Lucas Leaves Room for Categorical Defenses for Regulations of Wetlands that Are Critical to Water Resources and Essential for Public Drinking

Abstract

2006 628 (Univ. of Florida Bureau of Economics 40th ed. 2006) (stating that in the year 1990, the population was 528,542 people). 2009] Categorical Defenses for Regulations of Wetlands 253 Florida. In 2000, Miami-Dade was the most populous county in Florida with a population of over two million. With this increase in people came an increase in the demand for water and development, which further destroyed wetlands. Although population increases are a main reason for the destruction of wetlands, it is not the only reason why many wetlands that once existed do not exist today. Many early federal wetlands regulations also contributed to the loss of wetlands. D. Early Wetland Regulations The Swamp and Overflow Land Acts of 1849, 1850, and 1860 promoted wetland drainage. Millions of acres of wetlands were transferred from the federal government to the states to reclaim swamplands for agriculture and development. In 1905, 82 million acres of wetlands had been claimed by fifteen states. Following these Acts, nearly half of these wetlands were destroyed by drainage projects. The Swamp and Overflow Land Acts were not the only Acts contributing to the loss of wetlands. The Flood Control Acts, enacted by Congress between the years 1928 and 1965,resulted in the Army Corps of Engineers spending billions of dollars for the construction of levees, reservoirs, and dams for the purpose of flood control. The Flood Control Act of 1944 was enacted after severe flooding devastated the lower Missouri River basin and authorized the Army Corps of Engineers to build major projects for draining agricultural 88 John J. Fumero, Environmental Law: 1994 Survey of Florida Law—At A Crossroads In Natural Resource Protection And Management In Florida, 19 NOVA L. REV. 77, 78 (1994); see also EDWARD A. FERNALD & ELIZABETH D. PURDUM, ATLAS OF FLORIDA, 97 (Univ. Press of Florida 1992) (stating that Florida’s population almost doubled between the years of 1960 and 1980). 89 MORRIS & MORRIS, supra note 59, at 489. 90 See VILEISIS, supra note 7, at 7 (eleven million acres of wetlands were transformed into farms, suburbs, shopping centers, and airports between the 1950s and mid 1970s). 91 See TINER, supra note 39, at 110 (all of the Great Lakes received swampland). 92 Id. at 113 (northeastern states not included in the Acts because the original thirteen states owned most of the lands). 93 DUGAN, supra note 42, at 48. 94 See e.g., Flood Control Act of 1936, Pub. L. No. 74-738, 49 Stat. 1570 (codified as amended at 33 U.S.C. § 701(a) (2000)); Flood Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887 (codified as amended at 33 U.S.C. § 701-1 (2000)); Flood Control Act of 1965, Pub. L. No. 89-298, 79 Stat. 1073 (1965). 95 See Flood Control Act of 1936, Pub. L. No. 74-738, 49 Stat. 1570 (codified as amended at 33 U.S.C. § 701(a) (2000)); Flood Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887 (codified as amended at 33 U.S.C. § 701-1 (2000)); Flood Control Act of 1965, Pub. L. 89-298, 79 Stat. 1073