Happy Birthday, Map!

There’s been plenty of talk recently in Bucks County about flood control and the decision on Dark Hollow Dam. The emphasis on flood-proofing properties, and getting people out of the flood plain is certainly a good way to go. As we’ve said before, our county officials should aggressively pursue more funding to increase the number of buy-outs.

In general, we should be paying more attention to the low-lying areas of the landscape that naturally serve to store flood waters. After all, those same low-lying areas are the ones where government is buying out property owners to get them out of harm’s way. Many of these areas are wetlands, and therefore activities in them are regulated by both the state and Federal governments. Many things are considered before granting a permit to fill wetlands, including its possible role in storing flood waters. Taking up a wetland’s physical space with fill reduces its utility for flood storage, and downstream flooding might be aggravated. That is another reason why enforcement of state and Federal laws concerning wetlands is important. When someone illegally fills a wetland, we have to rely on government to get them to promptly remove the fill and restore the flood storage and other wetland functions.

Here’s a picture [ link ] taken in early July, 2001, of an area in lower Bucks County where it certainly appears that someone has been busy (all photos were taken from the public rights-of-way adjacent to the site because PU respects private property rights). Lots of dirt and looks like pieces of concrete. Here’s another picture [ link ] of that same area from a different angle and without foreground clutter. It looks like plenty of grading has been taking place.

One last picture [ link ], with a name on a sign, which might give a clue as to whose place this is. The sign says "Pozsgai Trucking Terminal." Yes, this is the famous property of John Pozsgai, imprisoned and fined for violation of the Clean Water Act’s prohibition on unpermitted wetland fills. In late December, 1988, Pozsgai was convicted, by a federal jury, of 40 counts of unpermitted discharge of fill material to waters of the United States. He received a three year jail sentence (another 27 months to serve concurrently), five years of probation, and a $200,000 fine (later reduced to $5,000 for inability to pay). The Third Circuit Court of Appeals upheld the conviction and the U.S. Supreme Court refused to hear the case. He also lost a civil suit brought against him by the U.S. and was ordered to restore the site. Pozsgai has been turned into a crusade by self-proclaimed "property rights" activists as a victim: of government disregard of sacred property rights, of confusing and contradictory wetlands laws, and of government agencies running amok. You hear of his status as an immigrant from Hungary (fleeing after the 1956 revolution), his desire to clean up an illegal dump, his desire to comply with the law despite his inability to understand the confusing regulations, his poor legal counsel, etc. etc. You can find all kinds of (one-sided) information on his case on many of the "property rights" groups web sites. Finding other information is tougher. Doesn’t seem like the environmental groups mention him by name anywhere. So let’s go to the official record. If you take a look at the opinion of the Third Circuit in the appeal of the civil suit (999 F.2d 719 (3rd. Cir. 1993); unfortunately, not on the internet), you learn some other things about the case. How he hired three separate engineers before buying the property, and all three said it contained wetlands and at least one said Pozsgai was unlikely to get an Army Corps of Engineers’ permit. How his contract for the property was contingent on getting building permits, which presumably would have allowed him to walk away from the sale. How he instead negotiated $32,000 off the price and bought the property "as is." How the Corps told him numerous times to stop his filling activities. And how he was videotaped filling the wetlands (not using a wheelbarrow, folks, dumping and grading 25 truckloads of dirt) after a Federal district court issued an order calling for him to halt filling the wetland. All in all, 400 truckloads of material were deposited (the 25 truckloads were the ones caught on tape). This is all on the record, folks.

It would be fun to get into the appeal and his arguments why he wasn’t in violation of the Act, but it’s probably best left alone. Suffice to say that they couldn’t very well deny that the fill was actually placed (that danged videotape!), so the defense was an attack on the Corps’ regulations and their interpretation of the Act. The Court didn’t agree and summarized the arguments by quoting from a Supreme Court decision on a different attempt to attack laws and regulations in the courts: "respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency..." So you’re saying all that happened years ago–has the area been restored? How can one drive by the site a couple of weeks ago and take pictures like these? What the pictures show is pretty much what you can see from the road. If restoration has been done, we couldn’t see it. We called up the local Corps office and was told the whole file has been sent to Washington, DC because of a Congressional hearing last year. What gives? Although Pozsgai has been to jail and since released, the case still gets continual attention from not just the"property rights" movement--but also members of Congress who, shall we say, don’t agree with the way that the Clean Water Act has been (and still is) applied. You’d think that Congress could read the Court’s decision and take heed: "respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency..." If there are problems with the Clean Water Act, who’s in a better place to fix it than members of Congress? But the last time we checked, you still need a majority in both houses to pass legislation. Remember former Rep. Bud Shuster’s re-write of the Act? H.R. 961, the "Dirty Water Act," barely passed the House and died in the Senate because of the uproar it caused. So it’s easier for Congress to beat up and intimidate the agencies for enforcing the law than to spend the time and effort to work to even attempt to change the law, especially when most Americans (still) support the concept of "clean water." So Pozsgai’s case is periodically trotted out by for members of Congress that dislike the law, the regulations, and the agencies. The latest episode (as far as we can tell) was an October 6, 2000, hearing before the House Committee on Government Reform, where Pozsgai’s daughters testified [ link ], along with officials from EPA [ link ] and the Army Corps. The EPA official, Robert Wayland, director of the Office of Wetlands, Oceans, and Watersheds, spoke of the wetlands program in general, and then started his testimony relating to Pozsgai with the words "in light of the interest your letter of invitation expressed in the John Pozsgai case." That means someone on the Committee wanted to take yet another whack at the agencies over Pozsgai. It must be standard fare right before an election because there’s not much new information to be brought to light. This attention, however, is probably one reason why the restoration is lagging (besides serving as a periodic warning to the agencies about their aggressiveness in enforcing the law). While things like the October hearing may be entertaining in a perverse kind of way, for the agencies another letter from Congress on Pozsgai is probably like hearing you need yet another root canal. But as long as the property is not restored, the agencies will have to deal with Pozsgai. PU bets that anything the Corps or EPA says or writes to the guy is going to be on a dozen Congressional desks within hours, keeping the "horror story" alive. Provides the "property rights movement" and their Congressional twins (joined at the fax machine) with a handy jack-in-the-box. Don’t like the wetlands laws? Cue John Pozsgai. EPA’s Wayland said that "the [Pozsgai] wetlands in question provide storage capacity for flood waters." It’s about 14 years since Pozsgai conducted filling activities. Fourteen years that waters of the United States have been polluted and flood storage diminished upstream of Morrisville. People testified at his trial about the increased flooding. The idea is that if someone illegally fills an important wetland, that area has to be restored, so that it can function properly again. If the area is not restored, what is the point? If the area is not restored, then this man went to jail for failure to get a permit. He served jail time not for polluting waters of the United States--but failing to get some piece of paper issued by the Corps of Engineers. The House Committee on Government Reform ought to be outraged at the agencies failure to carry out the restoration. Instead, it appears they fuss over a man that went to jail after being convicted by a jury–not the agencies-- for acting like he was above the law and a Federal Court order. But it is after an election, and it is a new Congress, after all, and the Committee has some new members. Maybe the Committee’s attitude will change. One new member, Rep. C.L. "Butch" Otter, R-ID, is going to pay a $50,000 fine to EPA for filling wetlands on his ranch [http://www.idahostatesman.com/news/daily/20010601/LocalNews/125362.shtml]. Maybe the Committee’s attitude will change for the worse. We will probably hear of yet another Pozsgai hearing before the Committee before the 2002 elections. Well, PU, in its own small way, will try to get the ball moving the other direction. Come on, EPA! Director Wayland said that "EPA and the Corps share Section 404 enforcement authority." If it’s not restored, then the law hasn’t been enforced. Where’s the U.S. Fish and Wildlife Service? They have folks running all around the state looking at wetland permits and fills, and they were involved in the Pozsgai case. Maybe they're lying low, happy that they don't get calls from Congress asking them to explain themselves.

That leaves us with the Army Corps. What’s the deal? According to the Court of Appeals (999 F.2d 719, 736 (3rd Cir. 1993)), both parties stipulated "to a new map detailing the wetland areas to be restored." That took place on August 15, 1991. The map is 10 years old today! Happy Birthday, Wetlands Map! Maybe the Corps will have a celebration in the office and perhaps a cake. Maybe Congress will hold yet another hearing. It seems that either of these events have a greater chance of happening than does wetland restoration at this site.

Here are two short letters PU is mailing today. We will publish the replies.

To:

Regional Administrator
USEPA Region 3
1650 Arch Street
Philadelphia, PA 19103

District Engineer
Philadelphia District
US Army Corps of Engineers
Wanamaker Building
100 Penn Square East
Philadelphia, PA 19107

Supervisor
US Fish and Wildlife Service
Pennsylvania Office
315 S Allen Street, Suite 322
State College, PA 16801

Greetings:

We have learned that a wetlands map delineating the areas to be restored on the John Pozsgai property, Bucks County, Pennsylvania, has been agreed upon and is now ten years old. From what we have learned, the wetlands that were illegally filled have not been restored as ordered by the US District Court.

Please inform us of the progress of the restoration and of your agency’s role in the restoration. Thank you.

Sincerely,

Joseph W. Turner,
Secretary-Treasurer

cc: US District Court, Eastern District of Pennsylvania

US House of Representatives, Committee on Government Oversight

***********

The Honorable Dan Burton, Chairman
Committee on Government Oversight
US House of Representatives
2185 Rayburn HOB
Washington, DC  20515

Dear Congressman Burton:

We have learned of your Committee’s hearing on October 6, 2000 (106^th Congress), on wetlands policies and the case of Mr. John Pozsgai of Bucks County, Pennsylvania. You heard testimony from Mr. Pozsgai’s daughters and from Federal officials from the Environmental Protection Agency and the US Army Corps of Engineers and possibly others. We do not know the purpose of the hearing, whether it was for the Pozsgai case in particular or wetlands policies in general, as readily available information on the hearing is limited.

I am a resident of Bucks County. We have been suffering severe flooding in the area the last few years, and much of that is attributable to destruction of flood storage in wetlands such as those filled by Mr. Pozsgai, as well as flood plain development. At his trial, testimony was given as to the problems with flooding downstream of the wetlands, and I personally know people whose downstream homes have been flooded.

It has been ten years ago today that both the government and the Pozsgais agreed to a map that delineated the areas to be restored. As far as we have been able to tell, little or no restoration has been done on the site. When we inquired at the local office of the Corps, we were told that the entire file had been transported to Corps Headquarters in Washington, DC, because of your Committee’s hearing. We are making a written request of them, the EPA, and the US Fish and Wildlife Service on the progress of the restoration effort.

We cannot help but wonder if the attention given Mr. Pozsgai’s case by Congress delays the restoration. What insight did the Committee gain by hearing the two sides of Mr. Pozsgai’s situation? Even the most ardent opponent of the current wetlands program would be hard- pressed to say that Mr. Pozsgai’s case is representative.

If Mr. Pozsgai has truly been victimized by the US Government (or continues to be victimized), surely Congress could pass some specific remedy, including removing his fourteen acre site from any Clean Water Act provisions. But it has not done so, and we are unaware of any remedy that any Member has ever introduced. Neither has Congress substantially amended the Clean Water Act. The law Mr. Pozsgai broke remains the law.

Mr. Pozsgai ignored orders from the Corps and the District Court. He was convicted by a Federal jury and sentenced accordingly. He has been released but still has not restored the wetland. Perhaps "why not?" is a suitable question for the Committee to investigate. And if the Committee holds additional hearings where Mr. Pozsgai’s case is again a topic, some of his downstream Morrisville neighbors might give the Committee a new perspective.

Sincerely,

Joseph W. Turner
Secretary-Treasurer

cc: Rep. Jim Greenwood

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