In June 1992, the United States Supreme Court decided Lucas v. South Carolina Coastal Council. The case involved a claim for compensation against the State of South Carolina by a landowner who was prohibited from placing structures on two of his beachfront lots. The Court declared that the landowners must be compensated when government regulations deprive them of all economically beneficial or productive uses of their property unless the proscribed uses were not permitted as part of their original titles.
Although some legal commentators have praised the Lucas decision, others have strongly condemned it. A common criticism of Lucas is that will have a detrimental effect on wetland protection programs. Indeed, the Lucas Court itself observed that wetland regulations might give rise to takings claims by affected landowners. This Article, however, takes a somewhat more benign view of the Lucas decision. No doubt Lucas will force governments to compensate property owners when wetland regulations strip the land of all economic value; but in such cases, the government ought to pay. On the other hand, Lucas does not pose much of a threat to wetland protection regulations that recognize the interests of landowners as well as the needs of the environment.
Part I of this Article looks at the nature of wetlands, their environmental and social value, and the extent to which they are being harmed by human activities. Part II examines existing wetland protection statutes, with particular emphasis on the federal dredge and fill permit program administered by the U.S. Army Corps of Engineers. Part III explores takings law prior to Lucas and discusses some representative cases involving wetland protection regulations. Part IV evaluates the Lucas decision and some post-Lucas cases involving wetlands. Finally, Part V analyzes the number of issues raised by Lucas and its progeny. Based on a preliminary assessment of these cases, the author concludes that Lucas will not adversely affect the enforcement of most wetland protection regulations.
Richard C. Ausness, Regulatory Takings and Wetland Protection in the Post-Lucas Era, 30 Land & Water L. Rev. 349 (1995).