Coal case: "The general rule at least is, that while property may be 

 regulated to a certain extent, if regulation goes too far it will be 

 recognized as a taking" [2]. 



The most important factors that affect the rule applied in water areas 

 are: (1) the public purpose served by the regulation which might be 

 challenged; (2) competing public interests in the affected property (ease- 

 ments, public trust, navigation servitude); (3) loss of value. None give a 

 firm guide to the constitutional limits of government regulation, but they 

 form the first point of reference. 



Public Purpose 



Regulations for the public protection of wetlands and estuarine areas 

 find their roots in the constitutional right to protect public health, 

 safety and the general welfare, and the commerce power of the Federal 

 government. Early regulations were adopted to prohibit nuisances such as 

 noise, odor or dirt. Nineteenth Century coastal restrictions covered sand 

 and gravel removal that threatened protective natural features. A 

 Massachusetts court asked to review the efforts of Plymouth to protect its 

 harbors, beaches and bars in the 1850's saw a prohibition on gravel removal 

 as a natural and legitimate objective [3]. 



Resource management purposes were viewed with skepticism however, by 

 the courts a century later as regulations for floodplains, wetlands and 

 water quality began to emerge. Some courts looked to intended uses to 

 describe purpose. For example, a zone for meadows conservation that only 

 permitted power lines, radio transmission towers and other public and 

 quasi-public uses along with farming was held invalid in New Jersey. The 

 court viewed the zoning provision as an inappropriate effort to acquire 

 public rights in private property. 



New Jersey's courts have since indicated approval of floodplain 

 zoning and wetlands management, although their earlier strong statement 

 about the acquisition of public rights through regulation remains influential 

 and has not been overruled [4]. 



Apparently similar restrictions on development may result in different 

 court positions on the taking issue. Some commentators describe some public 

 purposes as "heavyweights" in the balancing test, that justify especially 

 tough restrictions on an activity. Actions to block or even eliminate 

 safety hazards like rock quarries in urban areas, or dirty industry are 

 traditional heavyweights. Regulations for these "nuisance" purposes have 

 been the type most frequently considered by the U.S. Supreme Court. Its 

 rejection of taking arguments makes clear the fact that regulation may 

 have a substantial impact on value. But the Court has not reviewed the 

 hard cases. 



75 



