The History of Regulation

Author:Stephen M. Johnson
Pages:25-45
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Chapter 2
The History of Regulation
I. Early Development Laws
Sentiments toward wetlands have evolved significantly over
the history of our nation, and wetlands laws have evolved
significantly as well. For much of the eighteenth and nineteenth
centuries, public sentiment and legislation favored the draining
and conversion of wetlands. They were long considered
“insect-ridden, unattractive, and dangerous” places. See
William A. Niering, Wetlands 19 (Chanticleer Press, 1985). In
1732, William Byrd II, the founder of Richmond, Virginia,
described the Great Dismal Swamp (now a national wildlife
refuge) as “a vast body of mire and nastiness. See U.S.
Department of Interior, U.S. Fish and Wildlife Service, The
Great Dismal Swamp and the Underground Railroad. Thirty
years later, George Washington joined several partners to form
“Adventurers for Draining the Dismal Swamp” and the Virginia
General Assembly authorized their company to harvest the
timber and drain much of the swamp, which extended over
2,000 square miles at the time. See The Diaries of George
Washington, Vol. 1: 11 March 1748 – 13 November 1765, at
319-320 (ed. Donald Jackson. Charlottesville: University Press of Virginia, 1976).
To the extent that Congress legislated in the area of natural resources in the eighteenth
and nineteenth centuries, laws such as the Homestead Act of 1862, Act of May 20, 1862,
Pub. L. 37-62, 12 Stat. 392 (which required the “improvement” of homesteads), and the
General Mining Act of 1872, 30 U.S.C. §§ 22-47, focused on encouraging the settlement of
the country and the exploitation of natural resources, as opposed to protecting and
conserving resources. Federal laws regarding wetlands at the time were no different. The
Swamp Wetland Act of 1849, 9 Stat. 352 (1849), granted to Louisiana all of the swamp
lands in the State that were not suitable for cultivation, so that the State could build levees
and drains to “reclaim” the wetlands. See Shaw, Samuel P. and C. Gordon Fredine, U.S.
Department of the Interior, Circular 39 Wetlands of the United States - Their Extent and
Their Value to Waterfowl and Other Wildlife (1956) [hereinafter “USGS, Wetlands of the
United States”]. The Swamp Wetland Act of 1850, 9 Stat. 519 (1850), granted the swamp
Photo 10 USFWS Photo by S.
Bournique
http://commons.wikimedia.or
g/wiki/File:Great_dismal_swa
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lands in 12 other states (Alabama, Arkansas, California, Florida, Illinois, Indiana, Iowa,
Michigan, Mississippi, Missouri, Ohio, and Wisconsin) to those states for similar purposes.
See USGS, Wetlands of the United States. In 1860, Congress extended the provisions of
those laws to cover the wetlands in Minnesota and Oregon. Id. Through those laws, almost
65 million acres of wetlands were given to the States. Id. The States sold or gave away
most of those wetlands to local governments or developers, and now most are in private
hands. Id. Most of the wetlands that were destroyed over the first two centuries of our
nation were converted to agricultural lands, usually by private landowners. See National
Research Council. Wetlands: Characteristics and Boundaries 17 (Washington, DC: The
National Academies Press, 1995).
At the end of the nineteenth century, Congress passed the Rivers and Harbors
Appropriations Act of 1899, see 33 U.S.C. § 401, et. seq., a law that would eventually
play a role in limiting the destruction and conversion of wetlands. See Chapters 4 and 6,
infra. However, the primary focus of that law is on protecting the navigability of the nation’s
waters and protecting interstate commerce, which is often accomplished through dredging
or the construction of channels. While the law includes provisions that limit obstructions in
navigable waters, see 33 U.S.C. § 403, and prohibits the deposit of refuse in navigable
waters, see 33 U.S.C. § 407, it was almost three quarters of a century after the law was
enacted before courts upheld the government’s authority to prohibit obstruction activities in
wetlands for environmental reasons under the law. See Zabel v. Tabb, 430 F.2d 199 (5th
Cir. 1970). Thus, at the time, enactment of the law did not signal a significant shift in the
congressional policy or attitude toward wetlands.
The prevailing sentiment towards wetlands at the turn of the twentieth century was probably
expressed most clearly in the Supreme Court’s 1900 decision in Leovy v. United States,
when Justice Shiras, for the Court, wrote:
177 U.S. 621, 636 (1900). The Court also noted that converting the wetlands in the case to
agricultural use increased the value of the land from $5,000 to $100,000 and could possibly
increase the value to $300,000. Id. at 627.
II. A Slow Shift to Conservation
Although large segments of the public and policymakers adopted views similar to those
expressed by the Court, the turn of the twentieth century also witnessed the birth of a
national conservation movement. In 1903, by Executive Order, President Theodore
If there is any fact which may be supposed to be known by everybody, and therefore
by courts, it is that swamps and stagnant waters are the cause of malarial and
malignant fevers, and that the police power is never more legitimately exercised than in
removing such nuisances.

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