Is compensatory wetland mitigation the smoking gun of a constitutional taking?

Of the twelve disciples, by my count, at least seven were fishermen. I believe Jesus chose fishermen because they were all too familiar with what we call “real.” Granted, there was plenty of “real” in Jesus’ time, but the “real” associated with the men of the sea is a concept that has endured the ages. They understood the “bail like crazy or we’re all going to drown” kind of real. Their lives depended on accurately assessing every situation because, often, their lives depended on it.

Jesus knew people of the sea understood the concept of absolute truth. An ocean wave has a peculiar indifference as to who and what it smacks down. There is no better place to learn absolute truth than in the uncompromising, unyielding, physical environment.

We need truth in so many areas today that even the thought of starting such a list makes me tired. But foundational to our way of life in America is a document we mentally assent to being foundational to our collective truth, the Constitution. Wetland regulation is just one of many things that, over the past 50 years, have decimated our Constitution, particularly the Fifth Amendment. Land designated as wetlands is taken without compensating the rightful owners.

Whenever someone would bring up the Constitution in my wetland regulatory days, the other regulators listening would do a collective eye-roll and mentally assign that person loony status. Loons were not only to be regulated but educated. The Constitution was meaningless to most regulators, being nothing more than a vague concept that was once valid, having served a specific time and purpose.

Article 5 of the Constitution indicates private property taken for public use requires just compensation. But citizen lawsuits, have found that if a property has any remaining value, after application of the regulation or constraint, a regulatory taking has not occurred. The court has ruled that even if a regulation removes 99% of the land value, it is still not considered a constitutional taking.

Predictably, after court rulings like this, acres and acres of privately owned land were requisitioned by the government for one “necessary” public use or another. It’s almost like the various agencies tried to outdo each other in controlling land for different government purposes. It is an immutable economic principle that anything free will be overused. The old country saying, “If you can get the milk for free, then why buy the cow?” applies, especially when government takes the milk by force.

A fly in the wetland regulation ointment became apparent when the agencies crank down the allowable thresholds for granting permits. This started to affect otherwise reasonable, necessary, and even essential projects. With no way to resolve the associated wetland losses, permit applications stalled and permits began to be denied. Without an outlet to relieve the pressure, the “no net loss” policy of wetland impacts would have been too inflexible and impractical to sustain any level of political favor.

Wetlands, most often, are inconveniently located, and the ability to move a wetland, from here to there, was eventually facilitated with the idea of compensatory wetland mitigation. Compensatory wetland mitigation was the resolution to an unsustainable political problem for the agencies and the process was formally institutionalized in the early 1990s.

Compensatory wetland mitigation is the process by which a landowner, permitted to impact their wetlands, compensates for the loss, by providing alternative wetlands. Most often, in North Carolina, this is accomplished by paying a fee into the NC Mitigation Services program or to an approved wetland mitigation bank. A great idea, maybe, but does this policy overplay their hand with the Constitution?

There are numerous reviews out there regarding wetland mitigation case law. Attorneys, God bless them, feel it is their obligation to take a case review analysis and use it to lose everyone in the weeds. They discuss if the mitigation requirement was an “essential nexus of permit conditions to a legitimate state interest” or whether the process of “avoid-minimize-compensate” was met in order for the permittee to qualify for “in-lieu-fee” wetland mitigation. Then there is page after page regarding the merits of the Dolan and Nollan cases and their applicability to whatever is the issue at hand. Case law analysis is sometimes like trying to build a house with rotten wood.

Because of case law, particularly bad case law, attorneys sometimes lose both their common sense and sense of right and wrong. But have you been paying attention? Even the government refers to this as compensatory wetland mitigation! How does the government get compensated for something they never bought? Aren’t we turning the Constitution on its head when private citizens pay the government instead of the government paying them? After all, who has the Constitutional right, the government or the people?

So, the question is out there. Is compensatory wetland mitigation the smoking gun of a Constitutional taking?

Nelson Paul is a real estate agent, former NC Coastal regulator, inventor, husband, and father of four, and a grandfather of seven.