United State*
Environmental Protection
Agency
Office of Water (WH-556F).
Office of Wetlands, Oceans.
and Watersheds (A-104 F)
EPA843-F-93-001P
March 1993
WETLANDS FACT SHEET #16
What About Takings?
The Issue: When does a government action affecting private
property amount to a "taking,,'1 and what are the takings
implication* of wetlands regulation?
Background
The Fifth Amendment prohibits the tak-
ing of private property by the government for a
public use without payment of just compensa-
tion. A body of law has been established by the
Supreme Court (and
lower courts) that is
used to determine
when government ac-
tions affecting use of
private property
amount to a "taking"
of that property by the
government. When
private property is
"taken" by the gov-
ernment, the prop-
erty owner must be
fairly compensated.
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.
Initially, the courts recognized takings
claims based on governmental action that re-
sulted in a physical seizure or occupation of
private property. Thecourtssubsequentlyruled
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, and examine the character of the
government's action and its effect on the
property's economic value. Government ac-
tions 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 inter-
feres with the reasonable, investment-backed
expectations of the property owner.
In the recent T.uraa decision (Lucas v.
South Carolina Coastal Council), the U. S. Su-
preme Court ruled that a State regulation that
deprives a property owner of §11 economically
beneficial use of that property can be a taking.
However, even then a regulation will not result
in a taking if the regulation is consistent with
"restrictions that background principles of the
State's law of property
and nuisance already
place upon land own-
ership." Some com-
mentators have stated
that the Lucas ruling
is not likely to have a
significant effect on
environmental regula-
tion, because it is ex-
plicitly limited to
those relatively rare
situations where the
government action de-
nies iU economically beneficial use of the prop-
erty.
Current Status
The presence of wetlands does not mean
that a property owner cannot undertake any
activity on the property. In fact, wetlands regu-
lation under Section 404 does not necessarily
even result in a restriction on use of the site. For
example, many activities are either not regu-
lated at all, explicitly exempted from regulation,
or authorized under general permits. Moreover,
in situations where individual permits are re-
quired, the Federal agencies can work with per-
mit applicants to design projects that meet the
requirements of the law and protect the environ-
ment and public safety, while accomplishing the
legitimate individual objectives and protecting
the property rights of the applicant. Overall,
more than 95 percent of all projects are autho-
rized.
For more information, contact the EPA Wetlands Hotline at 1-800-832-7828 *
* contractor operated
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