Wetlands Protection Post-Lucas: Implications of the Public Trust Doctrine on Takings Analysis
By Paul Sarahan
INTRODUCTION
Over the last 200 years, more than one-half of the wetlands resources present in the lower forty-eight states of the United States have been converted to other uses. The U.S. Fish and Wildlife Service has estimated that, in the colonial era, the continental United States included 215 million acres of wetlands. According to the latest estimates, approximately 95 million acres of these wetlands remain. The rate of conversion has slowed recently to a yearly loss of 290,000 acres of wetlands. Such a rate, although improved, still represents an unacceptable destruction of this country's natural resources. Further, the quality of much of the remaining wetlands acreage has declined due to pollution and development.
For much of the country's history, the benefits resulting from our wetlands resources have not been properly appreciated because wetlands benefits are widely dispersed among various users. At the same time, wetlands have been viewed by many as mere wastelands, which are economically attractive for conversion to industrial, agricultural and residential uses. As a result, much of the nation's wetlands resources have been destroyed and converted to other, more directly profitable uses. It has only been within the last twenty years that the nation has begun to recognize the ecological importance, and the corresponding economic value, of wetlands.
Wetlands perform a variety of ecological functions. These functions include: protecting water quality by filtering sediments and pollutants out of the water and by removing excess nutrients; regulating local hydrology; preventing flooding by collecting and storing runoff from adjacent land; preventing erosion; providing food and serving as spawning and rearing grounds for two-thirds of the commercially harvested fish in the United States; serving as home to one-third of the flora and fauna on the federal registry of endangered and threatened species; serving as habitat for migratory waterfowl and amphibian and aquatic life; and providing potential drinking water supplies.
State and federal governments have responded with a series of programs designed, at least in part, to protect the wetlands resources within their respective jurisdictions. At the state level, governments have utilized various approaches to protect the wetlands resources within their jurisdictions. At the federal level, wetlands protection is effected primarily through the Rivers and Harbors Appropriation Act of 1899 (the “River and Harbors Act”) and the Clean Water Act. Of lesser statutory significance, at least to date, is the Coastal Zone Management Act (CZMA). The CZMA provides federal funding for state wetlands programs in most coastal states, but does not provide for direct federal action to protect endangered wetlands. Other federal laws affecting wetlands include the Sodbuster and Swampbuster provisions of the Food Security Act of 1985.
In light of the important ecological role that the nation's wetlands play and the diminishing nature of this resource, further state and federal regulation in this area is desirable. However, the United States Supreme Court's most recent holdings in regulatory takings cases present a significant hurdle to the effectiveness of such regulation. The failure to clear the Court's hurdle will likely result in a requirement that the government must pay just compensation to the aggrieved landowner. Broadening the definition of compensable takings would have serious consequences on the environment. At a time when serious budgetary constraints hamper government action, any additional monetary burdens are likely to prevent governments from regulating to protect their natural resources, including wetlands. Thus, further environmental degradation will likely occur.
This Article suggests that states can continue to regulate their critical wetlands resources, even after the Supreme Court's ruling inLucas v. South Carolina Coastal Council, through the use of the public trust doctrine. The theory of public trust is a long-held doctrine of property law under which the state holds certain property in trust for the public. “Critical wetlands,” as used in this Article, are those wetlands identified and designated by the state, after a statewide ecological survey, as those most highly valued from an environmental and economic perspective. Once the state's wetlands are so prioritized, the state must direct its financial resources in the most effective manner to protect its most critical wetlands.
This Article sets forth the judicial pitfalls that states must avoid in drafting regulations affecting the nation's critical wetlands, and the potential approaches to wetlands regulation that will avoid these pitfalls. Through such approaches, states can protect their respective critical wetlands in a cost-efficient manner.
Part II of this Article discusses the Court's regulatory takings jurisprudence, including the United States Supreme Court's 1987 trilogy of takings cases, and its 1992 holding in Lucas v. South Carolina Coastal Council. Part II also discusses the factors which the Court has generally considered in determining whether a regulation “goes too far” so as to constitute a taking, and analyzes the Court's apparent shift toward providing greater protection for landowners affected by governmental regulation. Part II proceeds to analyze the effect of the Court's rulings on state efforts to protect critical wetlands and concludes with the suggestion that the public trust doctrine will act as an important avenue for further state wetlands regulation.
Part III of this Article discusses the history of the public trust doctrine which, as applied in the United States, has its roots in Roman law and English common law. Part III continues with an analysis of the doctrine's scope and its application to both navigable and tidally-affected waters.
Part IV of the Article addresses the impact of the doctrine on wetlands takings challenges given the Court's holding in Lucas. This Part first discusses the regulation of wetlands located in public trust waters. Because the property owner holds title to these wetlands subservient to the government's right to bar all private use of the property, government regulation of these wetlands will not result in a taking under the Lucas analysis.
Part IV then addresses the takings implications of regulation of wetlands adjacent to public trust lands. The Article argues that, because of the hydrological and ecological interrelationship of adjacent wetlands and other waters, and the role these wetlands play in the survival of critical ecosystems, non-compensable regulation is justified under the multi-factored takings analysis of Penn Central Transportation Co. v. New York City when it is premised on the public trust doctrine, and buttressed by scientific data and the state's common law of public nuisance.
Finally, Part IV of the Article addresses the impact of Lucas on the protection of isolated wetlands. First, this Part discusses the various ecological functions performed by isolated wetlands and the hydrological connections between these wetlands and the groundwater, other wetlands, lakes and streams. Second, this Part analyzes three categories of isolated wetlands: (1) hydrologically-connected isolated wetlands; (2) hydrologically-isolated wetlands which perform beneficial ecological functions; and (3) hydrologically-isolated wetlands which perform no beneficial ecological functions.
This Article argues that regulation of the first category of isolated wetlands should be non-compensable even after Lucas, through an analysis similar to that applied in the context of adjacent wetlands. Next, the Article argues that regulation of the second category of isolated wetlands should also be non-compensable, based on an analysis of the historical scope and purposes of the public trust doctrine and the increasing appreciation of the inter-connectedness of seemingly disparate activities and resources. Finally, the Article asserts that states should refrain from the regulation of the third category of isolated wetlands because it is unlikely a state could show a sufficient public interest, grounded in its property or public nuisance law, to meet the Lucas requirements necessary to avoid a compensable taking.
This Article concludes that the public trust doctrine is a powerful tool for a state seeking to protect its critical wetlands to an extent beyond the protection provided under federal programs. This Article argues that a state can use the doctrine as a foundation for the regulation of most state wetlands and that this foundation should be supported by scientific data and the state's public nuisance jurisprudence. Through such an approach, the state can protect its critical wetlands resources without incurring takings liability, even after the Court's ruling in Lucas v. South Carolina Coastal Council.
Over the last 200 years, more than one-half of the wetlands resources present in the lower forty-eight states of the United States have been converted to other uses. The U.S. Fish and Wildlife Service has estimated that, in the colonial era, the continental United States included 215 million acres of wetlands. According to the latest estimates, approximately 95 million acres of these wetlands remain. The rate of conversion has slowed recently to a yearly loss of 290,000 acres of wetlands. Such a rate, although improved, still represents an unacceptable destruction of this country's natural resources. Further, the quality of much of the remaining wetlands acreage has declined due to pollution and development.
For much of the country's history, the benefits resulting from our wetlands resources have not been properly appreciated because wetlands benefits are widely dispersed among various users. At the same time, wetlands have been viewed by many as mere wastelands, which are economically attractive for conversion to industrial, agricultural and residential uses. As a result, much of the nation's wetlands resources have been destroyed and converted to other, more directly profitable uses. It has only been within the last twenty years that the nation has begun to recognize the ecological importance, and the corresponding economic value, of wetlands.
Wetlands perform a variety of ecological functions. These functions include: protecting water quality by filtering sediments and pollutants out of the water and by removing excess nutrients; regulating local hydrology; preventing flooding by collecting and storing runoff from adjacent land; preventing erosion; providing food and serving as spawning and rearing grounds for two-thirds of the commercially harvested fish in the United States; serving as home to one-third of the flora and fauna on the federal registry of endangered and threatened species; serving as habitat for migratory waterfowl and amphibian and aquatic life; and providing potential drinking water supplies.
State and federal governments have responded with a series of programs designed, at least in part, to protect the wetlands resources within their respective jurisdictions. At the state level, governments have utilized various approaches to protect the wetlands resources within their jurisdictions. At the federal level, wetlands protection is effected primarily through the Rivers and Harbors Appropriation Act of 1899 (the “River and Harbors Act”) and the Clean Water Act. Of lesser statutory significance, at least to date, is the Coastal Zone Management Act (CZMA). The CZMA provides federal funding for state wetlands programs in most coastal states, but does not provide for direct federal action to protect endangered wetlands. Other federal laws affecting wetlands include the Sodbuster and Swampbuster provisions of the Food Security Act of 1985.
In light of the important ecological role that the nation's wetlands play and the diminishing nature of this resource, further state and federal regulation in this area is desirable. However, the United States Supreme Court's most recent holdings in regulatory takings cases present a significant hurdle to the effectiveness of such regulation. The failure to clear the Court's hurdle will likely result in a requirement that the government must pay just compensation to the aggrieved landowner. Broadening the definition of compensable takings would have serious consequences on the environment. At a time when serious budgetary constraints hamper government action, any additional monetary burdens are likely to prevent governments from regulating to protect their natural resources, including wetlands. Thus, further environmental degradation will likely occur.
This Article suggests that states can continue to regulate their critical wetlands resources, even after the Supreme Court's ruling inLucas v. South Carolina Coastal Council, through the use of the public trust doctrine. The theory of public trust is a long-held doctrine of property law under which the state holds certain property in trust for the public. “Critical wetlands,” as used in this Article, are those wetlands identified and designated by the state, after a statewide ecological survey, as those most highly valued from an environmental and economic perspective. Once the state's wetlands are so prioritized, the state must direct its financial resources in the most effective manner to protect its most critical wetlands.
This Article sets forth the judicial pitfalls that states must avoid in drafting regulations affecting the nation's critical wetlands, and the potential approaches to wetlands regulation that will avoid these pitfalls. Through such approaches, states can protect their respective critical wetlands in a cost-efficient manner.
Part II of this Article discusses the Court's regulatory takings jurisprudence, including the United States Supreme Court's 1987 trilogy of takings cases, and its 1992 holding in Lucas v. South Carolina Coastal Council. Part II also discusses the factors which the Court has generally considered in determining whether a regulation “goes too far” so as to constitute a taking, and analyzes the Court's apparent shift toward providing greater protection for landowners affected by governmental regulation. Part II proceeds to analyze the effect of the Court's rulings on state efforts to protect critical wetlands and concludes with the suggestion that the public trust doctrine will act as an important avenue for further state wetlands regulation.
Part III of this Article discusses the history of the public trust doctrine which, as applied in the United States, has its roots in Roman law and English common law. Part III continues with an analysis of the doctrine's scope and its application to both navigable and tidally-affected waters.
Part IV of the Article addresses the impact of the doctrine on wetlands takings challenges given the Court's holding in Lucas. This Part first discusses the regulation of wetlands located in public trust waters. Because the property owner holds title to these wetlands subservient to the government's right to bar all private use of the property, government regulation of these wetlands will not result in a taking under the Lucas analysis.
Part IV then addresses the takings implications of regulation of wetlands adjacent to public trust lands. The Article argues that, because of the hydrological and ecological interrelationship of adjacent wetlands and other waters, and the role these wetlands play in the survival of critical ecosystems, non-compensable regulation is justified under the multi-factored takings analysis of Penn Central Transportation Co. v. New York City when it is premised on the public trust doctrine, and buttressed by scientific data and the state's common law of public nuisance.
Finally, Part IV of the Article addresses the impact of Lucas on the protection of isolated wetlands. First, this Part discusses the various ecological functions performed by isolated wetlands and the hydrological connections between these wetlands and the groundwater, other wetlands, lakes and streams. Second, this Part analyzes three categories of isolated wetlands: (1) hydrologically-connected isolated wetlands; (2) hydrologically-isolated wetlands which perform beneficial ecological functions; and (3) hydrologically-isolated wetlands which perform no beneficial ecological functions.
This Article argues that regulation of the first category of isolated wetlands should be non-compensable even after Lucas, through an analysis similar to that applied in the context of adjacent wetlands. Next, the Article argues that regulation of the second category of isolated wetlands should also be non-compensable, based on an analysis of the historical scope and purposes of the public trust doctrine and the increasing appreciation of the inter-connectedness of seemingly disparate activities and resources. Finally, the Article asserts that states should refrain from the regulation of the third category of isolated wetlands because it is unlikely a state could show a sufficient public interest, grounded in its property or public nuisance law, to meet the Lucas requirements necessary to avoid a compensable taking.
This Article concludes that the public trust doctrine is a powerful tool for a state seeking to protect its critical wetlands to an extent beyond the protection provided under federal programs. This Article argues that a state can use the doctrine as a foundation for the regulation of most state wetlands and that this foundation should be supported by scientific data and the state's public nuisance jurisprudence. Through such an approach, the state can protect its critical wetlands resources without incurring takings liability, even after the Court's ruling in Lucas v. South Carolina Coastal Council.