Protecting Property Rights, Preserving Federalism and Saving Wetlands

Policy Reports | Energy and Natural Resources

No. 291
Wednesday, October 25, 2006
by Daniel R. Simmons, J.D. and H. Sterling Burnett, Ph.D.


"The federal government claims authority over almost all wetlands."

Over more than three decades, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the Corps) have stretched the regulatory scope of the Clean Water Act so far they now claim authority over almost all waters in the United States. They have pursued civil and criminal prosecutions for small, technical violations of the Act in order to intimidate property owners and developers into compliance, although the complexity of the regulatory process and the unsettled state of the law makes compliance difficult. In the process, they have arguably stepped on the constitutional prerogatives of the states to control land use within their borders and the rights of individuals to control their property.

Some recent federal court rulings have limited the federal government's power over isolated wetlands, but different appellate courts have reached contradictory decisions concerning precisely what the limits are. The U.S. Supreme Court missed a recent opportunity to provide clear answers on these unresolved issues in its decision in two cases: Rapanos v. United States and Carabell v. United States Army Corps of Engineers. Many analysts had hoped the Supreme Court would draw a bright line to give landowners, federal regulators and the states clear guidance about what counts as protected wetlands and what actions can be taken to protect and/or develop them. In these particular cases, the question was whether or not the Supreme Court would limit the regulatory authority of the Corps and EPA by redefining the scope of the Clean Water Act.

"Wetlands have been defined to include prairie potholes, ditches and even soggy ground."

Unfortunately, on June 19, 2006, in a narrow 5-4 decision, the Supreme Court ruled only that the EPA and the Corps may have misinterpreted the federal government's power to regulate or protect wetlands under the Act. The decision only further clouded the issue, leaving lower courts to set limits on a case-by-case basis, at least in the short term.

On the positive side, the ruling highlights the need for two reforms of the Clean Water Act: 1) to properly respect individual property rights and the legitimate power and authority of each state over lands lying solely within its jurisdiction, and 2) to foster incentives to promote and expand wetlands.

This paper first briefly examines the legislative and judicial history of government efforts to regulate wetland use. Second, it proposes reforms which would arguably limit the loss of ecologically valuable wetlands and hopefully foster their (re)creation, while respecting the constitutionally protected individual right to develop one's property with a minimum of government interference.

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