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ATTACHMENT 6 



A BRIEF CHRONOLOGY OF THE 

 HISTORY OF FEDERAL WETLANDS REGULATION 



March 23, 1994 



From the early 19th century through the mid-20th century, federal policy favored the 

 draining and/or filling of wetlands areas. 



In the late 19th century, Congress enacted the Rivers and Harbors legislation (the 

 principal act passed in 1899). This legislation prohibited unauthorized obstructions to 

 navigable waters and included a provision (termed the Refuse Act) that prohibited the 

 discharge of refuse into any navigable water or tributary thereof, where navigation may 

 be impeded or obstructed. 



In the mid-20th century, the Refuse Act became more widely viewed as a measure for 

 controlling pollution. Two Supreme Court decisions in the 1960's sanctioned the use of 

 the Act to prohibit pollution in navigable waters. 



In 1970, a United States Court of Appeals upheld the use of the Refuse Act to control 

 pollution even where there was no effect on navigation {Zabel v. Tabb). 



In December 1970, President Nixon issued Executive Order No. 11574, directing the 

 implementation of a permit program under the Refuse Act. 



The following year a district court held that the regulations implementing the program 

 were invalid (Kalur v. Resor). 



In 1972, Congress enacted the Federal Water Pollution Control Act Amendments of 1972 

 ("FWPCA"), which includes section 404 governing the discharge of dredged or fill 

 material into navigable waters at specified disposal sites. 



In 1975, a district court interpreted "navigable waters" to include waters not limited by 

 the traditional tests of navigability but rather extends jurisdiction over the nation's waters 

 to the maximum extent permissible under the Commerce Clause of the Constitution 

 {NRDC V. Callaway). 



In July 1975, the Corps issued new regulations implementing the FWPCA. These 

 regulations established a lengthy classification of jurisdictional waters, which included: 



* intrastate lakes, rivers, and streams landward to their ordinary high water 



mark and up to their headwaters that are utilized by interstate travels for 

 water related recreational purposes, for the removal of fish sold in 

 interstate commerce, for industrial purposes by industries in interstate 

 commerce or in the production of agricultural commodities sold or 

 transported in interstate commerce; 



