Reflecting back, if there were one defining moment in my regulatory career as a field consultant for the NC Division of Coastal Management (NCDCM), it would have been this: During that time, NCDCM worked closely with agents of the regulatory branch of the U.S. Army Corps of Engineers (USACOE), and we often made joint site visits because of our overlapping jurisdictions. We also coordinated enforcement actions, provided project bio reports, and generally spent a lot of time talking back and forth.

This agency interaction made us privy to a lot of fascinating regulatory tales. Like the time a car full of federal environmental regulatory agency representatives (National Marine Fisheries Service, Fish and Wildlife Service, and the USACOE) backed over the favorite dog of a difficult violator while leaving his home after a tense meeting. As I understand it, the situation went from about a nine to a 15 on a 10-point scale of rage and stayed there until it was finally determined the dog was okay.

But the most defining moment was the story of a reported exchange between a USACOE enforcement person and a different violator. In an on-site meeting, this violator offered to deed another wetland area he owned to the federal government in exchange for the wetland area he had just filled. The corps representative snapped back, “Thank you, Mr. Smith, but we already own that!”

They already own it. That’s the environmental regulatory culture. That’s how bureaucratic agents think. I eventually left for several reasons, but one reason was that I certainly didn’t think that way.

In that situation, they were not talking about the vast environmentally sensitive areas the government does own. After all, the state holds title to all land below the normal water level in non-tidal areas and the mean high-water mark in tidal areas. They were talking about property above the normal water level to which the accused held a deed recorded in the county courthouse at the register of deeds.

Despite what my regulatory compatriot said, the government didn’t own that land because they never paid the guy for it. And we have state and federal agencies that have simply bullied rightful owners out of their ownership rights by threats of legal action, and if necessary, loss of freedom, if the owner elects to use their properties in certain ways without certain permits; permits which are generally unavailable, by the way. The government has guns and won’t hesitate to use them, even if its actions are equivalent to armed robbery.

So, if you are all hot and bothered and wondering what is happening to the U.S. Constitution now, you are a little late to the game. This has been going on for 50 years.

It is an immutable economic principle that anything free will be overused. When the government discovered wetlands could be absconded by force and without any cost, the obvious course was to take it to the max. I think that everyone would agree that we need to protect the truly environmentally sensitive areas, but is it really “waters of the United States” when the water only breaks the surface of the ground for maybe two weeks out of the year?

Never one to ask the unthinkable, but what would a constitutionally compliant wetland protection scheme look like? Has anyone ever asked the question? After nearly half a century of a confiscatory wetland policy, is there a better way, or have we simply surrendered our constitutional form of government and now just want to be left alone? (They are not going to leave you alone, by the way.)

When I was a regulator, the argument was always the government couldn’t afford to buy the privately-owned wetlands. But when the government eventually made funds available to buy environmentally sensitive properties, they moved to right the wrong, correct? Nope.

The NC Clean Water Management Trust Fund has made over $1 billion available to buy properties since its inception in 1996. Despite this, there has been no concerted effort to address the constitutional inequities of government confiscatory wetland policies. That money could have gone a long way, but instead, the program has become essentially a perpetual Woodstock lovefest of left-wing environmental groups doing snow angels on typically non-jurisdictional dry land. After all, with the privately held jurisdictional wetlands, “they already own it.”

So, what if the government was required to transition over to a constitutional compliant wetland management system? What if the agencies were given, say, five years to transition over to wetland management from the current system of wetland rule? Outside the government just officially admitting to having taken the land and now paying for it, are there other strategies that could be employed?

Well, I am sure there are some people who would be happy to just donate their wetlands if they were asked. Then there are philanthropists, who have an environmental conscience, who may want to join in with the program. The state could also offer packages of services we normally pay for in exchange for fee simple ownership. There may be an offer of a tax deduction. Still, there are others who would be enticed to exchange their wetlands in exchange for free lifetime fishing and hunting licenses and/or free state-supported college tuition.

In settling this matter with the government, owners would likely just have to write off the five-decade loss of use to bring this ongoing injustice to a mutual resolution. But in giving, we will be gaining a lot. Righting the sinking constitutional ship will have its costs.

Moving away from an enforcement model to a management model would also lead to cost savings concerning regulatory agency expenses. The NC Coastal Management currently costs over $7 million per year to operate as a regulatory program. These costs are met by a mix of both state and federal funds, but the organization is already operating the Estuarine Sanctuary Program, which manages land as opposed to regulating development. They have the framework from which to start.

Finally, when they are forced to pay for and own the wetlands, the agencies will also get real about what areas really need protection and what areas don’t.

If we are serious about putting this country back on the road to being a constitutional republic, these are the kind of difficult matters we are going to have to tackle. A constitutional compliant wetland management program is doable if we are willing to consider the possibility.

Nelson Paul is a real estate agent, former NC Coastal regulator, inventor, husband, and father of four, and a grandfather of seven.