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Recent State Wetlands Cases: The Continuing Battle Over the Proper Scope of Regulation

June 1976

Citation: ELR 10125

Controversies involving the propriety of regulating activities on privately-owned wetlands and coastal marshes have increasingly supplied grist for the judicial mill in the form of land use and takings cases. Private development of marshes, induced by the attractively low land capital costs, must continually buck governmental regulation fashioned to preserve our remaining wetlands. In the past few years, the resulting decisions have run the gamut, from upholding regulations that allow virtually no use of private marshes to striking down any restrictions on wetlands alterations.

The ecological and economic value of wetlands, both coastal and inland, has only recently received widespread recognition.1 Wetlands are among the most productive of all environmental areas: it has been estimated that one acre of marsh produces 10 tons of organic matter per year, compared with one-and-one-half tons produced by a wheat field of the same size.2 Coastal wetlands also blunt the erosive action of ocean waves and serve as natural water pollution control facilities. Inland wetlands act as flood control basins and groundwater recharge zones. Marshes provide fish-breeding grounds: recent figures indicate that they support two-thirds of the commercially valuable fisheries on the East and Gulf Coasts.3 Despite recent regulatory efforts, however, centuries of neglect have allowed the destruction of nearly 50 percent of the wetlands existing at the time of America's colonization,4 mainly by navigation dredging, filling for residential and commercial development, and agricultural drainage.

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