General Approval for Homeowners Nationwide In 1995, an approval process was set up that allows landowners to affect up to one-half acre of non tid ii wetlands for construction of single-family homes without applying for an individual Section 404 permit. This action eliminates unnecessary burden for families trying to build or add on to an existing home in wetlands on their property. The general permit also covers common features such as garages, driveways, storage sheds. yards. and septic tanks. This new general permit joins hundreds of others under which tens of thousands of activities in wetlands with minor impacts are rapidly processed each year, without an individual application and often without any required notification. Streamline Processing for Private Landowners The Clinton Administration has simplified the process for landowners proposing activities in wetlands on their property. Landowners who wish to expand or construct homes, build farm structures. or expand small businesses when those activities will affect less than two acres of wetlands. will no longer have to consider alterative locations to avoid wetland impacts on-site. For these activities. landowners need only consider opportunities that allow the project to proceed while reducing environmental impacts. The Clinton Administration also recognizes that all wetlands do not have the same value and. therefore. should not be regulated uniformly. The agencies have been directed to ensure that the level of review of projects proposed in wetlands is consistent with anticipated environmental impacts. Small projects with minor impacts will now require far less review than larger projects with more substantial impacts and those affecting high value wetlands. The result is reduced cost. less delay, and greater certainty for private landowners seeking permits. Empower State and Local Governments The Clinton Administration agrees that wetlands issues are often most effectively addressed at State. local, and Tribui levels. As a result. federal agencies are working with State. local, and Tribal governments to take a greater role in protecting and managing their wetland resources. Efforts to increase State participation have been successful. and in 1994. New Jersey became the second State to formally assume responsibility for the Section 404 permit program. States are also being encouraged to develop State Programmatic General Permits (SPGPs) to reduce duplication between State and Federal programs. Nationally, thousands of activities are processed by States rather than the Federal government under this mechanism. This tool offers an alternative to those States wishing to take a more active role in wetlands protection without taking on the entire permit program. Fourteen States have currently adopted SPGPs. To enhance these efforts. in May 1995. Federal agencies hosted a two-day workshop with the States on the development of SPGPs. The State Wetland Grant Program continues to be very effective in helping States and Tribes develop comprehensive wetland programs. The State Grant Program grew from $1 million in FY90 to $15. million in FY95. It has funded the development and implementation of State Wetland Conservation Plans, Watershed Planning Projects. State assumption assistance and wetland water quality standards. Simplify Mitigation Through "Banking" To improve the effectiveness of wetlands mitigation efforts and inject more flexibility into the regulatory process. the Clinton Administration has taken steps to encourage the use of wetlands mitigation banks. "Mitigation" is the practice of off-setting. to the extent practicable. authorized wetlands losses through the restoration. creation. or enhancement of wetlands. Banks give greater flexibility to permit applicants by providing opportunities for wedlands mitigation more easily. at reduced cost. and with a greater certainty of success. A combination of larger scale, improved siting. and professional design and operation increase the likelihood of success for mitigation undertaken by banks. benefitting the environment as well. These latest efforts will speed up the approval process for proposed banks. Progress has already been made since August 1993, with the doubling of the number of banks from 100 to 200. ACTIONS TAKEN TO ENHANCE EFFECTIVENESS Incentives for Farmers In an effort to provide economic assistance to farmers to restore and preserve wetlands on their property, the Wetlands Reserve Program (WRP) was expanded to cover all 50 states. The WRP assists farmers interested in restoring wetlands on their property by offering cash payments for placing conservation easements on their wetland property, as well as cost-sharing assistance for restoration work. Since 1990. this highly successful program has enrolled 125.000 acres of wetlands and associated buffer areas for restoration by approximately 650 farmers. With 1995 funds. USDA plans to enroll an additional 118.000 acres of wetlands in the program. Clarity Regulated Activities In an effort to improve protection of wetlands and increase fairness. the Clinton Administration closed a loophole that had previously allowed the destruction of thousands of acres of valuable wetlands each year from those engaging in actions involving small discharges of dredged or fill material that result in significant environmental degradation. This action clarified that regardless of the complicated and typically expensive methods being used by some to avoid regulation. activities that destroy wedands such as excavation and landclearing do require a permit. This action does, however. explicitly exclude activities with only inconsequential environmental effects a common sense. risk-based approach to regulating Reduced "Ner" Losses Reduced Wetlands Loss Rates (in Acres) Progress is being made to improve environmental protection. According to the most recent estimates on the rate of wetlands loss. from 1982 to 1992, approximately 70,000 to 90,000 acres of wetlands were lost each year on non-federal lands. That figure demonstrates improvement since the 1950s to 1970s when approximately 458,000 acres of wetlands were lost annually nationwide, and since the 1970s to 1980s when almost 290,000 acres of wetlands were lost per year. These figures reflect the effectiveness of a combination of programs which are reducing losses and fostering wetlands restoration, including the Clean Water Act, Swampbuster. on-going public and private wetlands restoration programs, and active State, local, and private wetlands protection efforts. By continuing these efforts, the goal of "no net loss" is achievable. 1950s-1970s 1970s-1980s 1990s Expand Public Outreach Efforts The toll-free Wetlands Information Hotline has provided information about wetlands functions, protection. and regulation to approximately 40,000 callers -- including students, teachers, farmers, landowners. State and local government officials, and consultants -- since it was established in 1991. In addition, outreach to landowners has been expanded to identify and implement practical and costeffective opportunities for protection of wetlands on private lands. Nonprofit organizations, States, local agencies, and landowners have worked with the Clinton Administration to address the needs of private landowners. SUMMARY The Clinton Administration is committed to improving wetlands programs, making them more fair and flexible for landowners and more effective. Through the August 1993 Administration Wetlands Plan. we are seeing results. Programs are working better and burdens on the public have been reduced. Additional improvements can and will be made as the other initiatives in the Administration Wetlands Plan are completed. Revised 5/25/95 MEMO ON THE NUISANCE EXCEPTIONS Introduction Both the House-passed and Senate "takings" bills (H.R. 925, S. 605) use a nuisance exception to limit the compensation obligation they establish for government actions that diminish property values. The two bills differ in their specific language. H.R. 925 says "[i]f a use is a nuisance as defined by the law of a State...no compensation shall be made." (sec. 4). S. 605 provides "[n]o compensation shall be required...if the owner's use...is a nuisance as commonly understood and defined by background principles of nuisance and property law, as understood within the State in which the property is situated." (sec. 204 (d) (1)). These are among the most important provisions of the bills, for they define the universe of compensable regulation. Those whose "use is a nuisance" will not be compensated, no matter how extensive the economic burden regulation imposes. Since "nuisance" is a familiar legal term of art, it may seem that a nuisance test would provide a clear test for compensation, and would definitively identify those owners whose activities are undeserving of compensation. Unfortunately, that is not the case. The main reason is that nuisance law is full of restrictive technical requirements, with the result that much harmful conduct that is the subject of modern regulation is not legally a nuisance. In practice, few owners are likely to be denied compensation under these bills, however harmful and unjustified their conduct. A number of illustrative examples are noted below to show the difficulty of proving a use to be a nuisance. The bills also present a variety of other interpretive difficulties that make them anything but "bright line" guides to compensability. For example, is the nuisance exception meant to : H.R. 925 also provides that compensation shall not be paid where the "primary purpose" of the limitation on the use of property is to prevent an identifiable "hazard to public health or safety" or identifiable "damage to specific property other than the property whose use is limited." (sec. 5(a)). What regulations would not trigger the nuisance exception of H.R. 925, but would trigger its hazard or damage exceptions is not clear. 1 require a showing that the activity in question meets the technical standards of state nuisance law (as assumed in the preceding paragraph), or is it enough simply to show that the activity is 'nuisance-like'? If the former, as noted, the exception is very narrow. If the latter, it is very vague and uncertain. There are other interpretive problems. For example, is it enough that the conduct would be a nuisance in some circumstances, though not in the particular circumstances of the case presented (see "Hazardous Waste in California", p. 5)? Is it enough that the conduct had been (or might have been) a nuisance previously, but state nuisance law is deemed preempted by the existence of Federal regulation (see p. 8)? These are only a few of numerous unanswered questions that assure plentiful dispute, confusion, and litigation over the nuisance exception should either H.R. 925 or S. 605 be enacted. It should also be noted at the outset that while the drafters of the bills have appropriated some language from Supreme Court opinions, they have distinctly not adopted the Court's constitutional standard for determining when compensation is due. The Supreme Court has never said that compensation must be paid for value-diminishing regulation unless the conduct in question is a state-law nuisance. For example, the nuisance-oriented standard of the Lucas' case--language from which is picked up in S. 605--was only applied by the Supreme Court to the extreme and rare case where regulation deprives an owner of all economically beneficial use of land. The Senate bill would apply the Lucas language to a far more expansive range of regulation than the Supreme Court has done. Indeed, the Court has not applied a formal nuisance standard at all to most regulation. In its 1987 decision in Keystone Bituminous Coal Ass'n v. DeBenedictis,' the Court said that in determining whether compensation must be paid for a regulation it is not necessary to "weigh with nicety the question whether the [regulated uses] constitute a nuisance according to the common law." Compensation is not required so long as "the State merely restrains uses of property that are tantamount to public nuisances...."5 Over the years, the Court has found the following uses, none of them nuisances at "tantamount to public nuisances" and thus 2 112 S.Ct. 2886 (1992). = 107 S.Ct. 1232 (1987). p. 1244. : p. 1245 (emphasis added). common law, all to be amenable to regulation |