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SUPREME COURT LIMITS FEDERAL WETLANDS REGULATIONS

State and federal “wetlands” regulations are some of the most unfair and confiscatory land use regulations.  These regulations virtually prohibit development on wetlands -- which are areas that are merely damp (not actually ponded)  a few weeks during the growing season and have certain kinds of soil and plant growth.   The are often called “damp depressions.”  The dampness could result from natural causes or artificial, such as run-off from a highway or neighbor’s land.   The wetlands may be located in the middle of a field wholly unrelated to a river, stream or lake.

Worse yet, state and local regulators are imposing protective buffers around wetlands, which further restricts what a landowner can do with his land.

No compensation whatsoever is being paid to the landowners for the loss of use and value they suffer.
 
On January 9, 2001, the U.S. Supreme Court provided some welcome relief to landowners from federal wetlands regulations.  The court held that the U.S. Army Corps of Engineers misused its authority over “navigable” waters when it adopted regulations to prevent use of wetlands or waters that have no relationship with navigable waters.  These regulations imposed very restrictive controls on roughly 100 million acres across the country.

The Corps tried to justify such controls, saying “interstate commerce” is affected (because such lands may provide habitat for migratory birds that cross state lines).

The court disagreed with the Corps, finding that it exceeded its authority.  The case, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, arose in the state of Illinois and is referred to as the SWANNC case.

The new decision leaves any control of “isolated” wetlands and non-navigable waters to state and local government.  Oregon wetlands regulations, which are about the same as the federal regulations that have been outlawed, will stay in effect.  However, the decision paves the way for landowners in Oregon to make claims under Measure 7 for losses from wetlands regulations when Measure 7 becomes effective -- so long as federal wetlands regulations were in effect, it would be difficult for a landowner to establish a loss based on state regulations.

Another encouraging result of the U.S. Supreme Court’s decision, it put all federal regulators on notice that the court will clamp down on attempts to interpret legal mandates in ways that expand authority beyond what the Congress actually authorized.  This could be very helpful in challenges to what federal agencies are doing under the Endangered Species Act, such as National Marine Fisheries Service’s questionable interpretation of the Act it used to justify listing of certain salmon as “threatened.”