which previously have been entirely lawful and even encouraged and lauded by the government, have somehow become illegal. Citizens engaging in such activities have been subjected not only to civil and criminal sanctions but also to unwarranted attacks in the media by government officials and so-called public-interest groups.

The shackles on land-use resulting from wetlands protection regulation in Pennsylvania are well documented and the problems are beginning to be fully recognized by landowners. Suffice it to say that there exists out there a regulatory maze in which unwary landowners can easily lose his way.

Spearheaded by Pennsylvania Landowners’ Association, efforts at the state and federal level to obtain relief from some of the more onerous requirements are beginning to show results. However, much work still needs to be done because advocates of stringent wetlands protection are not satisfied with either the current status quo or even the “Bush no net loss “policy. Instead, the wetlands lobby urges an “ambitious long-term program of ecological restoration which would take the nation beyond nil Net loss and result in a net gain of 10 million a. of wetlands by 2010.”

These same people also decry the recently proposed modifications of the Federal Wetlands Delineation Manual, arguing the use of the revised manual will allow farmers and developers to put more of their own land to productive use! just a few years ago you could confront such arguments by asking ” what is so wrong about using in developing our land for productive, economically beneficial and non polluting purposes? ” now, landowners are expected to abandon use or development of their own land–with their heads hung in shame for even suggesting and–should they, in efforts to make their own land productive encounter swampy areas.

Many landowners have experienced firsthand the often arrogant and dictatorial manner by which front-line enforcement officials seek to impose wetlands use restrictions. It doesn’t seem to make any difference if these officials are from the Environmental Protection Agency, the Army Corps of Engineers, the Fish and Wildlife Service, the Fish Commission or the D E R. And, as legal counsel and the courts have told us, the requirements that these “enviro-police” are enforcing our official, ” on the books and ” regulations and not something dreamed up by a few rogue bureaucrats who have run amok.

By now, we know that each of the federal and state government agencies mentioned above has a role in the enforcement of wetlands regulations. We all know now that federal agencies have far reaching jurisdiction over wetland which is in addition to that of the D E R and the Fish Commission. We are aware that all the agencies use The Federal Manual when it suits their purposes. Some of us know about Joint Permits, 401 Certifications, Swapbuster exemptions and MOUs. Very few of us, however, know or understand how the regulations the government is enforcing came into being.

For something that has such a dramatic impact on the use of privately-owned land, logic tells us that wetlands protection policy and resulting regulation was established a clearly articulated by a duly elected, legislative representatives of the people; either by the Congress or the General Assembly of Pennsylvania. However, in today’s world, logic does not always apply. It will probably surprise many readers that the word “wetlands” did not appear at all in the federal or Pennsylvania statutes which are the asserted authority for the Draconian wetlands enforcement actions and severely and use restrictions with which we are all becoming so familiar. The entire wetlands protection scheme and the burgeoning wetlands protection bureaucracy was spawned by regulations with scant involvement by elected legislators. The Pennsylvania wetlands regulations are ultimately the work and responsibility of the Environmental Quality Board ( “EQB”), the rule making arm of D E R.
By now, most all of us know with a congressman Ridge along with many of his colleagues in Congress, have jumped into the wetlands issue in a big way and he is one of the leading advocates for federal legislative reform. Similarly, we have heard that state senator Brightbill is advocating and has introduced reform legislation for Pennsylvania. Both pieces of proposed legislation would assure protection of truly valuable and important wetlands but would also provide some relief from the excess of the present regulatory scheme.

We also know that in Pennsylvania a broad spectrum of organizations representing landowners, farmers, timbermen, home builders, manufacturers and mineral developers, has formed a coalition to attempt to bring more balance into wetlands regulatory policy. It is encouraging that some legislators and officials are taking a hard look at wetlands policy.

However despite all the new and cry over the wetlands issue from all corners of Pennsylvania, the reform legislation and has not been enacted, and the wetlands lobby is pressing for more protection and restrictions on the use of development of privately-owned land. And despite all the controversy, Pennsylvania’s wetlands regulations have not been relaxed but have been made more onerous.

How can this be you might ask, particularly since organizations such as Pennsylvania Landowners ‘ Association seem to have made great progress in educating large segments of the public and numerous legislators about the problems be countered by ordinary Pennsylvanians and confronted by excessive wetlands regulation. A large part of the answer in Pennsylvania can be attributed to what is known as the environmental “rulemaking process” i.e. the mechanism for developing and in acting D E R ‘ s environmental regulations are formulated, adopted and promulgated by the Environmental Quality Board. (“EQB”). Stated another way, the EQB makes the rules and regulations which are administered and enforced by D E R and which the Fish Commission can also in force.

Regarding wetlands regulations specifically, on October 12th, 1991, despite the public controversy and debate the EQB went ahead and adopted substantial amendments to Chapter 105 of D E R’s regulations covering wetlands, little concerned that the Senate of Pennsylvania was addressing a wide variety of issues raised by a host of affected landowners and the Wetlands Coalition and the fact that similar reform effort was under way in Congress. The point is that for whatever reasons the EQB rulemaking process seems to exist in something of a vacuum, at least on some issues, insulated to a large degree from everyday reality at apparently oblivious to issues raised in the well publicized and often acrimonious public debate over wetlands in Pennsylvania and elsewhere.

Most all of us have heard of the EQB. For example, readers of the landowners will recall that our friends from the Fish Commission in fact have two votes on the EQB. However, I doubt that more than a handful of us can name any of the EQB’s members or know how they came to their positions. A few of us are familiar with the makeup, structure, and operating procedures of the EQB. But how many of us truly understand the role, power and importance of the EQB in Pennsylvania?

As will be discussed later, about the only good news appears to be that we can identify the names of the individuals statutorily responsible for environmental policies and regulations, and specifically those pertaining to wetlands in this Commonwealth. The bad news is that, as a practical matter, ordinary citizens have virtually no effective recourse if they disagree with specific policies or regulations established by the EQB.

On the table A, The act of the General Assembly which established the composition or “make-up” of the EQB is reproduced with the names of the present EQB members. Careful readers will note that only the four legislator members hold their position on EQB by virtue of having been elected to legislative office by the citizens of Pennsylvania; even those legislators and all of the other you EQB members are political appointees in one way or another.

Table A Readers should also note been altered it can be appointed for each board member and eight members (just over one-third of the 21 seats on the EQB) can constitute a quorum to conduct business i.e. to adopt a regulation. A cynic might suggest that a very small group of unelected, largely unknown and unaccountable individuals’ wheel tremendous power in the field of an environmental policy and might even question the wisdom of such a system.

It seemed clear from the makeup of the EQB that the General Assembly wish to have Pennsylvania environmental policy and regulations formulated in a process which numerous diverse interests including the is advanced and represented by important executive branch departments, independent commissions, and the legislative branch of private interests, are taken into account. An idealist would also assume that the EQB was to be independent and the liberty of and the choices and decisions would be made on the basis of full discussion of options, complete understanding of technical issues and the balancing of competing values. In reality, the EQB is not all that independent and there are serious questions about its understanding of technical issues and balance. Although it may not be readily apparent, for all practical purposes, the Secretary of D E R in all probability, and surely the Governor and Secretary together, can control the EQB. In the vast great majority of rulemaking situations, D E R staff proposes a particular set of regulations and the governor’s appointee, the Secretary of D E R, as both Secretary and Chairman of the EQB; setting controls the agenda for rulemaking.

Moreover, because of the technical complexity of modern environmental regulations and the other demands on the time of individual EQB members they must rely heavily on D E R staff for summaries, opinions and recommendations when considering proposed regulations. D E R ‘ s control the flow of information and the EQB’s Operating procedure, coupled with the inherent loyalty of the cabinet and other political appointees to the Governor, virtually guarantees that the ” administration has the votes ” on the EQB and that the EQB will adopt whatever policy regulation the this Governor wants.

Table B In the context of wetlands protection regulation, readers of the landowners are aware that Governor Casey is dead set against compensation for wetlands regulatory takings, vigorously supports “no net loss” and advocates increased protection of wetlands.

The EQB rulemaking process is quasi-legislative and involves what is known as public notice and comment. Each proposed regulation or set of regulations is “advertised” in the Pennsylvania Bulletin and interested persons are given the opportunity to file written comments on what is being proposed. Based on the nature of the particular regulation, the EQB mayor may not conduct a public hearing on the proposal. As a hearing is held is typically attended by one or just a few EQB members or alternates. Because the process is quasi-legislative (not adjudicatory), no cross-examination of persons testifying is permitted in such persons are usually limited to the amount of time allotted for their testimony.

It is generally a understood the EQB voting members usually did not read the often voluminous written comments which are submitted and rarely hear the “live” testimony.
Instead, the D R staff prepares a “commented response ” document summarizing particular comments in providing the staff’s reaction to the comments. This procedure may separate some of the week from the chaff but it also provides a filter which allows D R to control the flow of information to board members and to put a D R “spent” on the commented technical data submitted by commentors.

It is recognized that EQB members from the CAC usually have the most in-depth familiarity with the D E R regulatory proposals and that the CAC itself has thoroughly reviewed them.

Except in limited circumstances, persons wishing to have input in the formulation of given D R regulation are not permitted to speak at EQB voting meetings at which proposed regulations are discussed and theoretically debated, although true debate is rare.

Oddly, although almost everyone involved is a public servant or suppose represents some components of the public interest, a direct communication or contacts with members on pending regulatory issues is apparently considered to be unseemly and the effectiveness of lobbying individual EQB members is questionable in many instances.

It is enough here to say that the EQB and Varity enormous influence over the day-to-day affairs of the citizens of Pennsylvania. Questions naturally rises to whether the EQB rulemaking process provides a full airing of all sides of particular regulatory issues and whether it is sufficiently responsive to the rights and interests of the public and individual citizens, which can be dramatically affected by D E R’s regulations.

My own view is that what might be called “pro-environmental /anti-development” interests have better access to and influence in the Pennsylvania Environmental rulemaking process than do other interest groups and citizens. This is due in part, understandably, to the nature of the D E R itself as primarily an environmental protection agency. It has no stake particular interest in farming, commerce, land and mineral development or manufacturing. In fact, the pro-environmentalist-anti-development advocates are singing to the choir when they talk to D E R. Pro-development advocates seem to be viewed as minor irritants to whom some “lip-service” ( public comments?) must be paid in the rulemaking process. This, coupled with sometimes appears to be myopic attitude on the part of some EQB members and the highly pro-environmentalist posture of the Casey Administration, creates the perception and perhaps the reality that the EQB is stacked against pro-development interests.

To the extent that this state of affairs is of concern to citizens interested in the development and use of land and other natural resources in Pennsylvania, it must be recognized that things are not going to change unless opposing voices are raised in heard. The regulated community creates the jobs, produces the food and energy, builds houses, pays most of the taxes and elects the governor this and legislators. In the public interest surely requires that these interests be accounted for in the environmental rulemaking process by more than lip service.

A good place to start is with the members of the EQB. If you think they’re not reading your comments in hearing your testimony public hearings, you should tell them directly. You pay majority of them and the people who appoint them. Are they listening?

Pennsylvania Landowners’ Association, Inc.

P.O. Box 391

Waterford, PA 16441

Phone: 1.814.796.4023