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.