{
  "id": "RL30423",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "RL30423",
  "active": false,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 101773,
      "date": "2000-02-17",
      "retrieved": "2016-05-24T20:38:58.482941",
      "title": "Wetlands Regulation and the Law of Property Rights \"Takings\"",
      "summary": "When a wetland owner is denied permission to develop, or offered a permit with very\nburdensome\nconditions, the property's value may drop substantially. Wetlands programs also may impose costly\ndevelopment delays. For these reasons, federal and state wetlands regulation continues to generate\n\"takings\" lawsuits by land owners. Such suits allege that by narrowing or eliminating the economic\nuses to which a wetland can be put, the government has \"taken\" (permanently or temporarily) the\nwetland under the Fifth Amendment Takings Clause.\n  As background for continuing congressional efforts to reauthorize the federal wetlands\npermitting program, this report reviews the takings cases involving wetlands regulation. We include\nnot only federal wetlands permitting program cases, but state ones as well. Inclusion of the latter\nseems particularly appropriate in light of the debate as to whether states should be given a larger role\nin implementing the federal permitting program, with the specter of state liability for takings. \n  For at least the last five years, there have been no final, reported court decisions finding takings\nof wetlands, in either federal or state courts. Notwithstanding, the influence of takings law on how\nwetlands programs are implemented and its relevance to future legislative efforts commends\nattention to the issue.\n  A taking claim cannot proceed unless it is \"ripe\" -- e.g., unless there has been a \"final decision\"\nby the regulator. Mere assertion of jurisdiction over a wetland is rarely deemed final action. \nHowever, the wetland owner need not pursue government approvals or variances if doing so would\nbe futile. \n  State appellate courts generally are more willing to accommodate regulator concerns than the\nU.S. Court of Federal Claims (CFC) and Federal Circuit, and often have required a total or near-total\ndeprivation of economic impact as a prerequisite to finding a taking. As a result, the several CFC\ndecisions during the 1990s finding a taking on the basis of federal wetlands permit denials were not\nmatched by a similar trend in the state appellate courts. \n  Two issues in the wetlands takings cases have been especially pivotal. First, how to define the\nphysical extent of property to be used in the taking analysis to gauge the impact of the government's\naction? Most parcels contain intermixed wetlands and uplands, so that a bar on development of the\nwetland leaves the entire parcel with sufficient economic use to defeat a taking claim. Second, what\nrole is to be played by the fact that the wetlands scheme predates plaintiff's acquisition of the\nproperty? Several recent decisions have spurned takings actions on the ground that the preexistence\nof such a scheme defeats legitimate development expectations.\n  Other issues arising in the wetlands takings cases include how to attribute taking liability when\nmore than one level of government is involved at the same wetland, and whether post-permit-denial\noffers to purchase from speculators, conservation groups, or government agencies, are proper\nevidence of the wetland's \"after value.\"",
      "type": "CRS Report",
      "typeId": "REPORTS",
      "active": false,
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      "topics": []
    }
  ],
  "topics": [
    "American Law"
  ]
}