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Robert Brace v. United States

ELR Citation: 37 ELR 20260
Nos. No. 2007-5002, (Fed. Cir., 10/10/2007) affirmed

The Federal Circuit affirmed the lower court’s judgment that no taking occurred on a Pennsylvania family farm where a U.S. Environmental Protection Agency consent decree required appellant-farmer to reestablish wetlands on a portion of the farm. The farm is an integrated whole despite the existence of a road bisecting the parcel. This finding is based in part on the existence of a comprehensive drainage plan, a single deed, and a single conveyance. In its takings analysis, the lower court found that application of the consent decree and corresponding regulation of the property under the Clean Water Act (CWA) resulted in a diminution of value of approximately 14%, which is considerably lower than the diminutions found in U.S. Supreme Court and Federal Circuit decisions to be takings. This finding is based in part on a “highest and best use” of the farm that is consistent with existing zoning and community development patterns, and the preexistence of the CWA at the time of conveyance as a factor moderating reasonable investment-backed expectations of the appellant-farmer.