What About Takings?
The Issue: When does a government action
affecting private property amount to a "taking," and what are
the takings implications of wetland regulation?
The Fifth Amendment to the Constitution of the United States of America
No person shall...be deprived of...property without due process of law,
nor shall private property be taken for public use, without just compensation.
Legal Background
The concept of takings comes from the Fifth Amendment (see box below),
which prohibits the taking of private property by the government for a
public use without payment of just compensation. This fact sheet briefly
explores the issue of takings as it relates to wetlands regulation.
The Supreme Court and lower courts have established a body of law used
to determine when government actions affecting use of private property
amount to a "taking" of the property by the government. When
private property is "taken" by the government, the property
owner must be fairly compensated.
Initially, the courts recognized takings claims based on government actions
that resulted in a physical seizure or occupation of private property.
The courts subsequently ruled that, in certain limited circumstances,
govern ment regulation affecting private property also may amount to a
taking.
In reviewing these "regulatory" takings cases, the courts generally
apply a balancing test; they examine the character of the government's
action and its effect on the property's economic value. Government
actions for the purpose of protecting public health and safety, including
many types of actions for environmental protection, generally will not
constitute takings. The courts also look at the extent to which the government's
action interferes with the reasonable, investment-backed expectations
of the property owner.
In Lucas v. South Carolina Coastal Council (1992), the U.S. Supreme Court
ruled that a State regulation that deprives a property owner of all economically
beneficial use of that property can be a taking. The court further clarified,
however, that a regulation is not a taking if it is consistent with "restrictions
that background principles of the State's law of property and nuisance
already placed upon ownership." As an example of "background
principles," the court referred to the right of government to prevent
flooding of others' property.
Dolan v. City of Tigard (1994), a more recent Supreme Court takings case,
involved a requirement by the City of Tigard in Oregon that, to prevent
flooding and traffic congestion, a business owner seeking to expand substantially
onto property adjacent to a floodplain create a public greenway and bike
path from private land. The Supreme Court ruled that the City’s
requirement would be a taking if the City did not show that there was
a Areasonable relationship@ between the creation of the greenway and bike
path and the impact of the development. As compared to the facts in Dolan,
the Clean Water Act Section 404 program generally does not require property
owners to provide public access across or along their property.
Current Status
The presence of wetlands does not mean that a property owner cannot undertake
any activity on the property. In fact, wetlands regulation under Section
404 does not necessarily even result in restricting the use of a site.
Many activities are either not regulated at all, explicitly exempted from
regulation, or authorized under general permits.
Moreover, in situations where individual permits are required, the Federal
agencies can work with permit applicants to design projects that meet
the requirements of the law and protect the environment and public safety,
while accomplishing the legitimate individual objectives and protecting
the property rights of the applicant. Overall, more than 95% of all projects
receive Section 404 authorization.
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