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Wetlands Regulation and the Law of Regulatory Takings

June 2000

Citation: ELR 10468

Author: Robert Meltz

Talk about wetlands preservation today and you may soon be talking about private property and takings. The reason is simple enough: while the need for wetlands preservation is widely conceded, many are privately owned—in the case of the federal wetlands permitting program, almost 75% of the covered acreage in the lower 48 states. When a wetland owner is denied a permit to develop property (or offered a permit with very burdensome conditions), its value may drop substantially. Even when a permit is granted, permit processing time or agency errors may on occasion impose costly development delays. Accounts of landowners aggrieved by wetlands regulation have been widely circulated by the property rights movement, and challenged by environmentalists.

The conflict, as viewed by some, is straightforward. The benefits of wetlands preservation, they argue—water filtration, wildlife habitat, protection against flooding and erosion—inure to the public. By contrast, the burdens of wetlands preservation, in terms of development denied, fall on the wetland owner. (The burden is enhanced because coastal regions, lake fronts, and riversides are especially coveted areas in which to build.) The public receives the benefits of wetlands without having to compensate the wetland owner.

The author is a legislative attorney with the American Law Division of the Congressional Research Service (CRS). This Article is based upon a CRS Report to Congress of the same title (CRS Rep. No. RL30423). The views expressed herein do not necessarily reflect those of CRS.