As the Congress takes up reauthorization of the Clean Water Act, we believe it should adhere to national standards and retain oversight over werlands programs. Passing the 404 program back to the states is likely to speed wetlands destruction because the states do not have the resources to implement wetlands oversight adequately. We encourage Congress to design pilot programs to test alternative methods of protecting wetlands, such as mitigation banking or small landowner permit streamlining, but we caution the Congress against radical weakening of an already inadequate national wetlands protection program. The national economic and natural resource values at stake are enormous.

Action in 1995

Clean Water Act reauthorization should include the following compodents:

Wetlands protection and restoration as an explicit goal of the Clean Water Act:

Private property rights, continued from page 1

within the bundle of rights that we expect in this country. People want both the unfettered right to use their land and the right to use and enjoy unpolluted waters. These interests sometimes conflict, and this conflict has been exacerbated by the incerplay of a number of complex factors, including a lack of understanding of wetlands values and the belief by some people that any regulation of wetlands is a constitutional taking.

The hydrological and biological nature of wetlands generally is poorly understood by the people expected to comply with the werlands laws. Many people are not aware of the connections between surface water and groundwater, and the link between the two that wetlands often provide. Similarly, people often are not aware of the economic and ecological importance of wedands in improving water quality, serving as flood control mechanisms, providing habitat for commercial fisheries, and supporting waterfowl and the waterfowl hunding and recreational industry. And people's understanding of the hydrological and biological relationships between wedland and water is light years ahead of most people's understanding of the wedands regulatory program, which is a second reason that the program is under attack

The wetlands regulatory program, established in Section 404

of the Clean Water Act (CWA), is very complex and is not understood by many landowners. Common misunderstandings, such as whether Congress included the word "wedlands" in the CWA (it did in 1977), or whether normal, ongoing farming activity requires a permi. (it does not) create additional controversy.

Another reason that the wetlands debate is so contentious is that it affects directly individuals, not just corporate America. Early environmental regulatory efforts targeted industrial pollutants being belched from smoke stacks, pesticides that threatened the existence of the bald eagle, and raw sewage that flowed freely from America's towns and cities into her lakes, rivers, and streams. The "regulated community" generally included only corporations and municipalities 20 years ago.

In contrast, federal and state laws that prevent the destruction of wetlands impinge on traditional notions of land ownership and use, and as such affect the millions of people in this country who own approximately 75 million acres of wetlands in

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the contiguous United States Stories of real or perceived unreasonableness by federal regulators against the individual are the stories that are fueling the public's concerns.

In a country where property ownership is a fundamental, constitutional right, use of that property unrestricted by federal regulatory requirements is what some landowners are now demanding. Alternatively, they argue that the Takings Clause entitles them to compensation for more chan a minimal reducdon in the value of their property should federal regulations prevent them from engaging in certain activities on their property.

The Takings and Commerce Clauses

In 1791, the Bill of Rights was ratified, including Article V. which provides that "no person shall, among other things, be deprived of certain rights... nor be deprived of life, liberty, or of law; nor shall private property property, without due process be taken for public use without just compensation." The interpretation of this "Takings Clause" determines private property owners' constitutional rights to compensation when the government "takes" their property.

Three years before the Bill of Rights, the Constitution was ratified, providing that the federal judiciary should interpret the Constitution as well as the laws enacted by the U.S. Congress. Until 1922, the Supreme Court generally interpreted Article V to address a physical taking, or permanent occupation of the land. In Pennsylvania Coal v Mahon, the Supreme Court recognized that regulation could be tantamount to a physical taking and justify compensation under the Constitution. Yet in chat case, Chief Justice Oliver Wendell Holmes stated, "Government hardly could go on if to some extent value incident to property could not be diminished without paying for every such change in the general law."

Seventy years later, Justice Antonin Scalia, known as a strong conservative, noted and quoted those same words in Lucas u South Carolina Coastal Commission. In Lucas, the court revisited the regulatory cakings issue and held what the Court had held for seven decades: The regulation of private property must substancially advance legitimate state interests, and that regulation which "takes” all economically beneficial uses of the property enades an aggrieved landowner to compensation. It is this interpretation that property rights advocates generally seek to expand.

While the Constitution gives the courts the responsibility co interpret laws and constitutional issues, the Constitucion gave to Congress the authority to regulate a prescribed list of activities, including "commerce with foreign nations, and among the several states, and with the Indian tribes." The Commerce Clause of the Constitution has been interpreted to give the Congress authority to regulate activities affecting interstate

commerce, which the courts have interpreted to include the regulation of waters used by interstate travelers for public recreation, waters used to irrigate crops sold in interstate commerce, and waters on the flyways of migratory waterfowl. The federal courts also determined that the CWA should be given the broadest constitutional interpretation possible when considering its jurisdiction. It is these interpretations of the CWA and the Constitution itself that have given the federal government the authority to regulate wetlands under the CWA.

Clearly, if the Commerce Clause as interpreted by the courts, or the Fifth Amendment to the Constitution as interpreted by the courts were read without regard for each other or for the ocher provisions of the Constitution, we would have an irreconcilable conflict. In more than 200 years, and under many changing circumstances, however, the courts have struck a balance. That balance has weighed the rights of private property owners with the responsibility of the government to protect public health, safery, and welfare. This has included environ. mencal protection.

Numerous cases have awarded compensation to landowners when they have been denied permits under Section 404 to undertake activities of their choice. Nevertheless, many people and many members of Congress believe that the judicial process is often 100 expensive and lengthy, or that the traditional constitutional protections, as interpreted by the courts, simply do not go far enough. These opinions clearly are the genesis of private property rights proposals now before Congress.

The 104th Congress

The public is dissatisfied with the federal government, and that discontent created a political storm that erupted on November 8, 1994. Not only was a Republican Congress elected, but it was a conservative Republican Congress that settled in Washington on January 4, 1995, prepared to bring to a head the conflict between unrestricted property use, compensation, and wetlands protection regulatory activities.

Several months ago, on September 27, 1994, more than 300 Republican members of Congress and congressional hopefuls stood on the steps of the U.S. capitol and entered into a Contract with America. Most of those same Republicans ascended the capitol steps to take their seats of political power as the majority party in the 104th Congress. They came committed to enacting the Contract, carrying with them the message that the people of this country were ready for a change in Congress and in the way the federal government conducts the people's business. The Contract supports the principles of individual liberry, economic opportunity, limited government, personal

In addition, the Contract provides that within the first 100 days of the 104th Congress. the House Republicans would bring to the floor 10 bills for a voce. Among those bills was the Job Creation and Wage Enhancement Act. which included Title IX. the Private Property Rights Protections and Compensation Act.

People want both the unfettered right to use their land and the right to use unpolluted waters.

With amazing speed. House Republicans have raced through legislative proposals, hearings, and the passage of major pieces of the legislation targeted by the Contract. The Senate, also energized, similarly has moved at a brisk pace. Enactment and implementation of the Contract with America will result in sweeping changes in virtually every aspect of federal regulatory and entitlement programs, from wedlands to welfare.

Private property rights proposals abound on Capical Hill right now. On the first day of the new Congress, four bills were introduced addressing private property rights issues. Several additional bills have been introduced since then.

On the House side.

•H.R. 9 (reintroduced as H.R. 925), the Job Creation and Wage Enhancement Act, provides that a private property owner is encided to receive compensation for a reduction in the value of property if the reduction is 10 percent or greater and is a consequence of "a limitation or an otherwise lawful use of the property imposed by a final agency action." The Act also established an administrative procedure for compensation whereby a private property owner may submit a request for compensation to the head of an agency that took the action. Within 180 days after the receipt of a request for compensation, the head of the agency "shall" say the agency action and offer the property owner compensation. The private property owner has 60 days to accept or reject the offer, and may submit the resolution to arbitration if he or she rejects the offer. Payment for the diminution in value is to be made by the head of an agency to the private property owner based upon his or her acceptance of the agency head's offer, or a decision of the arbies, within 60 days.

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• H.R. 925, the Privace Property Protection Act of 1995, was introduced as a substitute for H.R. 9 by Rep. Charles Canady (R-FL). H.R. 925 originally would have limited the compensation provisions of H.R. 9 to chose actions taken under wetlands protection programs or the Endangered Species Act, and ro those actions that resulted in the reduction of at least one-third of the property value. The Judiciary Committee, however, modified H.R. 925 to return to the provisions of the original H.R. 9.

• H.R. 790, the Private Property Owners' Bill of Rights, introduced by Rep. Billy Tauzin (D-LA), provides for compensation if property value is reduced 50 percent and is the result of federal actions taken under the Endangered Species Act or

dds procection programs.

•M.R. 971, the Homeowners' Empowerment and Protection Ave, Hastroduced by Rep. Ron Wyden (D-OR) and Rep. Wayne Bakwast (R-MD), provides that property owners can seek

mnsation for the decrease in property values caused by hans, such as developers and industry, if the action of another decreased the homeowners' property's value. •BLR. 961, introduced by Rep. Bud Shuster (R-PA), strikes 404 and creates a new program that allows anyone land is classified as a werland of critical significance would make it difficult to develop the land) to seek macion from the United States for any resulting diminuke. The director of the U.S. Fish and Wildlife Service into negociations wich che landowner and make an fir compensation within duree moncha. The landowner the offer, reczin cide to the land as is, or appeal to Court of Federal Claims.

489, the Property Rights Litigation Relief Act, by Rep. Lamar Smith (R-TX), would expand the of certain federal courts to hear takings cases. A dans actions requiring compensation under the Fifth

dhe Senate side, bills that have been introduced include: the Private Property Rights Act of 1995, introduced Rabert Dole (R-KS), requires that all federal agencies private property taking impact analysis before or promulgating any policy, regulation, proposed or related agency action that is likely to result in a

05, the Private Property Rights Restoration Act,

by Sen. Phil Gramm (R-TX), provides for compensaseduction in fair market value of private property if pellanion of a federal statute, regulation, rule, guideline, or victs, limits, or otherwise cakes a right to real property perament action results in a temporary or permanent

MARSENAL WETLANDS NEWSLETTER

diminution of fair market value that amounts to $10,000 or more, or diminishes the affected portion of the real property by 25 percent or more. Jurisdiction to award compensation is in the U.S. Court of Federal Claims, and compensation is to be paid by the agency or agencies responsible for the statute, regulation. rule. guideline, or policy affecting the reduction in fair market value of the property. Notably, this act excludes from the compensation requirement uses of the property that amount to ♪ public nuisance.

⚫S. 135. the Private Property Rights Litigation Relief Act of 1995, introduced by Sen. Orrin Hatch (R-UT), sets out new judicial procedures for compensation of private property owners if state or federal agencies take private properry (including bur not limited to real property and the right to use or receive water.) Taking private property means "any action whereby private property is directly taken as to require compensation under the Fifth Amendment...or under this Act." The property owners shall receive compensation if, among other things, the action diminished che fair market value of the affected portion of the property by 20 percent, or by $10,000. Compensation is not required if the owner's use of the property constitutes a nuisance.

Sen. John Chafee (R-RI). Chairman of the Senate Environment and Public Works Committee, has not introduced any particular legislacion addressing privace property rights, but he has recognized that some property owners have a disproportion. are share of the burden of federal regulations, and suggested that making compensation more easily available, chrough an admini trative settlement process, to small property owners would improve the perception of fairness in environmental regulosio Senator Chafee recognized, however, that current legislative proposals seek to expand the definition of takings and tequire compensation for regulatory activity that the Supreme Court has never interpreted the Constitution to require.

February ushered in lively hearings on H.R. 925, S. 22, and S. 145. In hearings before congressional committees, propanena of the legislation argued that courts have not gone far enough to protect private property, and obtaining compensation through the courts when a regulatory taking has occurred takes too long and is cost prohibitive for most people. Expanding tradizional private property rights protections, proponents argue, will ensure that the government will fairly weigh the costs and benefits of its action and only regulate those things really worth the price. Also, they argue that compensation for the regulation of privase property spreads societal costs across society, instead of imposing the burden on the private property owner.

Those who oppose expanding traditional private property rights by legislation argue that the Takings Clause does not