ELR Citation: ELR 20168
No(s). 98-897 L (Fed. Cir. Aug 17, 2006)

The court dismisses a farmer's takings claim against the U.S. government for requiring him to remediate wetlands on his property. Prior to his ownership of the farm, portions of his land were drained with the assistance of the U.S. Department of Agriculture. After he acquired the property from his parents, the farmer attempted to fill and drain wetlands on the property. The U.S. Environmental Protection Agency filed an enforcement suit against him, and the parties entered into a consent decree that required the farmer to restore the affected property to its pre-1985 wetlands state. The farmer then filed the instant action under the Fifth Amendment. The government's action, however, does not result in a regulatory taking. The limitations associated with the consent decree and the underlying requirements of the Clean Water Act result only in a noncompensable diminution in the value of the parcel as a whole and allow the farmer to realize to a significant degree his reasonable investment-backed expectations. Nor does the government effectuate a physical taking. A consent decree cannot give rise to a physical taking, there is no evidence that flooding on his property was the result of the restoration work, and the consent decree did not create a conservation easement on his property.

[Prior decisions in this litigation are published at 31 ELR 20300 and 32 ELR 20499.]