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 should protect wetlands on its property, and let the states protect theirs."

With the Rapanos and the Carabell decisions, the Supreme Court placed further restraints upon the federal government's ability to limit individuals' use of their property in order to protect wetlands. However, just what those limits are is still unclear. Justice Scalia's plurality opinion provides meaningful restrictions on federal authority, but Justice Kennedy's concurring opinion leaves the extent of federal authority just as unsettled as before these cases. The federal government has a legitimate role in protecting some wetlands, but the Clean Water Act is not the only or the most effective way to protect wetlands over which it has no legitimate authority. Until the EPA and the Corps provide clearer rules, and Congress acts to respect the states' role in protecting wetlands and to preserve private property rights, the courts should continue to narrow the scope of the CWA. By doing so, the judiciary will respect states' authority over water quality and wetlands within their borders and encourage individual efforts to promote conservation, while upholding constitutionally protected property rights.

NOTE: Nothing written here should be construed as necessarily reflecting the views of the National Center for Policy Analysis or as an attempt to aid or hinder the passage of any bill before Congress.

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