Honors Thesis
Jared N. Fertman

Abstract:
Despite the widely recognized and critical functions that wetlands provide, these habitats are not currently, and have never been, adequately protected by federal law. This insufficient protection has resulted in the destruction of more than half of the wetlands originally found in the conterminous United States. Through an examination of the legislative history of water resource protection and relevant wetlands case law, this honors thesis will display the inherent inadequacies in wetlands protection measures. In three separate cases, the courts have determined that wetlands regulations are flawed by (1) a required addition of material to initiate regulability, (2) a requisite link to navigation, and (3) an enforcement design that has been construed as a regulatory taking, in violation of the Fifth Amendment. The environmental implications of these three cases, as well as the legal basis for each holding, show that federal laws cannot adequately protect wetlands, nor can they be accurately applied in the present legal context. To remedy this, a new “Wetlands Protection Act” will be advocated as the solution most amenable to environmental and legal concerns.