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The Federal Regulatory Role
in Coastal Land Management
By Gilbert L. Finnell, Jr.
I. INTRODUCTION 173
II. THE EXISTING DIRECT FEDERAL ROLE 174
A. Two U.S. Corps of Engineers Programs 174
1. Section 404 of the Water Act 176
2. Section 10 of the RHA 178
B. The Geographical Scope of Corps Regulatory Jurisdiction
Under the RHA 179
1. The "Navigable Waters" Criterion 179
2. Boundaries as Guidelines 185
a. Nontidal Rivers and Lakes 185
b. Oceanic and Tidal Waters 186
3. Section 10 Regulation of Wetlands and Canals 186
C. The Geographical Scope of Corps Jurisdiction Under the
Water Act 190
1. The Meaning of "Waters of the United States" 190
2. Legislative Efforts to Modify Section 404 Boun-
D. Substantive Standards and Criteria to Guide Permit Decisions
Under Section 10 and Section 404 198
1. Historical Sketch 198
2. Administration of Sections 10 and 404 204
E. Injunctions and Restoration Orders Under Section 10 of the
SF. Constitutional Limits on Federal Regulation 218
1. The Anomalous "Navigation Servitude" 219
2. Blending of Due Process and Taking Analyses 221
3. Substantive Due Process 224
4. Blending of Reasonableness Factors 226
1978 American Bar Foundation 169
III. THE POTENTIAL SCOPE OF THE FEDERAL ROLE 229
A. The Evolution of the Commerce and Supremacy Clauses 229
B. The Courts' Role in Federal-State Regulatory Conflicts 239
IV. THE INDIRECT FEDERAL ROLE 247
A. The Federal Coastal Zone Management Act of 1972 (FCZMA) 248
1. The Section 306 Approval Process 250
2. The Section 307 Consistency Clauses 254
B. Environmental Protection Agency Programs 259
C. "Cooperative Federalism" and the Constitution 268
1. The Commerce Power 268
2. The Spending Power 274
V. CONCLUSIONS 277
A. An Analytic Framework 277
1. Environmental, Economic, and Social Relation-
2. The Relationship of the Individual Property Owner
to Government 278
3. Intergovernmental Relationships 280
4. The Relationships and Functioning of the Political
and Legal Processes 281
5. Practical Considerations 282
B. The Existing and Potential Direct Federal Regulatory Role 283
C. The Indirect Federal Regulatory Role 286
SPECIAL CITATION FORMS
CLEAN AIR ACT: Some of the present Clean Air Act was originally enacted on
July 14, 1955, but the act has been subsequently amended several times, e.g.,
by the Clean Air Act Amendments of 1970. The act was extensively amended
and renumbered by the Clean Air Act Amendments of 1977, Pub. L. 95-95,
91 Stat. 685, and will be codified at 42 U.S.C. 7401-7642. Throughout
this article, the Clean Air Act, as amended, is cited as the Clean Air Act. All
citations will include the new section number of the act followed by the cor-
responding citation to the U.S.C.A., where the amended act is now codified
at 42 U.S.C.A. 7401-7642 (West Pamph. 3 1977 & Pamph. 4 Feb. 1978).
FCZMA: The Coastal Zone Management Act of 1972, as amended by the Coastal
Zone Management Act Amendments of 1976, Pub. L. 94-370, 90 Stat. 1013,
is codified at 16 U.S.C. 1451-1464 (1976). Throughout this article, the
Coastal Zone Management Act of 1972, as amended, will be cited as the
RHA: The Rivers and Harbors Appropriation Act of 1899, as amended, 33
U.S.C. 401-466n (1970), will be cited throughout this article as the RHA.
WATER ACT: The Federal Water Pollution Control Act was originally enacted
on June 30, 1948, and was subsequently amended several times, e.g., by the
Federal Water Pollution Control Act Amendments of 1972, which exten-
sively amended, reorganized, and expanded the act. It was further signifi-
cantly amended on December 27, 1977, by the Clean Water Act of 1977,
Pub. L. No. 95-217, 91 Stat. 1566. Throughout this article, the Federal
Water Pollution Control Act, as amended, is cited as the Water Act. All cita-
tions will include the section number of the act followed by the correspond-
ing citation to the U.S.C.A., where the act is now codified at 33 U.S.C.A.
1251-1376 (West Supp. 1978 & Pamph. 4 Feb. 1978).
The Federal Regulatory Role
in Coastal Land Management
By Gilbert L. Finnell, Jr.
Historically, the federal government has had a major role in regulation
of coastal activities, restricted until recently, however, primarily to regula-
tion of activities affecting navigable water bodies. On the sea coast,
regulation of areas landward of such jurisdictional boundaries as "mean
high tide line" was generally left to the states or their delegates.
Recently, however, the federal regulatory role, both direct and indirect,
has increased dramatically. This article explores that role. In the first sec-
tion, I examine the existing direct federal role; in the second section, the
potential direct federal role pursuant to the commerce clause of the United
States Constitution; and in the third section, the indirect federal role, ex-
emplified by the grant-in-aid program of the Federal Coastal Zone
Management Act of 1972. I also treat other major programs in enough
detail to illuminate some trends in allocation of decision-making power
over coastal land use. Those trends include: (1) more federal-state concur-
rent jurisdiction (more sharing of power in the same geographic area); (2)
a stronger federal role in areas historically thought to be primarily, if not
solely, within the jurisdiction of state and local governments; (3) assertion
of federal power not only through grant-in-aid programs to the states but
also through direct regulatory programs based on the commerce power;
(4) more state-local programs patterned after existing and emerging
federal-state models; and (5) granting states some leverage over federal ac-
tivity in coastal areas if the state's management programs meet federal
Gilbert L. Finnell, Jr., is Professor of Law, University of Houston, and Affiliated Scholar,
American Bar Foundation. At the introduction to this series of articles on coastal land management,
p. 153 supra, the author acknowledges his gratitude to those chiefly responsible for making this study
possible. He also acknowledges the helpful comments on earlier drafts of this article from John
Banta, Fred Bosselman, Robert Brussack, and Sidney Buchanan.
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
In view of the increasing federal role and the supremacy clause, the deci-
sions of a state considering adoption of coastal regulatory and planning
legislation are likely to be influenced by existing and potential federal
power. Each state policy maker will be affected differently. Some will try
to head off a strong federal role, others will try to shift politically difficult
decisions to the federal level, and some will want to attempt the fullest
cooperation in planning and regulating use of sensitive coastal resources.
Even if state policy makers wished to ignore the federal role completely,
the Constitution would enable Congress and the federal courts to establish
a dominant, and in some cases exclusive, federal role in coastal zone
management. Thus, it is essential to consider the potential extent of
federal regulatory power under the commerce clause and the constitu-
tional doctrines for reconciling federal and state conflicts.
II. THE EXISTING DIRECT FEDERAL ROLE
My major goal in this article is to analyze the potential sweep of federal
power in coastal land management and the judicial techniques for recon-
ciling federal-state conflicts if they arise. Accordingly, I examine, first, the
history and evolution of the commerce and supremacy clauses to test the
generalization that virtually all coastal resources are within the potential
sweep of federal regulatory authority and, second, the judicial techniques
for resolving federal-state regulatory disputes, for example, doctrines of
interference with commerce and preemption.
A. Two U.S. Corps of Engineers Programs
As an introduction, it is useful to explore why and how federal power
expands. Two important mandatory federal programs are excellent for
this purpose: the Corps of Engineers regulatory program under section 10
of the Rivers and Harbors Act of 1899 (RHA)' and the corps' and
Environmental Protection Agency's program under section 404 of the
Federal Water Pollution Control Act Amendments of 1972 as amended by
the Clean Water Act of 1977 (hereinafter, Water Act).2 The expansion of
jurisdiction under these statutes exemplifies the capacity of our legal and
political processes to respond to changing social needs.
A study of how federal power expanded under these two federal pro-
grams reveals that, if states fail to respond adequately to important
perceived regulatory needs, our federal constitutional system permits ex-
pansion of federal power to fill the void, even without congressional ac-
tion. Environmental groups, public interest law firms, and other ad-
vocates for change may, with convincing demands, elicit favorable
1. 33 U.S.C. 403 (1970).
2. 33 U.S.C.A. 1344.
COASTAL LAND MANAGEMENT
responses from the judicial and executive branches of government. The
judiciary and administrative agencies then achieve this expansion of
federal power by elaboration and interpretation of ambiguous terms of
Historically, the Army Corps of Engineers has been the federal agency
having the most significant impact on shorefront development.' Created
in 1802," it initially built coastal fortifications. It gradually evolved as the
federal agency charged with protection and enhancement of navigation
and, eventually, was given far-reaching responsibilities for regulation of
the siting of major developments such as waterfront residential com-
munities; fossel fuel, hydro-electric, and nuclear power plants; and
transcontinental pipelines and transmission lines.5 Recently, because of its
permit programs pursuant to section 10 of the RHA6 and section 404 of
the Water Act,7 the corps has become the federal agency having the most
important responsibility for protecting America's vital wetlands.8
Recent studies show that corps policy evolved from insensitivity to en-
vironmental considerations9 to "public interest review," which began to
emerge in the late 1960s. The latter requires an evaluation of relevant fac-
tors including "conservation, economics, aesthetics, general environmen-
tal concerns, historic values, fish and wildlife values, flood damage
prevention, land use, navigation, recreation, water supply, water quality,
energy needs, safety, food production, and, in general, the needs and the
welfare of the people."'1 Although Congress shifted a major part of the
corps' regulatory responsibility to the Environmental Protection Agency
(EPA) in 1972," at the same time it gave the corps new responsibilities for
3. See generally Garrett Power, The Federal Role in Coastal Development, in Erica L. Dolgin &
Thomas G. P. Guilbert, eds., Federal Environmental Law 792, 796 (St. Paul: West Publishing Co.,
1974); Garrett Power, The Fox in the Chicken Coop: The Regulatory Program of the U.S. Army
Corps of Engineers, 63 Va. L. Rev. 503 (1977).
4. Act of Mar. 16, 1802, ch. 9, 26-29, 2 Stat. 137.
5. Office of the Chief of Engineers, Memorandum, Legal Review of Corps Regulatory Permit
Laws 1 (Apr. 3, 1974); Power, The Federal Role in Coastal Development, supra note 3.
6. 33 U.S.C. 403 (1970).
7. 33 U.S.C.A. 1344.
8. See, e.g., James M. Kramon, Section 10 of the Rivers and Harbors Act: The Emergence of a
New Protection for Tidal Marshes, 33 Md. L. Rev. 229 (1973); Comment, Federal Control Over
Wetland Areas: The Corps of Engineers Expands Its Jurisdiction, 28 U. Fla. L. Rev. 787 (1976);
Comment, Wetlands Protection Under the Corps of Engineers' New Dredge and Fill Jurisdiction, 28
Hastings L.J. 223 (1976).
9. See, e.g., Power, The Federal Role in Coastal Development, supra note 3, at 801; W. Christian
Hoyer, Corps of Engineers Dredge and Fill Jurisdiction: Buttressing a Citadel Under Siege, 26 U. Fla.
L. Rev. 19, 20 (1973).
10. 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. 320.4(a)(1)).
11. Congress relieved the corps of its permit responsibilities under the "Refuse Act" and placed the
responsibility instead in the new National Pollutant Discharge Elimination System (NPDES) program
administered by the EPA. Water Act 402, 33 U.S.C.A. 1342. The corps' responsibilities under the
"Refuse Act," RHA 13, 33 U.S.C. 407 (1970), received wide comment and analysis in the
literature. See, e.g., James T. B. Tripp, Tensions and Conflicts in Federal Pollution Control and
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
administering the Water Act's section 404 dredge and fill program."1
Subsequent judicial interpretation of congressional intent with regard to
the extent of the geographical coverage of the Water Act has resulted in a
major role for the corps in coastal land management."' The section 404
program also initially renewed the antipathy of many environmentalists,
who suspected-judging from the initial efforts of the corps to implement
section 404-that the corps might give inadequate attention to environ-
mental considerations; lately, though, the corps increasingly appears to be
the "environmentalists' hero."'4
1. Section 404 of the Water Act
Section 404 of the Water Act prohibits certain discharges of dredged or
fill material into "navigable waters" (i.e., "waters of the United States")
unless such discharges are authorized by the secretary of the army acting
through the chief of engineers." It reads in part:
The Secretary may issue permits, after notice and opportunity for public
hearings for the discharge of dredged or fill material into the navigable
waters at specified disposal sites.'6
The Corps of Engineers administers this permit program in accordance
with guidelines developed by the corps and the EPA.'7 Section 404 must be
read in conjunction with section 301(a), which makes "the discharge of
any pollutant" unlawful unless certain requirements are met, including
compliance with section 404."1
Study of the section 404 program offers important insights into the
functioning of legal institutions. For example, "navigable waters" in the
Water Resource Policy, 14 Harv. J. Legis. 225 (1977); James T. B. Tripp & Richard M. Hall, Federal
Enforcement Under the Refuse Act of 1899, 35 Alb. L. Rev. 60 (1970); Note, The Refuse Act of 1899:
Its Scope and Role in Control of Water Pollution, 58 Calif. L. Rev. 1444 (1970); Note, The Refuse
Act of 1899: New Tasks for an Old Law, 22 Hastings L.J. 782 (1971); Note, The Refuse Act Permit
Program, 10 Hous. L. Rev. 1139 (1973); Note, Water Pollution Control Under the Refuse Act of
1899, 32 Mont. L. Rev. 120 (1971); Note, The Refuse Act: Its Role Within the Scheme of Federal
Water Quality Legislation, 46 N.Y.U.L. Rev. 304 (1971).
12. 33 U.S.C.A. 1344.
13. The Clean Water Act of 1977 now allows qualifying states to assume the primary regulatory
responsibility for much of the geographic area covered by this program. Water Act 404(g), 33
14. See text at notes 113-34 infra; see also Power, The Fox in the Chicken Coop, supra note 3
("Once the nemesis of the environmentalists, the Corps is now their hero. In the words of Senator
Edmund Muskie: '[We] have put the fox in the chicken coop [and it has] become a chicken.' Id. at
559); Comment, Wetlands' Reluctant Champion: The Corps Takes a Fresh Look at "Navigable
Waters," 6 Envt'l L. 217 (1975).
15. 404, 33 U.S.C.A. 1344. "The term 'navigable waters' means the waters of the United
States, including the territorial seas." Id. 502(7), 33 U.S.C.A. 1362(7).
16. Id. 404(a), 33 U.S.C.A. 1344(a). 404(d), 33 U.S.C.A. 1344(d), defines "Secretary" as
meaning the secretary of the army, acting through the chief of engineers.
17. Id. 404(b), 33 U.S.C.A. 1344(b).
18. 33 U.S.C.A. 1311(a).
COASTAL LAND MANAGEMENT
Water Act means something quite different from the traditional meaning
of navigability under the section 10 program of the RHA, and it is instruc-
tive to understand how this difference arose. United States v. Holland'9 is
an important case analyzing the distinction and holding that Congress, in
its use of "navigable waters" in the Water Act, did not restrict jurisdiction
to traditional notions of navigability, but intended, pursuant to the com-
merce power, to regulate additional "waters of the United States." The
distinction has caused much confusion. Accordingly, the Water Act juris-
dictional term will hereinafter be called "waters of the United States,"
consistent with terminology of the applicable regulations.20
The implementation of section 404, with its expansive geographic cover-
age and broad public interest review criteria, has, in effect, created a ma-
jor federal land regulatory program, which could raise serious questions
of proper federal-state relationships. The Clean Water Act of 1977, how-
ever, provides mechanisms whereby states can increase their role in section
Evolution of the section 404 program also demonstrates how the
federal-state political processes function. The intense debate over the
scope of the section 404 program shows, as well as any federal program
can, how a dynamic and complex interaction of political and legal forces
may combine to forge the tools of coastal zone management. The brief
history of this program has involved serious disputes between the EPA
and the corps, disputes which were possibly based more on philosophical
and policy differences than on interpretations of the controlling legisla-
tion. It took Natural Resources Defense Council, Inc. v. Callaway22 to
resolve the dispute in favor of the EPA's more expansive interpretation.
Callaway followed the Holland lead and concluded that the Water Act's
geographic jurisdiction was intended to be an assertion of "federal juris-
diction over the nation's waters to the maximum extent permissible under
the commerce clause of the Constitution."23 Notwithstanding significant
pressure on Congress to reduce this expansive geographic coverage, the
Clean Water Act of 1977 maintained the Water Act's comprehensive
19. 373 F. Supp. 665 (M.D. Fla. 1974).
20. 42 Fed. Reg. 37,144 (1977) (to be codified in 33 C.F.R. 323.2(a)).
21. See, e.g., 33 U.S.C.A. 1344(g). See also Note, Federal Control of Wetlands: The Effective-
ness of Corps' Regulations Under 404 of the FWPCA, 51 Notre Dame Law. 505 (1976), discussing
problems with corps administration.
22. 392 F. Supp. 685 (D.D.C. 1975).
23. Id. at 686. See Wyoming v. Hoffman, 437 F. Supp. 114, 116 (D. Wyo. 1977) ("Every court that
has considered the question has determined that Federal jurisdiction under the Water Act extends
beyond those [waters] which meet the traditional tests of navigability").
24. 502(7), 33 U.S.C.A. 1362(7).
178 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
The program has received much public interest and comment, including
active participation of the highest officials of the executive branches of
federal and state governments as well as of members of Congress. The
history and evolution of the section 404 program gives useful insights into
the forces that underlie the formulation and implementation of coastal
2. Section 10 of the RHA
Section 10 of the RHA prohibits certain development activities affecting
any "navigable water of the United States" unless such activities are
authorized by the secretary of the army. The full section reads as follows:
The creation of any obstruction not affirmatively authorized by Con-
gress, to the navigable capacity of any of the waters of the United States is
prohibited; and it shall not be lawful to build or commence the building of
any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other
structures in any port, roadstead, haven, harbor, canal, navigable river, or
other water of the United States, outside established harbor lines, or where
no harbor lines have been established, except on plans recommended by the
Chief of Engineers and authorized by the Secretary of the Army; and it shall
not be lawful to excavate or fill, or in any manner to alter or modify the
course, location, condition, or capacity of, any port, roadstead, haven, har-
bor, canal, lake, harbor [of] refuge, or inclosure within the limits of any
breakwater, or of the channel of any navigable water of the United States,
unless the work has been recommended by the Chief of Engineers and
authorized by the Secretary of the Army prior to beginning the same."
Study of the cases brought under section 10 also offers many insights in-
to legal issues of coastal zone management. It provides perspective on the
judiciary's ability and willingness to give contemporary meaning and ef-
fect to an old statute. As expressed by Chief Judge Brown of the Fifth Cir-
Proving again that legislative intent frequently comes to exceed even the
wildest imagination of those responsible for enactment, it is ironic that as a
product of a laissez-faire society, a 19th Century act [the Rivers and Har-
bors Act of 1899] is now once again the effective tool in this decade's
awakening awareness of the importance of man's environment.26
Judicial decisions have gradually expanded the geographic area
regulated (e.g., evolution of the meaning of "navigable waters of the
United States")" and broadened the scope of agency discretion (e.g., the
Zabel v. Tabb" litigation upholding the corps' public interest review
25. 33 U.S.C. 403 (1970).
26. United States v. Joseph G. Moretti, Inc., 478 F.2d 418, 420 (5th Cir. 1973).
27. See notes 29-93 infra and text at same.
28. 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971). See notes 164-79 infra and text
COASTAL LAND MANAGEMENT
B. The Geographical Scope of Corps Regulatory
Jurisdiction Under the RHA
1. The "Navigable Waters" Criterion
The geographical extent of corps jurisdiction under the RHA is deter-
mined by reference to a judicially elaborated term, "navigable waters of
the United States." This test of federal jurisdiction for regulation of
development should be distinguished from other federal tests of navigabil-
ity such as the test for title to beds, for federal question jurisdiction, and
for admiralty jurisdiction, and from state tests for state regulatory pur-
poses.29 It should also be distinguished from "navigable waters" (i.e.,
"waters of the United States") within the meaning of the Water Act.30
Although the meaning is ultimately a judicial question," the Corps of
Engineers currently defines the term for purposes of its regulatory
those waters that are subject to the ebb and flow of the tide and/or are
presently used, or have been used in the past, or may be susceptible for use
to transport interstate or foreign commerce."
The judicially evolved meaning of this term has been exhaustively treated
elsewhere,3 and the following historical sketch will simply provide a base
for more extensive discussion of recent developments in federal regulatory
The touchstone for corps jurisdiction is the term "navigable waters of
the United States." However, federal jurisdiction may be asserted (1)
because the geographic area meets the navigable criterion; or (2) because
an activity or an area outside a navigable area affects the navigable capaci-
ty of the navigable area. Thus, analysis should include both a geographic
and an effects approach. The geographic approach asks: (1) Does the
water body constitute "navigable waters of the United States"? (2) If so,
what are the geographic boundaries for (a) inland waters and (b) coastal
waters? The effects approach continues: (3) Does a proposed activity,
although occurring outside the navigable area, affect the navigable capaci-
29. See, e.g., United States v. Holt State Bank, 270 U.S. 49, 55 (1926) (title to beds underlying
navigable waters); In re Garnett, 141 U.S. 1, 12, 15 (1891) (admiralty jurisdiction). See generally cita-
tions and discussion in United States v. Kaiser-Aetna, 408 F. Supp. 42, 48-49 (D. Hawaii 1976) ("The
use of the term 'navigability' for these four purposes [i.e., title, commerce clause, navigation servi-
tude, and admiralty]... does not necessarily mean that each is co-extensive with the other").
30. See notes 96-147 infra and text at same.
31. Since final determination of navigability is made by the federal courts, which are not
"agencies" for purposes of NEPA, the Corps of Engineers' declaration of a waterway as navigable
does not require the corps to issue an environmental impact statement pursuant to the National
Environmental Policy Act of 1969 102(2)(c), 42 U.S.C. 4332(2)(c) (1970). United States v. Kaiser-
Aetna, 408 F. Supp. 42, 55 (D. Hawaii 1976).
32. 42 Fed. Reg. 37,161 (1977) (to be codified in 33 C.F.R. 329.4).
33. See, e.g., Eva H. Morreale, Federal-State Rights and Relations, in Robert Emmet Clark, ed., 2
Waters and Water Rights, 101.1, at 7 (Indianapolis: Allen Smith Co., 1967).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
ty so as to justify assertion of federal jurisdiction? (4) Does an otherwise
nonnavigable area have such a relationship to a navigable water body that
federal jurisdiction can be asserted over the nonnavigable area?
In Chief Justice John Marshall's 1824 opinion in Gibbons v. Ogden, 3 it
was established that the power to regulate commerce necessarily included
power over.navigation. And, until 1940, the generally accepted definition
of navigability was the "navigable in fact" test enunciated in 1870 in The
Daniel Ball. "
A major extension of federal jurisdiction over navigable waterways oc-
curred in 1940 when the Supreme Court, in United States v. Appalachian
Electric Power Co., accepted the government's argument "that the phrase
'susceptible of being used, in their ordinary condition,' in the Daniel Ball
definition, should not be construed as eliminating the possibility of deter-
mining navigability in the light of the effect of reasonable im-
provements."3' The Court referred to the important public and private in-
terests embraced in the legal concept of navigability and said that
navigability "is not to be determined by a formula which fits every type of
stream under all circumstances and at all times.... We do not purport
now to lay down any single definitive test.""7 The case is particularly im-
portant because the Court rejected the concurrent findings of the district
court and circuit court of appeals that the New River was not navigable
and enunciated a broader test of navigability-with notice of a flexible
judicial attitude toward navigability:
To appraise the evidence of navigability on the natural condition only of
the waterway is erroneous. Its availability for navigation must also be con-
sidered. "Natural and ordinary condition" refers to the volume of water,
the gradients and the regularity of the flow. A waterway, otherwise suitable
for navigation, is not barred from that classification merely because ar-
tificial aids must make the highway suitable for use before commercial
navigation may be undertaken."
... The plenary federal power over commerce must be able to develop with
the needs of that commerce which is the reason for its existence. It cannot
properly be said that the federal power over navigation is enlarged by the
34. 22 U.S. (9 Wheat.) 1 (1824).
35. "Those Rivers must be regarded as public navigable rivers in law which are navigable in fact.
And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary
condition, as highways for commerce, over which trade and travel are or may be conducted in the
customary modes of trade and travel on water. And they constitute navigable waters... when they
form in their ordinary condition by themselves, or by uniting with other waters, a continued highway
over which commerce is or may be carried on with other States or foreign countries in the customary
modes in which such commerce is conducted by water." 77 U.S. (10 Wall.) 557, 563 (1870).
36. 311 U.S. 377, 406 (1940).
37. Id. at 404.
38. Id. at 407.
COASTAL LAND MANAGEMENT
improvements to the waterways. It is merely that improvements make ap-
plicable to certain waterways the existing power over commerce."
Federal control over the nation's waterways has also been extended by
Supreme Court decisions holding that nonnavigable streams affecting the
capacity of navigable streams are subject to federal jurisdiction. For ex-
ample, in Oklahoma v. Atkinson Co.'4 the Supreme Court considered the
constitutionality of a 1938 act of Congress authorizing construction of the
Denison Reservoir on the Red River in Texas and Oklahoma. The project
was "declared to be for the purpose of improving navigation, regulating
the flow of the Red River, controlling floods, and for other beneficial
uses."41 No part of the Red River in Oklahoma was navigable,42 and since
100,000 acres of Oklahoma land would be included in the reservoir,
thereby resulting in alleged losses of local tax revenues, oil revenues, and
other losses, Oklahoma sought to enjoin construction of the dam and
reservoir on the grounds that the project exceeded the constitutional
powers of Congress. Justice Douglas delivered the Court's opinion
upholding the project as a valid exercise of the commerce power. The
Court noted that the project was "part of a comprehensive flood-control
plan, ... designed to control the watershed of a principal tributary of the
Mississippi in alleviation of floods in the lower Red River and Mississippi
Valleys"43 and held that "the power of flood control extends to the
tributaries of navigable streams.""
There is also authority that a private nonnavigable water body may so
affect the navigable capacity of nearby waters as to subject the non-
navigable water body to federal regulatory jurisdiction. For example, the
Fifth Circuit court of appeals, in Tatum v. Blackstock,45 affirmed the en-
joining of construction in an area of low land or on a tidal flat that was
substantially covered by water at high tide. The court found no abuse of
discretion in granting the preliminary injunction because the cutting of a
man-made channel had converted a peninsula into an island completely
surrounded by navigable water. The court reasoned:
It is clear that it is necessary to obtain a permit from the Corps of Engineers
under existing law and regulations before submerged land may lawfully be
39. Id. at 409.
40. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941).
41. Id. at 515 n.4.
42. Id. at 523 (citing Oklahoma v. Texas, 258 U.S. 574, 591 (1921)).
43. Id. at 520.
44. Id. at 525. See 2 Waters and Water Rights, supra note 33, 101.1(A), at 7, for argument of
possible "narrower principle that a stream once navigable remains navigable." But see United States
v. Grand River Dam Auth. 363 U.S. 229, 232 (1960) (referring to the Court's holding in Oklahoma v.
45. 319 F.2d 397 (5th Cir. 1963).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
filled, excavated, channelled and other similar activities performed thereon
such as contemplated here, if the area is navigable, or if the proposed work
would affect nearby navigable waters.46
The 1963 Tatum case, however, involved challenged activity occurring
below the mean high tide line (MHTL). The Fifth Circuit's 1976 opinion
in United States v. Sexton Cove Estates, Inc.,47 on the other hand, clearly
considered the issue of corps jurisdiction above the mean high tide line.
Sexton Cove held that "activities which occur shoreward of MHTL, ab-
sent Corps approval, may, within certain limitations, be within the pro-
hibitions of the Act."48 Applying this principle to canals shoreward of
MHTL but connected with traditional navigable waters, the court con-
cluded that the lower court's findings-that these canals affected the
navigable capacity of the adjoining waters-were supported by the record.
The court's reasoning is particularly instructive. Although acknowledging
the historical justifications for using a mean high water demarcation, the
court emphasized that the statute does not compel such limits on the
We find no locality assigned to its prohibitions. It prohibits any obstruction
to navigable capacity. There is no suggestion that an obstruction whose
source is above MHTL escapes prosecution ... There is nothing in the
language of the statute nor the logic of its implementation which creates this
barrier beyond which the Corps is ubiquitously powerless.49
The court noted that its approach to federal regulatory jurisdiction was
consistent with traditional Supreme Court analysis. For example, in the
1899 case of United States v. Rio Grande Dam and Irrigation Co.,50 the
United States Supreme Court upheld regulatory jurisdiction under a
predecessor statute even though the river in New Mexico where a proposed
dam would be built was not navigable.
[A]ny obstruction to the navigable capacity, and anything, wherever done
or however done, within the limits of the jurisdiction of the United States
which tends to destroy the navigable capacity of one of the navigable waters
of the United States, is within the terms of the prohibition."
United States v. Kaiser-Aetna, 2 a 1976 case in the United States District
46. Id. at 399 (emphasis added).
47. 526 F.2d 1293 (5th Cir. 1976); see generally Note, Section 10 of the Rivers and Harbors Act:
Jurisdiction Shoreward of the Mean High Tide Line, 31 U. Miami L. Rev. 697 (1977).
48. 526 F.2d at 1299. But see United States v. Commodore Club, Inc., 418 F. Supp. 311 (E.D.
Mich. 1976), where the court held that the government, in a criminal prosecution under 33 U.S.C.
403, did not prove "beyond a reasonable doubt" that an area inundated with flood waters from a
navigable lake met the "navigable waters" criterion. Id. at 311, 322.
49. 526 F.2d at 1298.
50. 174 U.S. 690 (1899).
51. Id. at 708; see also Neil J. Barker, Sections 9 and 10 of the Rivers and Harbors Act of 1899:
Potent Tools for Environmental Protection, 6 Ecology L.Q. 109, 131-32 (1976).
52. 408 F. Supp. 42 (D. Hawaii 1976).
COASTAL LAND MANAGEMENT
Court for the District of Hawaii, considers another argument for subjec-
ting private "nonnavigable" water bodies to section 10 jurisdiction: an
otherwise nonnavigable water body may, because of interstate commercial
use, become "navigable waters of the United States," for section 10
Kaiser-Aetna concerns Kuapa Pond, one of many Hawaiian
fishpondss," most of which were built behind barrier beaches and have
remained subject to the ebb and flow of the tide. These fishponds have
been considered private property by landowners and by the Hawaiian
government from prerecorded history, through the Great Mahele of 1852
and the Organic Act of 1900." The present Hawaiian constitution
recognizes the private nature of these ponds.54 Kaiser-Aetna sketches
much of this general history, including specific discussion of Kuapa Pond,
which in its redevelopment state covered 523 acres and extended approx-
imately two miles inland from Muanalua Bay and the Pacific Ocean on the
island of Oahu.
Most fishponds were built behind barrier beaches, such as Kuapa Pond, or
immediately seaward of the land controlled by the alii, or chiefs. By impos-
ing a tabu on the taking of the fish from a pond, the chief alone determined
the allotment, if any, of fish, just as he distributed the other crops among
his sub-chiefs, land agents, and vassals. The fishpond was thus an integral
part of the Hawaiian feudal system. Chiefs gave land, including its
fishponds, to sub-chiefs, or took it away at will. Any fishponds in con-
quered chiefdoms became the personal property of the conquering high
chief and were treated in the same manner the high chief treated all newly
subjugated lands and appurtenances. The commoner had no absolute right
to fish in the ponds, nor in the sector of ocean adjacent to the chief's
land-all of such rights were vested in the chiefs and ultimately in the king,
In 1848, King Kamehameha III pronounced the Great Mahele, or na-
tional land distribution. Any fishponds therein were allotted as part or in-
holding of the ahupuaa (a land/water unit). Titles to fishponds were
recognized to the same extent and in the same manner as rights were
recognized in fast land. Kuapa Pond was within the land of a Royal Patent,
pursuant to the Great Mahele, with title eventually vesting in Bernice
Pauahi Bishop and thence in defendant Bishop Estate."
Kaiser-Aetna is important because the federal district court believed
that the unique property status of these fishponds precluded their being
subject to the usual tests of navigability, such as the ebb and flow test.
Therefore, the court concluded that, to determine whether the Corps of
53. The Great Mahele was the national land distribution pronounced by King Kamehameha III in
1848. Id. at 47. The Organic Act (Act of July 7, 1898, 30 Stat. 750-51) was the comprehensive legisla-
tion for governing the annexed Hawaiian Islands. Id. at 52 n.25.
54. Hawaii Const., art. X, 3; see also 408 F. Supp. at 51.
55. 408 F. Supp. at 46-47.
184 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
Engineers could require a section 10 permit under the RHA, the court had
to treat Kuapa Pond as "the legal equivalent of fast land for property and
'navigation' purposes." The issue was framed as
whether or not the transformation of the pond into the Hawaii-Kai Marina
and its subsequent use has altered the owner's legal rights with respect to
any federal control over the waters and the public use thereof. 5
In 1961, Kaiser-Aetna obtained master subdivision housing-develop-
ment rights to a 6,000-acre area known as Hawaii-Kai, which included the
Kuapa Pond area. Originally, the corps indicated that proposed dredging
and filling of Kuapa Pond would not require a permit. The area was
developed to an average depth of six feet, with a main channel of eight
feet. Kaiser-Aetna operated a 25-passenger boat within the marina. From
1967 to 1974, Kaiser-Aetna used the boat primarily to show the area to
possible subdevelopers and purchasers of homes or home sites, although
on Sunday the general public could join the cruises. The promotion end-
ed in early 1974, but the Marina Queen continued to be used for promo-
tion of real estate sales and other purposes. In short, the court found
evidence of "current substantial use of the marina in interstate com-
merce"-"the marina is in fact used in interstate commerce both to raise
revenue for Kaiser-Aetna and to transport residents and nonresidents by
waterway into and out of Maunalua Bay," a navigable water body.
Therefore, the court concluded that
the waters of the marina cannot now be considered to be private property in
and upon which its owners may do as they please without any possible
federal regulation. As used by the defendants, the marina has become the
legal equivalent of a toll-charging canal or harbor and therefore subject to
regulation by the Corps of Engineers under 10 of the Rivers and Harbors
In summary, although the criterion "navigable waters of the United
States" is the important starting point for defining geographic jurisdic-
tion, notions of navigability have changed sharply since the "navigability
in fact" test of Daniel Ball. By allowing consideration of the effect of
reasonable improvements, the 1940 Appalachian Power case considerably
broadened the criterion. And recent cases illustrate some additional
theories for extending federal regulatory jurisdiction: (1) that activities
that affect navigable waters should be subjected to section 10 jurisdiction
even if they occur beyond traditional navigable boundaries; and (2) that
an otherwise nonnavigable water body may, because of interstate commer-
cial use, become navigable waters of the United States for section 10
56. Id. at 52.
57. Id. at 53.
58. 42 Fed. Reg. 37,162 (1977) (to be codified in 33 C.F.R. 329.6, 329.7).
COASTAL LAND MANAGEMENT
The concept of effects upon navigation is also expanding. Zabel v.
Tabb" is a significant case upholding the duty of the secretary of the army
to consider ecological effects in dredge and fill applications even if a pro-
posed dredge and fill project would not interfere with actual navigation,
flood control, or production of power. In Sexton Cove, discussed above,
the Fifth Circuit cited its Zabel opinion for the proposition:
The local origin of the activity or the source of its operation is thus not
wholly determinative; of at least equal significance is the "effect."'6
Predictably, then, the judiciary will continue to take a flexible attitude
toward the navigability criterion. Courts will continue to explain, for ex-
ample, that "[t]he plenary federal power over commerce must be able to
develop with the needs of that commerce which is the reason for its ex-
istence."6' Notions of commerce and effects upon commerce will also
predictably expand in order to reflect changing concepts of the public in-
2. Boundaries as Guidelines
Once a water body is declared "navigable," the next step is to determine
its boundaries. The corps may assert jurisdiction over activities occurring
outside these arbitrary boundaries, however, if the proposed type of ac-
tivity "so affects] the navigable waters ... that the assertion of
regulatory jurisdiction is deemed necessary."62
a. Nontidal Rivers and Lakes O O Different boundary tests are used for
inland and coastal waters. For nontidal water bodies, the corps asserts
jurisdiction laterally to the entire water surface and bed to the "ordinary
high water mark." As stated by the United States Supreme Court in 1961:
The dominant power of the federal Government, as has been repeatedly
held, extends to the entire bed of a stream, which includes the lands below
ordinary high-water mark. The exercise of the power within these limits is
not an invasion of any private property right in such lands for which the
United States must make compensation. The damage sustained results not
from a taking of the riparian owner's property in the stream bed, but from
the lawful exercise of a power to which that property has always been sub-
This test extends section 10 regulatory jurisdiction only to the area "essen-
tially coterminous" with the "navigation servitude," or that portion of
59. 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971). See notes 164-79 infra and text
60. United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1298 (5th Cir. 1976).
61. United States v. Appalachian Elec. Power Co., 311 U.S. 377, 409 (1940).
62. 42 Fed. Reg. 37,164 (1977) (to be codified in 33 C.F.R. 329.15(c)).
63. United States v. Virginia Elec. & Power Co., 365 U.S. 624, 628 (1961) (reciting the test enunci-
ated in United States v. Chicago, M., St. P. & P.R.R. Co., 312 U.S. 592, 596-97). See also 42 Fed.
Reg. 37,163 (1977) (to be codified in 33 C.F.R. 329.11(a)).
186 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
the federal regulatory power the exercise of which has historically been
distinguished for compensation purposes from other exercises of federal
power.64 Although Sexton Cove suggests that boundaries such as "mean
high tide line" are useful guidelines, the statute does not compel such an
arbitrary boundary.65 So activities above the "ordinary high water mark"
could also fall within corps regulatory responsibility if the activities con-
stituted an "obstruction to navigable capacity."
b. Oceanic and Tidal Waters O E The corps defines its section 10
regulatory jurisdiction over ocean and coastal waters as including on the
seaward side, "all ocean and coastal waters within a zone three
geographical (nautical) miles seaward from the coast line."66 On the land-
ward side, it extends "to the line on the shore reached by the plane of the
mean (average) high water," except on the Pacific coasts where, because
of significant differences in the two daily tides, "the mean of the higher
high waters" is used.67
Jurisdiction over bays and estuaries extends "to the entire surface and
bed of all waterbodies subject to tidal action.... even though portions of
the waterbody may be extremely shallow, or obstructed by shoals, vegeta-
tion or other barriers."68 The corps' definition expressly includes coastal
marshlands and similar areas "navigable in law." The test, then, would be
"the presence of the mean high tidal waters, and not the general test
described above, which generally applies to inland rivers and lakes.""69
3. Section 10 Regulation of Wetlands and Canals
Until recently, the corps was unwilling to regulate coastal wetlands as
far as expanding definitions would have allowed. Its policy included
establishing harbor lines under section 11 of the RHA and, where such
lines were established, normally requiring permits only for proposed work
seaward of the line.70 Corps regulations had also provided that such a har-
bor line "implies consent to riparian owners to erect structures to the line
64. See notes 277-89 infra and text at same for discussion of "navigation servitude." Notice that
the geographic scope of "navigation servitude" does not always coincide precisely with the
geographic scope of federal regulatory power for navigation purposes. See note 285 infra. Note also
that commerce power regulation has a broader geographic scope than the area covered by the naviga-
65. See notes 47-51 supra and text at same.
66. 42 Fed. Reg. 37,163 (1977) (to be codified in 33 C.F.R. 329.12(a)).
67. Id. (to be codified in 329.12(a)(2)). See Leslie Salt Co. v. Froehlke, 403 F. Supp. 1292 (N.D.
Cal. 1974), and Sierra Club v. Leslie Salt Co., 412 F. Supp. 1096 (N.D. Cal. 1976), which consider the
corps' definition of jurisdiction under the RHA and 404 of the Water Act.
68. 42 Fed. Reg. 37,163 (1977) (to be codified in 33 C.F.R. 329.12(b)).
70. Hoyer, supra note 9, at 24. Cf. United States v. Stoeco Homes, Inc., 498 F.2d 597, 602-3 (3d
Cir. 1974), cert. denied, 420 U.S. 927 (1975).
COASTAL LAND MANAGEMENT
without special authorization by the Secretary of the Army."7' The corps
was subjected to congressional criticism for the effects of its wetlands
policies72 and responded by promulgating a regulation on May 27, 1970,
which provided that thereafter "all existing and future harbor lines are
declared to be guidelines" only.73
A supposed limitation on using an "ebb and flow of the tide" test was a
dictum in the 1870 Daniel Ball opinion that "the ebb and flow of the tide
do not constitute...any test at all of the navigability of waters.""7 The
corps explained that this dictum applied to freshwater inland rivers and
that the 1851 Genesee Chief' opinion abandoned an ebb and flow test as
the exclusive criterion of navigability. It examined that water's "navigable
character," thereby extending federal jurisdiction into major nontidal in-
land waters. The corps reasoned that "[t]he ebb and flow test, however,
remains valid as a rule of navigability in tidal areas; it is merely no longer a
restriction for non-tidal areas."76 As the following discussion indicates,
the courts are willing to accept this test.
On April 3, 1974, the corps issued regulations establishing a wetlands
protection policy, including jurisdiction under both section 10 of the RHA
and section 404 of the Water Act.7 The general definition, subsequently
amended in the July 19, 1977, regulations, now reads:
The term "wetlands" means those areas that are inundated or saturated by
surface or ground water at a frequency and duration sufficient to support,
and that under normal circumstances do support, a prevalence of vegetation
typically adapted for life in saturated soil conditions. Wetlands generally in-
clude swamps, marshes, bogs and similar areas.78
"Wetlands considered to perform functions important to the public in-
terest" were defined in detail.79 For these important wetlands, no permit
could be granted "unless the District Engineer concludes ... that the
benefits of the proposed alteration outweigh the damage to the wetlands
resource and the proposed alteration is necessary to realize those
71. 33 C.F.R. 209.150(i)(1) (1970) (noting dredging as an exception to this general policy).
72. House Committee on Government Operations, Our Waters and Wetlands: How the Corps of
Engineers Can Help Prevent Their Destruction and Pollution, H.R. Rep. No. 917, 91st Cong., 2d
Sess. 7 (1970).
73. 33 C.F.R. 209.150(b)(1) (1972). Compare 42 Fed. Reg. 37,161 (1977) (to be codified in 33
74. The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870).
75. Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851).
76. Office of the Chief of Engineers, Attorney's Supplement, Definition of Navigable Waters of
the United States 31-32 (Sept. 1972). See also United States v. Stoeco Homes, Inc. 498 F.2d 597 (3d
Cir. 1974), cert. denied, 420 U.S. 927 (1975).
77. 33 C.F.R. 209.120 (1974).
78. 42 Fed. Reg. 37,144 (1977) (to be codified in 33 C.F.R. 323.2(c)).
79. See 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. 320.4(b)(2)).
188 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
benefits." The two major standards in determining whether alteration was
necessary were "whether the proposed activity is primarily dependent on
being located in, or in close proximity to the aquatic environment and
whether feasible alternative sites are available.""
Including waters subject to the ebb and flow of the tide within the term
"navigable waters of the United States" is an important jurisdictional
foundation for coastal wetlands regulation. The corps seems to have been
the first federal agency to adopt this principle," which is gaining judicial
acceptance. In the 1974 case of United States v. Stoeco Homes, Inc., 8 the
U.S. Court of Appeals for the Third Circuit considered whether the
Daniel Ball comment was intended to contract federal regulatory jurisdic-
tion. The court concluded that an expansion was intended, holding that
section 10 applied to tidal marshes. The present test was summarized as
In non-tidal waters the test is actual or reasonably potential navigability. In
tidal waters the test, in our view, remains what it was before 1851, the ebb
and flow of the tide.3
A common practice of land developers has been dredging canals, then
connecting them to tidal waters--"pulling the plug." The practice has
been particularly prevalent in Florida.84 In 1973, the corps' general
counsel wrote the attorney general of Florida indicating that the actual
connection of such a canal-the pulling of the plug-was an activity affec-
ting the condition and capacity of navigable waters of the United States
and therefore requiring a section 10 permit."8
The courts have agreed. In United States v. Sexton Cove Estates, 8 the
parties stipulated that five canals dug on Upper Key Largo were connected
to "navigable waters of the United States" and were subject to tidal fluc-
tuations. The court also found that five additional unopened canals show-
ed tidal fluctuations and thereby affected the nearby navigable waters.
Hence the court concluded:
In the classical sense, the defendants' canal system is itself "navigable
waters of the United States" merely by virtue of its being tidal.7
The court also considered what would happen if the defendants were
80. 42 Fed. Reg. 37,137 (1977) (to be codified in 33 C.F.R. 320.4(b)(4)) (emphasis added).
81. Interview with William Hedeman, Esq., Office of General Counsel, U.S. Army Corps of
Engineers, in Washington, D.C. (Apr. 23, 1975).
82. 498 F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927 (1975).
83. 498 F.2d at 610.
84. See, e.g., Current Developments, Development of Florida Wetlands Seen "Devastating"
Environment,  7 Envir. Rep.-Cur. Dev. (BNA) 1938 (reporting on an Apr. 19, 1977, report
"prepared by Inform, a nonprofit research group in New York").
85. See note 81 supra.
86. 389 F. Supp. 602 (S.D. Fla. 1975), rev'd in part, 526 F.2d 1293 (5th Cir. 1976).
87. 389 F. Supp. at 607.
COASTAL LAND MANAGEMENT
voluntarily to plug their canal system. The court concluded, citing United
States v. Appalachian Electric Power Co., that the canals would remain
navigable waters: "Once found to be navigable, a waterway remains
The Fifth Circuit upheld jurisdiction over the five connected canals,89
agreeing that the ebb and flow of the tide test is used to determine if ex-
isting waters are navigable. However, the court reversed the district
court's finding that the corps had jurisdiction over five landlocked canals
exhibiting tidal fluctuations, explaining:
The argument is that if they [the five canals] exhibit these fluctuations after
they are dug, a permit was required to excavate them initially. However, ex-
hibition of tidal fluctuation subsequent to excavation does not prove altera-
tion or modification of course, condition, location or capacity. If it did,
every hole dug in South Florida would be within the Corps' jurisdiction.
The Corps jurisdictional fingers do not reach that far.90
The second case, Weiszmann v. Corps of Engineers, also involved ar-
tificial canals on Florida Key, which the district court concluded were
navigable "by virtue of their being tidal."91 As in Sexton Cove, the Fifth
Circuit92 upheld jurisdiction over the canal that connected to a preexisting
canal that was navigable in fact, but it held that the corps had no jurisdic-
tion over the dredging of a landlocked canal above MHTL even though it
exhibited tidal fluctuations.
Although the Fifth Circuit opinions in Sexton Cove and Weiszmann
hold that original excavations of landlocked canals will not require a per-
mit, the opinions do not seem to answer the question of whether a
landlocked canal, which after completion exhibited tidal fluctuations,
thereafter could be subject to federal jurisdiction under the RHA.
Arguably, a landlocked canal that subsequently exhibited tidal fluctua-
tions could thereafter be subject to the corps' regulatory jurisdic-
tion-either under the "ebb and flow test" or simply because of the effect
(due to the tidal relationships) of subsequent activity on the course, condi-
tion, or capacity of navigable waters. Certainly, if the landlocked canal is
subsequently connected to navigable waters in a way that affected the
course, condition, or capacity of navigable waters, a permit should be re-
88. Id. at 609 (quoting from 311 U.S. 377, 408). But cf. United States v. Stoeco Homes, Inc., 498
F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927 (1975).
89. United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976).
90. Id. at 1299.
91. Weiszmann v. District Eng'r, U.S. Army Corps of Eng'rs, 7 E.R.C. 1523, 1525 (S.D. Fla.
1975), rev'd in part, 526 F.2d 1302 (5th Cir. 1976).
92. 526 F.2d 1302 (5th Cir. 1976).
93. Cf. United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976).
190 AMERICAN BAR FOUNDATION RESEARCH JOURNAL
C. The Geographical Scope of Corps Jurisdiction
Under the Water Act
The preceding sketch indicates how the courts have been willing to
uphold expansion of the geographic jurisdiction of the RHA to protect the
environment. But section 10 is only one tool. Section 404 of the Water
Act94 enables the corps and the EPA to regulate certain dredge and fill ac-
tivities in areas well beyond the traditional "navigable waters of the
United States" criterion."
1. The Meaning of "Waters of the United States"
Congressional use of "navigability" in the Rivers and Harbors Act of
1899, has been interpreted as an assertion of regulatory power over a
geographic area smaller than the maximum area subject to regulation
under the commerce clause.96 In the Water Act, however, Congress in-
tended to cover a broader area; at least one court has held that Congress
intended to assert jurisdiction over the maximum geographic area subject
to federal regulation under the commerce clause.9 This result was reached
by an expansive interpretation of the terms "navigable waters" and "the
waters of the United States, including the territorial seas."98
Judge Krentzman's opinion in United States v. Holland" explains how
the clear meaning of the statute and the legislative history demonstrate
congressional intent to expand jurisdiction. In Holland, the United States
sought to enjoin landfilling operations in man-made mosquito canals and
mangrove wetlands. The court restricted its consideration to jurisdiction
under the Water Act and to whether Congress intended to reach the pollu-
tion of nonnavigable mosquito canals and mangrove wetlands.100 It con-
cluded that Congress intended to define away the old "navigability"
restriction pursuant to its power under the commerce clause.''0 It then
held that pollution of canals that empty into a bayou arm of Tampa Bay
was clearly an activity Congress sought to regulate: "The fact that these
canals were man-made makes no difference."'02 Finally, although noting
94. 33 U.S.C.A. 1344.
95. Note also the possibility of the individual states assuming this process. Water Act 404(g), 33
96. See notes 29-93 supra and text at same.
97. Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
98. Water Act 502(7), 33 U.S.C.A. 1362(7).
99. 373 F. Supp. 665 (M.D. Fla. 1974). See Comment, Federal Jurisdiction-Water Pollution Con-
trol-Federal Water Pollution Control Amendments of 1972 Reach Polluting Activities Occurring
Above Mean High-Water Line, 2 Fla. St. U.L. Rev. 799 (1974).
100. 373 F. Supp. at 673-74.
101. Id. at 671-72, 673. See notes 325-81 infra and text at same for discussion of the commerce
102. 373 F. Supp. at 673.
COASTAL LAND MANAGEMENT
that the conclusion was slightly less apparent, the court decided that Con-
gress intended to reach activities such as the filling of mangrove wetlands
above the mean high water line. 10
Judge Krentzman was particularly impressed by the sensitivity of the
Water Act to the value of a coastal breeding ground and how "the
delicately balanced coastal environment is highly sensitive to human ac-
tivities within its confines."10' He emphasized portions of the legislative
history which pointed out that watertr moves in hydrologic cycles and it
is essential that discharge of pollutants be controlled at the source. '"' He
concluded, therefore, that gettingig at the source of pollution is going
beyond the confines of a high water line.... [M]ost of the damage to
marine life results from land-based and not sea-based activities."106
The Holland decision relied in part on a district court's holding in
United States v. Ashland Oil and Transportation Co. 10 in concluding that
the former test of navigability was defined away in the Water Act. On
November 1, 1974, a few months after Holland, the Sixth Circuit affirmed
the district court's holding in Ashland that a tertiary, nonnavigable
tributary was within the reach of the Water Act definition.10s The
discharge for which Ashland Oil was being criminally prosecuted had oc-
curred in a small nonnavigable tributary to Little Cypress Creek, which is
a nonnavigalile tributary to Pond River, which in turn is a nonnavigable
tributary to Green River, which is navigable in fact at the point where
Pond River empties into it. The opinion carefully analyzed the language,
the purposes, and the legislative history of the Water Act, with particular
attention to the explanation of Representative Dingell (a conferee) that
"[n]o longer are the old, narrow definitions of navigability, as determined
by the Corps of Engineers, going to govern.... The conferees fully intend
that the term navigable waters be given the broadest possible constitu-
103. Id. at 674-76.
104. Id. at 675 (citing Cooper, Ecological Considerations, Coastal Zone Management 129 (J. Hite
& J. Stepp eds. 1971)).
105. Id. at 671-72 (citing 2 Senate Committee on Public Works Report, submitted with S. 2770, at
1495) (emphasis added by court).
106. Id. at 675. Judge Krentzman's opinion explains why the mean high water line was a reasonable
demarcation when, at the passage of the Rivers and Harbors Act of 1899, the primary purpose was
"to keep the navigable waters free of physical impediments." Id. at 670. He also traced other uses of
such boundaries, e.g., as the boundary between private and sovereign lands, citing Frank E. Maloney,
Sheldon J. Plager, & Fletcher N. Baldwin, Jr., Water Law and Administration: The Florida Experi-
ence 67 (Gainesville: University of Florida Press, 1968), and Norwood Gay, The High Water Mark:
Boundary Between Public and Private Lands, 18 U. Fla. L. Rev. 553 (1966). See also Frank E.
Maloney & Richard C. Ausness, The Use and Legal Significance of the Mean High Water Line in
Coastal Boundary Mapping, 53 N.C.L. Rev. 185 (1974); Note, Florida's Sovereignty Submerged
Lands: What Are They, Who Owns Them and Where Is the Boundary? 1 Fla. St. U.L. Rev. 596
107. 364 F. Supp. 349 (W.D. Ky. 1973), aff'd, 504 F.2d 1317 (6th Cir. 1974).
108. 504 F.2d 1317 (6th Cir. 1974). See notes 343-45 infra and text at same for further discussion of
192 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
tional interpretation."'"9 The court concluded that the Water Act applies
"to all water bodies, including main streams and their tributaries.'" 10
The courts have agreed that Congress wanted something new in the
Water Act and defined away the traditional restrictive concept of naviga-
tion.'" This issue brought the EPA and the corps into sharp disagreement
about congressional intent, the former giving an expansive interpretation
to the Water Act term "navigable waters,""'2 consistent with the court
decisions, while the corps initially promulgated a definition restricting its
section 404 jurisdiction to the same area covered by the traditional
navigability concept under the RHA."
In June 1974, the administrator of the EPA reminded the chief of the
Corps of Engineers of the Holland "jurisdictional milestone" and em-
phasized the importance of section 404 to wetlands protection."4 The act-
ing chief of the corps responded, focusing the dispute as
whether the Federal Government can regulate areas landward of the tradi-
tional mean high water mark under the FWPCA [Water Act], particularly
in mangrove wetland areas which are subject only to periodic inundations
by tidal waters. "'
Although he conceded that Congress had the power to extend jurisdiction
to control water pollution at its source, he added that the commerce clause
power was "limited by the due process and taking clauses of the Fifth
Amendment." In interpreting the Water Act, the corps had chosen to
restrict the section 404 program to the area covered by the navigation ser-
109. 504 F.2d at 1324 (citing legislative history at 118 Cong. Rec. 33756-57 (1972) and Conference
Report at 144).
110. Id. at 1325 (quoting Congressman Dingell).
111. See, e.g., United States v. Union Pacific, 8 E.R.C. 1127 (D. Utah, Aug. 6, 1975) (Great Salt
Lake); P.F.Z. Properties, Inc. v. Train, 393 F. Supp. 1370 (D.D.C. 1975) (nontidal mangrove swamp
near San Juan, Puerto Rico); United States v. Smith, 7 E.R.C. 1937 (E.D. Va. 1975) (marsh wetlands
regularly or periodically inundated); Leslie Salt Co. v. Froehlke, 403 F. Supp. 1292 (N.D. Cal. 1974)
(above mean high water line); Conservation Council v. Costanzo, 398 F. Supp. 653 (E.D.N.C. 1975),
aff'd, 528 F.2d 250 (4th Cir. 1975) (salt meadow wetlands, but not subject to inundation by the tides
"under normal conditions"); Sierra Club v. Leslie Salt Co., 412 F. Supp. 1096 (N.D. Cal. 1976)
(mean higher high water line); Wyoming v. Hoffman, 437 F. Supp. 114 (D. Wyo. 1977) (noting that
everyey court that has considered the question has determined that Federal jurisdiction under the
Water Act extends beyond those [waters] which meet the traditional tests of navigability," id. at 116,
and listing cases so holding, id. at 117-18).
112. See Environmental Protection Agency Memorandum to Regional Offices on the Meaning of
the Term "Navigable Waters,"  6 Envir. L. Rep. (ELI) 46,318.
113. 33 C.F.R. 209.120(d)(1) (1974).
114. Letter from Russell E. Train, Administrator, EPA, to Lt. Gen. W. C. Gribble, Jr., Chief,
Corps of Engineers (June 19, 1974).
115. Letter from Maj. Gen. D. A. Raymond, Acting Chief of Engineers, to Russell E. Train (Aug.
116. See notes 277-89 infra and text at same. The Department of Justice expressed a view consis-
tent with that of the EPA. Letter from Wallace H. Johnson, Assistant Attorney General, Department
of Justice, to Manning E. Seltzer, Esq., U.S. Army Corps of Engineers (Aug. 16, 1974), urging the
corps "to assign high priority to reaching an agreement on the Section 404 guidelines that will provide
COASTAL LAND MANAGEMENT
On August 16, 1974, the Natural Resources Defense Council, Inc., and
the National Wildlife Federation filed suit, with Florida intervening on
behalf of the plaintiffs, seeking declaratory judgment and injunctive relief
against the EPA and the corps "to challenge their failure to regulate the
discharge of dredged or fill material ... as required by Sections 301(a)
and 404 [of the Water Act],"'1 with the alleged result that certain low-
lying areas such as marshes, swamps, bogs, and inland and coastal
shallows would be affected by the failure to regulate, threatening loss of
wetlands representing ecosystems of unique and major importance to the
Then, on February 5, 1975, the secretary of the army recommended,
with Department of Justice concurrence, that the section 404 jurisdic-
tional issue be forwarded to President Ford for resolution. The issues were
whether Section 404 of the [Water Act] extends the Department of the
Army's jurisdiction to those upper wetland areas beyond the limits of the
federal navigational servitude that are only occasionally or never inundated
by tidal waters, and whether the Department of the Army can or should ex-
tend its jurisdiction as a practical matter."'
The letter and its accompanying position paper virtually conceded that
the expansion of corps jurisdiction was legally supportable, but it em-
phasized the attendant practical problems. Corps opponents of expanded
jurisdiction thought the costs of administration"9 and compensable tak-
ings120 would be significant. They also anticipated problems of overlap-
for the protection of the entire ecosystems dependent upon unpolluted and undisturbed waters, rather
than just that part arbitrarily delineated by mean high water."
117. Complaint, NRDC v. Callaway, Civ. No. 74-1242 (D.D.C., Aug. 16, 1974).
118. Letter, with attached position paper, from Howard H. "Bo" Callaway, Secretary of the
Army, to Roy L. Ash, Director, OMB (Feb. 5, 1975).
119. "The major problem...is one of available resources." An "estimated 1,750 additional per-
sonnel and $53 million [annual allocation would be required] to administer an expanded program."
120. The position paper, id., presents the secretary's position on incidental costs of possible com-
pensable takings as follows: Federal regulation under the dominant federal navigational servitude
requires no compensation to the affected landowners. See, e.g., United States v. Rands, 389 U.S. 121
(1967). "The safety of the servitude is left behind, however, when the mean high-water mark is
crossed." Although mostot recent state court decisions have upheld state wetland legislation and
regulation even when the property involved had no alternate use [citing, e.g., Potomac Sand and
Gravel Co. v. Mandell, 266 Md. 358, 293 A.2d 241 (1972), cert. denied, 409 U.S. 1040 (1972); Just v.
Marinette County, 56 Wis. 2d 7, 17, 201 N.W.2d 761, 768 (1972); Turnpike Realty Co. v. Town of
Dedham, 284 N.E.2d 891 (Mass. 1972), cert. denied, 409 U.S. 1108 (1972)].. theree are decisions
within the last five years...that have held such prohibitions are, in fact, takings" (citing, e.g.,
MacGibbons v. Board of Appeals, 356 Mass. 635, 255 N.E.2d 347 (1970); Maine v. Johnson, 265
A.2d 711 (Me. 1970)). Even if the trend of the newer line of state police power wetlands cases con-
tinued, this favorable judicial attitude with respect to state regulations might not be applied to federal
regulation under the commerce clause. "While it seems that the same rationale would apply to federal
action under the analogous commerce power, recent federal cases demonstrate a reluctance to address
the issue." Position paper attached to letter, supra note 118. See notes 276-324 infra and text at same
for discussion of these issues.
194 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
ping jurisdiction: (1) that the program could have unintended land use
consequences-"back-door land-use planning";'2' (2) that some states
were already regulating wetlands;'22 (3) that the program would be incon-
sistent with federal policy to encourage state administration;'23 and (4)
that the program would conflict with other federal agency authority.'24
Then the U.S. District Court for the District of Columbia decided, on
March 27, 1975, that Congress, by its definition of "navigable waters" in
the Water Act, "asserted federal jurisdiction over the nation's waters to
the maximum extent permissible under the Commerce Clause of the Con-
stitution. Accordingly, as used in the Water Act, the term is not limited to
the traditional tests of navigability"l25 and the court ordered the corps to
revoke parts of its April 3, 1974, regulations and publish new ones.
The proposed regulations, published May 6, 1975, presented four alter-
natives for public review and comment.'26 The corps also issued an ex-
planatory press release containing such provocative statements as the
Under some of the proposed regulations, Federal permits may be required
by the rancher who wants to enlarge his stock pond, or the farmer who
wants to deepen an irrigation ditch or plow a field, or the mountaineer who
wants to protect his land against stream erosion.
Under the broad interpretation of the 1972 FWPCA [Water Act] Amend-
ments, millions of people may be presently violating the law. Convicted of-
fenders may be subject to fines of up to $25,000 a day and one year im-
121. "A change in regulatory jurisdiction... would result in a significant change in the Administra-
tion's present land use planning program as envisioned by proposed land use planning legislation and
the Coastal Zone Management Act." Letter, supra note 118. In a letter to the Washington Post, Maj.
Gen. J. W. Morris, Director of Civil Works Office of the Chief of Engineers, referred to the Post's
June 26, 1975, editorial, which expressed concern "about federal involvement in land-use decisions
that can best be made by state and local governments." Morris explained that "we of the U.S. Army
Corps of Engineers question if the public wants land-use control exercised through an expanded
federal water quality permit program, especially one which does not provide for prior land-use plan-
ning. This, quite frankly, is the substantive Section 404 issue and not whether wetlands should be pro-
tected as your earlier editorial [Wetlands and the Corps of Engineers] portrayed."
"The magnitude of the court-ordered expanded permit program could increase the Corps jurisdic-
tion to more than 3 /2 million miles of rivers and adjacent areas, and along some 2 million miles of
lake shoreline." Washington Post, July 7, 1975, at A-23, col. 5.
122. "With respect to those areas above the mean high water mark, there is already extensive state
regulation." Position paper attached to letter, supra note 118.
123. Other existing federal legislation encourages a major state role, e.g., (1) the Coastal Zone
Management Act grant-in-aid program and (2) the EPA's permit responsibility under the Water Act,
implementation of which can be assumed by the states. "In light of present extensive state regulation
and the Coastal Zone Management Act, which encourages state participation, it seems disingenuous
to find that Congress intended to expand the Corps' jurisdiction without a delegation authority
similar to EPA's." Letter, supra note 118.
124. The program "would also bring the activities of other federal agencies, such as the Depart-
ment of the Agriculture Soil Conservation Service under the review authority of the Department of
the Army." Id.
125. Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).
126. Proposed regulations to supersede portions of 33 C.F.R. pt. 209, 40 Fed. Reg. 19,766 (1975).
No. 2 COASTAL LAND MANAGEMENT 195
prisonment. These persons could also be required to remove any fill
material or structures placed without a permit in or on waters of the United
The effect was predictable. Senator Russell Long of Louisiana ex-
pressed grave concern about this "ill-conceived, judge made extension of
the law," explaining that:
Such action would ... likely reach as far as the farmer who needs to dig an
irrigation ditch or plow a field.... All states would be seriously affected by
these new proposals. However, my state would be devastated because of its
unique position at the foot of a national watershed.... I would sincerely
hope that you share this view to the extent of amending the law so as to
make it clear that the excesses described above were not the intent of Con-
The rhetoric escalated. EPA administrator Russell Train wrote the
corps, noting "the extreme importance of section 404 as the primary
mechanism to protect America's valuable wetland resources" and deplor-
ing the public misunderstanding as being "directly attributable to the
seriously inaccurate and misleading press release issued by the Corps at the
time the regulations were published.... We are particularly concerned
that the false impression that farmers must obtain permits whenever they
plow a field be corrected."'29 Many environmental groups also joined
forces to score the corps for its "scare campaign": "Instead of focusing
on the environmentally protective aspects of the new regulations ... the
Corps has tried to alarm many persons who will not have to obtain per-
The "scare" was not limited to farmers and ranchers. The New York
Times reported: "In addition to farmers and ranchers, a spokesman for
the corps said that the strongest proposal could also force some
homeowners and golf course greenskeepers to get Federal permission to
fill a backyard swimming pool or construct a new sand trap."'"3 One
newspaper editorial described the corps' tactics as a "patently cynical in-
terpretation of a court ruling": "The Corps' shameful performance in this
127. News Release, U.S. Army Corps of Engineers, Jacksonville District (May 6, 1975).
128. Letter from Sen. Russell B. Long to Sen. Jennings Randolph, Chairman, Senate Public
Works Committee (May 14, 1975).
129. Letter from Russell E. Train, Administrator, EPA, to Lt. Gen. William C. Gribble, Jr., Chief
of Engineers, Army Corps of Engineers (May 16, 1975).
130. News Release, May 16, 1975, jointly issued by Natural Resources Defense Council, National
Wildlife Federation, Environmental Defense Fund, Sierra Club, Environmental Policy Center,
American Rivers Conservation Council, Friends of the Earth, Wilderness Society, Izaak Walton
League, National Parks and Conservation Association; see also Daniel E. Boxer, Every Pond and
Puddle-or, How Far Can the Army Corps [of Engineers] Stretch the Intent of Congress, 9 Nat.
Resources Law. 467 (1976).
131. N.Y. Times, May 9, 1975, as quoted in News Release, supra note 130.
196 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
matter illustrates perfectly why the agency is held in such disrepute by a
broad spectrum of the public."'2
The corps' chief of engineers also wrote Florida Governor Reubin
Askew highlighting the far-reaching impact of NRDC v. Callaway on
federal-state relationships and its "impact on you and the people of your
state.,"' Governor Askew, not misled by the corps, replied, adding to his
appreciation for the letter:
It is unfortunate that ... your release stated that ... federal permits may
be required by the rancher who wants to enlarge his stock pond, or the
farmer who wants to deepen an irrigation ditch or plow a field, or the
mountaineer who wants to protect his land against stream erosion. This
statement, taken out of context and blown out of proportion, has ob-
fuscated the real importance and significance of your new responsibilities.
These responsibilities relate, I believe, to the protection of our nation's ir-
replaceable natural wetlands so important to water quality and quantity,
wildlife, fisheries, and outdoor recreation.'3
The state of Florida not only intervened on behalf of the plaintiffs in
NRDC v. Callaway, "5 but the governor and cabinet also sent a resolution
to Washington supporting the "broadest possible constitutional inter-
pretation" of corps regulatory authority under the Water Act "in order to
afford proper protection to Florida's vital wetlands.""1 Why, in light of
the far-reaching effects Callaway will have on federal-state relationships
and on many Florida citizens, did the executive branch of government in
Florida favor an extension of federal jurisdiction? One rational explana-
tion is that Florida has many endangered wetlands with enormously
valuable natural functions,'37 and that the corps' section 404 program may
be "the primary mechanism to protect America's valuable wetlands
resources.""3 This answer is an insufficient explanation of why Florida
would push for such a strong federal role. The real explanation probably
lies in the potentialities of the Water Act and the weaknesses of Florida's
132. Detroit Free Press, May 15, 1975, at 8-A, col. 1.
133. Letter from Lt. Gen. W. C. Gribble, Jr., Chief of Engineers, Army Corps of Engineers, to
Gov. Reubin Askew (May 3, 1975).
134. Letter from Gov. Reubin Askew, to Lt. Gen. W. C. Gribble, Jr., Chief of Engineers, Army
Corps of Engineers (May 13, 1975).
135. Motion to Intervene, NRDC v. Callaway, Civ. No. 74-1242 (Jan. 17, 1975).
136. Governor and Cabinet, State of Florida, Resolution (Jan. 21, 1975).
137. The resolution (id.) desired that the 404 conflict be resolved "in favor of the broadest pro-
tection for Florida's wetlands." The executive also believed Floridians would be harmed in several
ways by the corps' refusal to issue permits for discharges above the mean high water line, including
losing their "opportunities to influence decisions regarding the quality of the state's marine environ-
ment" and, with respect to "Floridians desiring to develop lands above the mean high water line
which activities will result in discharges, [being] placed in the position of having to violate the
FWPCA which requires permits for such discharges and which is enforced by EPA." Memorandum,
Florida Office of Attorney General (undated).
138. Letter, supra note 129.
No. 2 COASTAL LAND MANAGEMENT 197
Environmental Land and Water Management Act of 1972 and related
legislation.139 The act's 5 percent acreage limitation140 sharply curtailed its
effectiveness in protecting Florida's wetlands. Despite repeated legislative
efforts, the Florida legislature had not dealt adequately with wetlands pro-
The Water Act's state certification requirement gives Florida some say
in the wetlands program. Section 404 of the Water Act establishes a permit
system for the discharge of dredged or fill material, the permits to be
issued by the Corps of Engineers, subject to certain EPA guidelines and
restrictions.'42 However, under section 401, the applicant for the permit
must provide the corps "a certification from the State in which the
discharge originates or will originate ... that any such discharge will com-
ply with the applicable provision of Sections 301, 302, 303, 306, and 307,"
and the permit may not be issued if the state denies the certification.'"4
Thus, Florida would have as comprehensive a wetlands protection pro-
gram as the corps chose to implement while retaining a veto power over ac-
tivities regulated by section 404. Florida would not have total control
(even if it issued the state certification, the corps could deny the permit),
but loss of total control might not be objectionable because state executive
policy seems favorable to wetlands protection.' i Further, Florida officials
may have anticipated the eventual amendment to the Water Act, which
now allows qualifying states to assume the section 404 regulatory authori-
ty, similar to the provision for assuming responsibility under the National
Pollutant Discharge Elimination System (NPDES) program. 1
The corps promulgated regulations in response to Callaway on June 25,
1975.146 The area regulated was phased over three periods, reaching, by
July 1, 1977, all of the area of "navigable waters ... of the United
139. Fla. Stat., Ann., ch. 380 (West 1974 & Cum. Supp. 1978). Based upon interviews with several
state officials and agency representatives, I concluded that, as often happens, well-informed staff
members of environmental agencies simply saw the section 404 program as an opportunity to fill the
regulatory void at the state level and were able to get the Department of Pollution Control (now the
Department of Environmental Regulation) to intervene and get favorable action at the cabinet level.
Some cabinet members were persuaded by the difficulties some developers were having because of
possible violations of the Water Act (see note 137 supra) and other members were persuaded by the
environmental protection potentialities. The federalism issue received little, if any, attention.
140. Id. 380.05(17).
141. Interview with Joseph W. Landers, Jr., now Secretary, Department of Environmental Regula-
tion, in Tallahassee, Fla. (Jan. 20, 1976).
142. 404(b) 33 U.S.C.A. 1344(b).
143. 401(a)(1), 33 U.S.C.A. 1341(a)(1). The state may be deemed to have waived its certifica-
tion privilege if it "fails or refuses to act on a request for certification, within a reasonable period of
time (which shall not exceed one year)." Id.
144. See notes 134-39 supra and text at same.
145. Water Act 404(g), 33 U.S.C.A. 1344(g).
146. 40 Fed. Reg. 31,320-39 (July 25, 1975); see also 42 Fed. Reg. 37,127 (1977) for the corps'
discussion of current regulations.
198 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
States ... to the maximum extent permissible under the commerce
2. Legislative Efforts to Modify Section 404 Boundaries
Although efforts were subsequently made to get Congress to reduce the
geographic coverage of the section 404 program-including an early effort
by Representative Breaux of Louisiana that would have restricted jurisdic-
tion to the traditional RHA boundaries'"4 (a result one environmental
spokesman estimated would have left about 85 percent, or 60 million
acres, of the nation's wetlands open to destruction)'49-Congress allowed
the expansive geographic coverage to stand in the Clean Water Act of
1977. Thus, the federal role in wetlands regulations has expanded greatly.
Although much of this expansion has resulted from expansion of
geographic jurisdiction, much has also resulted from expansion of the
scope of jurisdiction.
D. Substantive Standards and Criteria to Guide Permit Decisions
Under Section 10 and Section 404
1. Historical Sketch
The Corps of Engineers applies a broad "public interest" standard in
deciding on section 10 and section 404 permit applications:
All factors which may be relevant to the proposal must be considered;
among those are conservation, economics, aesthetics, general environmen-
tal concerns, historic values, fish and wildlife values, flood damage preven-
tion, land use, navigation, recreation, water supply, water quality, energy
needs, safety, food production, and, in general, the needs and welfare of
the people. No permit will be granted unless its issuance is found to be in the
The legislative history of the Rivers and Harbors Act of 1899 supports
the proposition that its principal, and possibly exclusive, purpose was "to
assure the maintenance of navigation on navigable waters of the United
States, and to keep the interstate waterways clear from unreasonable
obstructions and structures."5"' Predecessor acts with provisions similar
to section 10 of the 1899 act were apparently passed in congressional
response to the Supreme Court's rejection, in Willamette Iron Bridge Co.
147. See Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).
148. See House Panel Okays Water Act Changes Limiting Dredge, Fill Regulation,  6 Envir.
Rep.-Cur. Dev. (BNA) 2105 (discussing H.R. 9560, a bill approved by the House Public Works and
Transportation Committee). See also Lee Evan Caplin, Is Congress Protecting Our Water? The Con-
troversy over Section 404, Federal Water Pollution Control Act Amendments of 1972, 31 U. Miami
L. Rev. 445 (1977), for full discussion of amendments suggested during the Ninety-fourth Congress.
149. House Panel Okays Changes, supra note 148.
150. 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. 320.4(a)).
151. Corps Memo, supra note 5, at 5 (citing Petterson v. Resor, 3 E.R.C. 1170 (D.C. Ore. 1972)).
B. ~F ~
COASTAL LAND MANAGEMENT
v. Hatch, of the notion of a common law of the United States that pro-
hibits "obstructions" in navigable waters.'2 In any event, until recently
the corps administered section 10 with primary emphasis on navigation ef-
fects,'" supporting its administrative policies with authorities ranging
from a 1909 attorney general opinion to court decisions such as Miami
Beach Jockey Club, Inc. v. Dern,"54 which ordered the lower court to con-
sider whether the proposed improvement would obstruct the navigable
capacity of the waterway rather than to consider the improvement's effect
upon adjacent homes.
Even if one accepts the proposition that the effect upon navigation was
originally the principal, or even exclusive, criterion for permit decisions
under section 10, it is also true, first, that the commerce power (even in
1899, and certainly as construed in recent years) would have supported
much broader regulation'5 and, second, that Congress could modify the
original substantive scope. The corps interpreted several statutes to have
broadened the substantive scope of its power. Principal among them were
the Fish and Wildlife Coordination Act,"56 the National Historic Preserva-
tion Act of 1966,'57 the National Environmental Policy Act of 1969, 8 the
Federal Water Pollution Control Act Amendments of 1972,159 the Coastal
Zone Management Act of 1972,'60 and the Marine Protection, Research
and Sanctuaries Act of 1972.'61
Gradually, the corps attempted to coordinate and harmonize its permit
responsibilities with the new legislation. For example, in 1967 the
secretaries of the army and the interior adopted a "Memorandum of
Understanding," which, although recognizing that the secretary of the
152. 125 U.S. 1, 8 (1888). See also United States v. Republic Steel Corp., 362 U.S. 482, 486 (1960);
Barker, supra note 51, at 111.
153. Corps Memo, supra note 5, at 16.
154. 86 F.2d 135, 136 (D.C. Cir. 1936). In 1909, the attorney general ruled that, in considering the
application for construction of a dolphin (a spar or buoy for mooring boats) off the coast of Santa
Barbara, California, incidental effects on a bathing beach or other reasons unrelated to navigable
capacity should be ignored. 27 Op. Att'y Gen. 285 (1909).
155. See notes 328-57 infra and text at same.
156. 16 U.S.C. 661-666c (1976).
157. 16 U.S.C. 470-470t (1976).
158. 42 U.S.C. 4321-4347 (1970 & Supp. V 1975).
159. 401(a)(l) of the Water Act requires the applicant to obtain certification that there will be
compliance with applicable federal or state water quality standards and effluent limitations as a pre-
requisite to obtaining a permit, 33 U.S.C.A. 1341(a)(1).
160. 16 U.S.C. 1451-1464 (1976). See 307(c)(3) (16 U.S.C. 1456(c)(3)) of the act, which pro-
vides an important incentive for a state's qualification of its coastal management program. After final
approval of the state's management program, the applicant for a federal permit "affecting land or
water uses in the coastal zone" must provide state certification "that the proposed activity complies
with the state's approved program and that such activity will be conducted in a manner consistent with
161. 16 U.S.C. 1431-1434 (1976). 302(f) (16 U.S.C. 1432(f)) provides that after an area has
been designated as a "marine sanctuary," activities may be conducted in such designated area only if
the secretary of commerce certifies "that the permitted activity is consistent with the purposes of [the
Act] and can be carried out within the regulations promulgated."
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
army retained ultimate responsibility for decisions on permit applications,
moved to implement the Fish and Wildlife Coordination Act requirement
that the corps obtain the advice of the secretary of the interior as to the im-
pact of the proposed dredging, filling, and excavation activities on fish
and wildlife resources. 62 On December 18, 1968, the corps formally prom-
ulgated standards applicable to permits for work in navigable waters by
setting forth a new "public interest review," which provided:
The decision as to whether a permit will be issued must rest on an evaluation
of all relevant factors, including the effect of the proposed work on naviga-
tion, fish and wildlife, conservation, pollution, aesthetics, ecology, and the
general public interest. 63
Zabel v. Tabb is the well-known case that considered the corps' applica-
tion of standards other than navigation.'64 However, several other issues
that are discussed below were also raised in the Zabel litigation.
In the early 1960s Alfred Zabel and David Russell, owners and
operators of a trailer park fronting on Boca Ciega Bay, near St.
Petersburg, Florida, petitioned the Pinellas County Water and Navigation
Control Authority for permission to dredge and fill approximately 11.5
acres of submerged land. The filled land was to be used to enlarge their
trailer park and to provide additional waterfront trailer lots.'65 Since the
submerged land was navigable for both federal and state regulatory pur-
poses,'66 the navigation authority was only one of several governmental
agencies from which permits were required.
The efforts of Zabel and Russell to get all of their required permits will
surely be recorded as one of the major case studies in the evolution of
federal and Florida coastal regulatory law. When their predecessors in title
purchased the submerged land, the title carried an express state statutory
right to fill, subject only to reasonable state police power regulation and
other retained regulatory power incident to Florida's public trust doc-
trine.'67 Generally, public policy in Florida was not opposed to such
dredging and filling when Zabel and Russell purchased this bottom
162. Corps Memo, supra note 5, at 17. See also appendixes to the corps' rules and regulations, 40
Fed. Reg. 31,339-44 (1975), for memoranda of agreement with U.S. Coast Guard and the secretary of
163. 33 C.F.R. 209.120(d) (1968) (emphasis added). See, for latest regulations, 42 Fed. Reg.
37,136 (1977) (to be codified in 33 C.F.R. 320.4(a)).
164. 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971). The Fifth Circuit decision
overruled the lower federal court's decision in favor of Zabel and Russell. 296 F. Supp. 764 (M.D.
Fla. 1969). Related state court cases are: Zabel v. Pinellas County Water & Navigation Control Auth.,
154 So. 2d 181 (Fla. 2d Dist. Ct. App. 1963); Zabel v. Pinellas County Water & Navigation Control
Auth., 171 So. 2d 376 (Fla. 1965).
165. 154 So; 2d at 182-83.
166. See 430 F.2d at 201 and notes 29-93 supra and text at same for discussion of "navigability"
for federal regulatory purposes under the RHA.
167. See Zabel v. Pinellas County Water & Navigation Control Auth., 171 So. 2d 376, 379 (Fla.
COASTAL LAND MANAGEMENT
land.'" Before the proposal to fill this 11.5 acres, they had already made
one fill, and considerable filling and dredging had been done along neigh-
boring portions of the bay.'"9 Nevertheless, about a decade later, after
eventual success in the Florida Supreme Court with regard to state and
local permits,'"7 Zabel and Russell suffered final defeat in the United
States Supreme Court. Certiorari was denied from the final judgment of
the Fifth Circuit court of appeals, which upheld the corps' denial of a sec-
tion 10 dredge and fill permit.'7'
The Zabel litigation raises many legal issues. The issue relevant to the
substantive scope of the corps' regulatory jurisdiction is "whether the
Secretary of the Army can refuse to authorize a dredge and fill project in
navigable waters for factually substantial ecological reasons even though
the project would not interfere with navigation, flood control, or the pro-
duction of power."'72 The Fifth Circuit said yes: "[t]he Secretary must
weigh the effect a dredge and fill project will have on conservation before
he issues a permit.""' After answering affirmatively two intermediate
questions-whether Congress had power to prohibit for ecological reasons
a project on private riparian submerged land in navigable waters, and
whether Congress had committed that power to the secretary of the
army-the court explained its reason for agreeing "that the Corps of
Engineers does not have to wear navigational blinders when it considers a
permit request."'74 The court relied on two judicial decisions to shore up
its conclusion that governmentaltl agencies in executing a particular stat-
utory responsibility ordinarily are required to take heed of, sometimes ef-
fectuate and other times not thwart other valid statutory governmental
policies."'75 It traced the legislative history and purpose of major en-
vironmental legislation, giving particular emphasis to the importance of
the Fish and Wildlife Coordination Act, with mention of the incidental
relevance of the National Environmental Policy Act of 1969.'76 The court
168. See Luther J. Carter, The Florida Experience: Land and Water Policy in a Growth State 57-81
(Baltimore: Johns Hopkins University Press, 1974), for the history of the "reclaiming" of Florida
169. See Zabel v. Pinellas County Water & Navigation Control Auth., 154 So. 2d 181, 183 (Fla. 2d
Dist. Ct. App. 1963).
170. Zabelv. Pinellas County Water & Navigation Control Auth., 171 So. 2d 376 (Fla. 1965).
171. Zabel v. Tabb, 430 F.2d 199(5th Cir. 1970), cert. denied, 401 U.S. 910(1971).
172. Id. at203.
173. Id. at 211. The court was clearly aware that this was a legal issue of first impression and one of
"spectacular public importance."
174. Id. at 208.
175. Id. at 209. United States ex rel. Greathouse v. Dern, 289 U.S. 352 (1933), upheld a lower
court's refusal to issue mandamus because of reasons which presumably could have included more
than effect on navigation. Citizens Comm. for the Hudson Valley v. Volpe, 302 F. Supp. 1083
(S.D.N.Y. 1969), aff'd, 425 F.2d 97 (2d Cir.), cert. denied, 400 U.S. 949 (1970), held that the corps
must consider a fill project in the context of the federal jurisdiction of the secretary of transportation
to approve an expressway project.
202 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
also recognized the importance of administrative interpretation, citing the
Memorandum of Understanding between the secretary of the army and
the secretary of the interior which provided for coordination.'"7 Thus, the
court found from all three branches an unequivocal intention that the sec-
retary weigh the effect on conservation before issuing a permit."78
The Fifth Circuit Zabel opinion resulted in a lot of law review commen-
tary, most but not all of which was favorable.'79 One thoughtful note
disagreed with the conclusion that the secretary of the army and Corps of
Engineers had authority to deny dredge and fill permits for ecological rea-
sons, suggesting that
[t]he court confused the plenary power of Congress over interstate com-
merce with the delegated authority of the Corps and the Secretary, and,
while studiously avoiding a search for delegation of authority, looked in-
stead to national policy expressed in reports and acts of Congress as the
basis for the Corps' new authority."0
Admittedly, the effect of the Zabel opinion on the substantive scope of
the corps' section 10 permit jurisdiction does raise the important question
whether the combination of broad criteria, the benefit-detriment test with
its broad discretion, and the opportunity for selective enforcement might
leave the corps with too much uncontrolled discretion. Criticism of the
scope of the corps' substantive powers under section 10 may be misplaced,
however, if it dwells on either delegation of legislative power or even ade-
quacy of legislative standards. More analysis is needed before condemning
the Zabel result on delegation grounds.
177. Id. at 210-11 (citing the Memorandum of Understanding at 210 n.21).
178. Id. at211.
179. See, e.g., Recent Developments, Environmental Law: Ecology Held Valid Criterion for Deny-
ing Dredge and Fill Permit Under Section 10, Rivers and Hafbors Act of 1899, 1970 Duke L.J. 1239;
Comment, Environmental Law-Landfill Permit Requirements-the Corps of Engineers Does an
About Face, 59 Ky. L.J. 748 (1971); Note, Corps of Engineers-New Guardians of Ecology, 31 La. L.
Rev. 666 (1971); Casenotes, Environmental Law: Ecological Considerations in Granting Permits
Under the Rivers and Harbours Act, 17 Loy. L. Rev. 749 (1970-71); Note, Environmental
Law-Private Cause of Action Under the Rivers and Harbors Appropriation Act of 1899 for Injury
to the Ecology of Navigable Waters, 50 Tex. L. Rev. 1255 (1972); Note, Environmental Law-Denial
of Dredge and Fill Permit Under Rivers and Harbors Appropriation Act of 1899 on Ecological
Grounds, 19 U. Kan. L. Rev. 539 (1971); Recent Developments, Environmental Law, 16 Vill. L. Rev.
180. 31 La. L. Rev. at 667. The Duke comment also focused on this problem, noting that
nothingig in the Act suggests criteria to be used by the Secretary in granting or withholding his
authorization." 1970 Duke L.J. at 1240. The Zabel opinion, it was noted, "acknowledged the uncer-
tainty generated by Section 10 and the failure of the case law adequately to define its limits." Id. at
1244. The act was interpreted as providing a "flat prohibition" against the "building of structures
and the excavating and filling in navigable waters" subject only to the Secretary of the Army's
authorization. Id. (citing 430 F.2d at 207). The writer criticized the court for leaving its rationale
unclear: "the court failed to recognize the two possible interpretations of these Acts: that the
Secretary, while required to authorize a navigationally-acceptable project, must consider ecology in
choosing which plan will be permitted, or alternatively that the Secretary, for ecological reasons, may
refuse to issue the permit altogether, regardless of navigational considerations." Id. at 1246.
COASTAL LAND MANAGEMENT
The nondelegation doctrine in federal administrative law has virtually
been abandoned by the United States Supreme Court.'8" Delegated power
without meaningful standards is regularly upheld.'82 More fruitful inquiry
lies in asking (1) whether corps procedures under section 10 furnish ade-
quate safeguards to those who are affected by administrative action; and
(2) whether the corps, through rule making, has adequately specified ad-
ministrative standards to control its permit decisions.83 Kenneth Culp
Davis summarizes the advantages of such an approach to control of
discretion as follows:
When an administrator is making a discretionary determination affecting
a private party, standards which have been adopted through administrative
rule-making are just as effective in confining and guiding the discretionary
determination as would be standards stated in the statute. They are not only
as effective but in one important aspect they are better. The weakness of a
judicial requirement of statutory standards is that legislators are often
unable or unwilling to supply them. The strength of a judicial requirement
of administrative standards is that, with the right kind of judicial prodding,
the administrators can be expected to supply them.'"
The regulatory field of environmental protection and land management
may particularly require acceptance of this more liberal view of delegation
combined with more effective controls over administrative discretion.
Although broad objectives and policies may be susceptible to congres-
sional specification, it is doubtful that Congress could properly detail the
181. See generally Kenneth Culp Davis, Administrative Law Treatise, 1970 Supp., 2.00, at 40 et
seq. (St. Paul: West Publishing Co., 1971).
182. Davis discusses three cases (out of "perhaps three hundred cases") in which he believes "the
whole policy of the government on the particular subject was made by the agency without guidance
from Congress." United States v. Southwestern Cable Co., 392 U.S. 157 (1968) (upholding the CATV
regulations of the FCC); American Trucking Ass'ns, Inc. v. Atchison, T. & S.F. Ry., 387 U.S. 397
(1967) (upholding the ICC's "piggyback" regulations); and Permian Basin Area Rate Cases, 390 U.S.
747 (1968) (upholding the FPC's area price fixing for natural gas). See generally Davis, supra note
181, 2.00-2, at 42-46.
183. Five principal steps for altering the nondelegation doctrine in favor of a system of protection
against unnecessary and uncontrolled power have been outlined by Davis:
(a) the purpose of the non-delegation doctrine should no longer be either to prevent delegation
or to require meaningful statutory standards; the purpose should be the much deeper one of
protecting against unnecessary and uncontrolled discretionary power; (b) the exclusive focus
on standards should be shifted to an emphasis more on safeguards than on standards; (c) when
legislative bodies have failed to provide standards, the courts should not hold the delegation
unlawful but should require that the administrators must as rapidly as feasible supply the stan-
dards; (d) the non-delegation doctrine should gradually grow into a broad requirement extend-
ing beyond the subject of delegation-that officers with discretionary power must do about as
much as feasible to structure their discretion through appropriate safeguards and to confine
and guide their discretion through standards, principles, and rules; (e) the protection should
reach not merely delegated power but also such undelegated power as that of selective enforce-
Davis, supra note 181, 2.00-5, at 52.
184. Id. 2.00-5, at 57.
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
full range of values to be considered and the weighing process to be used in
deciding which competing values should predominate. Much of this detail
should be left to the implementing agency-in this case the Army Corps of
Engineers.185 The agency, urged by judicial prodding, should move ex-
peditiously to set forth the standards and criteria by which it will make its
decisions. Professor Davis has noted a judicial trend in pushing agencies
toward specification of standards,"86 and he believes that if the trend con-
tinues, it "will merge with the concept of due process and may perhaps
move from a constitutional base to a common-law base.'"'8
The important questions, then, are whether the corps' permit policies,
practices, and procedures are adequate to prevent abuse of its wide discre-
tion, and whether a federal agency is the optimum agency, in terms of
democratic ideals and land use-planning capacity, to make decisions of
the kind now assigned to the corps. These questions will be considered'"
following more discussion of the evolving section 10 and 404 programs.
2. Administration of Sections 10 and 404
The previous paragraphs shows how the corps' wetlands programs have
expanded into areas previously regulated only by state or local govern-
ments, if regulated at all. Earlier corps regulatory programs occurred in
areas where the public had long acquaintance with the superior public
need in navigation. The navigation servitude,'" with its deep historical
roots, was understood and reasonably accepted. Federal regulation of
land use beyond such historically accepted areas, however, places new
stresses on the legal order. Expectations will be frustrated, and uncertainty
may prevail. Accordingly, corps procedures that functioned well in the
past should not be accepted uncritically but should be reviewed in light of
the expanded program.
The procedure for obtaining a permit is as follows. A developer wishing
to undertake a development activity requiring a section 10 or 404 corps
permit applies to the relevant district engineer pursuant to the detailed
procedures outlined in the applicable corps regulations.190 The district
185. To accept the theoretical argument that the implementing agency should develop the details of
policies and procedures is not necessarily to accept, however, that the Corps of Engineers is the proper
agency to implement the broad functions now imposed by the Rivers and Harbors Act of 1899 and the
1972 Amendments to the Federal Water Pollution Control Act. See notes 638-39 infra and text at
same discussing amendments made to the Water Act allowing some state assumption of this role.
186. See, e.g., Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 597 (D.C. Cir.
1971), in which the court said: "We stand on the threshold of a new era in the history of the long and
fruitful collaboration of administrative agencies and reviewing courts."
187. Davis, supra note 181, 2.00-6, at 58.
188. See notes 316-24, 638-40 infra and text at same. Cf. also Taylor v. District Eng'r, U.S. Army
Corps of Eng'rs, 567 F.2d 1332 (5th Cir. 1978), discussed at note 219 infra.
189. See notes 277-89 infra and text at same.
190. 42 Fed. Reg. 37,149 (1977) (to be codified in 33 C.F.R. 325).
COASTAL LAND MANAGEMENT
engineer, after ensuring that the application is complete, issues a public
notice'91 that includes, inter alia, an explanation of the corps' public in-
terest criteria and other factors on which decisions are based.'2 A public
hearing may or may not be provided."93 After all required procedures are
complied with, "the District Engineer will determine in accordance with
the record and applicable regulations whether or not the permit should be
issued.""' His decision may be final, or, in some cases, he may have to
submit the application and a statement of findings to the official author-
ized to make the final decision. The final decision must include a state-
ment of findings. If the final decision is to issue a permit, a draft permit
will be submitted to the applicant for acceptance of the conditions of the
permit; if the decision is to deny, the applicant will be given written
reasons for the denial.
The procedures vary depending on the type of development activity for
which permission is requested. Assume, for example, that a developer
wishes to discharge substantial dredged or fill material into navigable
waters. The application must include detailed information, such as the
source and type of material, the method of disposal of it, and the location
of the disposal site. This activity also requires certification under section
401 of the Water Act'95 and, depending upon the magnitude and nature of
the proposal, may require an environmental impact statement.196 Notice
of the proposed application must go to numerous state and federal agen-
cies that, pursuant to other statutes, may have a duty to comment upon
the proposed activity.197 Also, upon request of a person who has an af-
fected interest in the issuance of the permit, the district engineer must ar-
range a public hearing for permits for discharge of dredged or fill
The corps regulations provide that the final decision will be based on an
informal kind of cost-benefit analysis.'99 Therefore, it is important to
191. 42 Fed. Reg. 37,150(1977) (to be codified in 33 C.F.R. 325.2(a)(2)).
192. 42 Fed. Reg. 37,152 (1977) (to be codified in 33 C.F.R. 325.3(b)).
193. 42 Fed. Reg. 37,150 (1977) (to be codified in 33 C.F.R. 325.2(a)(5)). Part 327 of 33 C.F.R.
requires, inter alia, that requestsss for a public hearing...shall be granted, unless the District
Engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be
served by a hearing. The District Engineer will make such a determination in writing, and com-
municate his reasons therefore to all requesting parties." Id. at 37,160 (to be codified in 33 C.F.R.
327.4(b)). See Cooper v. Wisdom, 440 F. Supp. 1027 (S.D. Fla. 1977), where the court held that
whether the corps' duty to provide a public hearing was discretionary or mandatory, the particular
corps permit to dredge in Biscayne Bay was invalid because the district engineer failed to comply with
the applicable corps regulations.
194. Id. (to be codified in33 C.F.R. 325.2(a)(6)).
195. 42 Fed. Reg. 37,137 (to be codified in 33 C.F.R. 320.4(d)).
196. 42 Fed. Reg. 37,152 (to be codified in 33 C.F.R. 325.4). See also National Environmental
Policy Act of 1969, 102(2)(c), 42 U.S.C. 4332(2)(c) (1970).
197. 42 Fed. Reg. 37,152 (1977) (to be codified in 33 C.F.R. 325.3(c)).
198. 42 Fed. Reg. 37,160 (1977) (to be codified in 33 C.F.R. 327.4(b)). See Cooper v. Wisdom,
440 F. Supp. 1027 (S.D. Fla. 1977).
199. 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. 320.4(a)(1)).
206 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
understand what standards and criteria will guide the final decision. For
illustrative purposes, assume that the application is to discharge dredged
or fill material into a wetlandsns considered to perform functions impor-
tant to the public interest."200 The decision maker must ultimately find
that two standards have been met: (1) that the permit's issuance is found
to be in the public interest;20" and (2) "that the benefits of the proposed
alteration outweigh the damage to the wetlands resource and the proposed
alteration is necessary to realize those benefits."202
The factors that the decision maker must weigh will have been obtained
from the applicant, the relevant state and federal agencies, the written and
oral responses from the public, as well as any other relevant information
that may be available. The state, of course, will have already had a first-
level veto opportunity since its certification under section 401 of the Water
Act was required.203 Moreover, two other means are available for giving
weight to state public interest factors. First, if the state has a qualified
coastal zone management program, no permit can be issued unless the
proposed activity complies with the program or the secretary of commerce
"finds that the proposed activity is consistent with the objectives of the
Coastal Zone Management Act of 1972 or is otherwise necessary in the in-
terest of national security."204 Second, any adopted state, regional, or
local land use classification, determination, or policies applicable to the
disposal site are presumed to reflect the local factors of public interest and
must be considered by the corps decision maker.205 The general criteria
that the decision maker must consider in every application include:
(i) the relative extent of the public and private need for the proposed
structure or work;
(ii) the desirability of using appropriate alternative locations and
methods to accomplish the objective of the proposed structure or work;
(iii) the extent and permanence of the beneficial and/or detrimental ef-
fects which the proposed structure or work may have on the public and
private uses to which the area is suited; and
(iv) the probable impact of each proposal in relation to the cumulative
effect created by other existing and anticipated structures or work in the
Finally, with respect to the particular wetland disposal site, the district
engineer's evaluation of whether an alteration is necessary "shall consider
200. Id. (to be codified in 33 C.F.R. 320.4(b)(2)).
201. Id. (to be codified in 33 C.F.R. 320.4(a)(1)).
202. 42 Fed. Reg. 37,137 (1977) (to be codified in 33 C.F.R. 320.4(b)(4)).
203. Id. (to be codified in 33 C.F.R. 320.4(d); Water Act 401(a)(1), 33 U.S.C.A. 1341(a)(1).
204. 42 Fed. Reg. 37,138 (1977) (to be codified in 33 C.F.R. 320.4(h)).
205. Id. (to be codified in 33 C.F.R. 320.4(j)(2)).
206. 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. 320.4(a)(2)).
COASTAL LAND MANAGEMENT
whether the proposed activity is primarily dependent on being located in,
or in close proximity to the aquatic environment and whether feasible
alternative sites are available."207
The general permit20' is one technique for simplifying administration.
This concept, which was given legislative status in the Clean Water Act of
1977209 "is intended to eliminate unnecessary review of minor activities,
and to focus the attention of the Corps on those activities that require in-
dividual review."21' General permits, issuable for no longer than five years
and revocable, may be issued "on a State, regional, or nationwide
basis...if the Secretary determines that the activities.., are similar in
nature, will cause only minimal adverse environmental effects when per-
formed separately, and will have only minimal cumulative adverse effect
on the environment."2"
On July 17, 1977, the corps issued final rules2'2 for discharges of
dredged or fill material into certain smaller or minor waters of the United
States and certain specific activities involving the discharge of dredged or
fill material. The Clean Water Act of 1977 added specific exemptions for
many of the kinds of activities that had caused the earlier political uproar,
for example, "normal farming, silviculture, and ranching activities,"
unless the discharge is "incidental to any activity having as its purpose
bringing an area of the navigable waters into a use to which it was not
previously subject, where the flow or circulation of navigable waters may
be impaired or the reach of such waters be reduced."2'3
Procedural due process embodies our society's fundamental notions of
fairness, definable only in broad phrases such as "that which comports
with the deepest notions of what is fair and right and just."214 It is an
elusive concept,21' and its minimal requirements can be ascertained only
through a case-by-case analysis of "the nature of the governmental func-
tion involved and the substance of the private interest which is affected by
207. 42 Fed. Reg. 37,137 (1977) (to be codified in 33 C.F.R. 320.4(b)(4)).
208. 42 Fed. Reg. 37,145 (1977) (to be codified in 33 C.F.R. 323.3(c)).
209. Water Act 404(e), 33 U.S.C.A. 1344(e).
210. See supplementary information, proposed Corps of Engineers rules for discharges of dredged
or fill material into U.S. waters, 42 Fed. Reg. 24,756 (1977).
211. Water Act 404(e), 33 U.S.C.A. 1344(e).
212. 42 Fed. Reg. 37,146 (1977) (to be codified in 33 C.F.R. 323.4-3).
213. Water Act 404(0, 33 U.S.C.A. 1344(f).
214. Edwin S. Corwin, ed., The Constitution of the United States of America: Analysis and Inter-
pretation 1137 (7th ed. Washington, D.C.: Government Printing Office, 1972) (quoting from Justice
Frankfurter's dissenting opinion in Solesbee v. Balkcom, 339 U.S. 9, 16 (1950)).
215. "Its exact boundaries are undefinable, and its content varies according to specific factual con-
texts. ... [A]s a generalization, it can be said that due process embodies the differing rules of fair play,
which through the years, have become associated with differing types of proceedings." Hannah v.
Larche, 363 U.S. 420, 442 (1960). "The very nature of due process negates any concept of inflexible
procedures universally applicable to every imaginable situation." Arnett v. Kennedy, 416 U.S. 134,
155 (1974) (quoting Cafeteria Workers v. McElroy, 367 U.S. at 895).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
the governmental action,"'21 though notice and opportunity to be heard
are its most essential elements.217
The corps' procedures seem to meet minimal due process require-
ments.21" Notice to affected persons seems adequate, as does the oppor-
tunity for affected persons to be heard. Although trial-type hearings are
normally required for resolving disputed issues of adjudicativee fact,"
trials are unnecessary for resolving "legislative fact" questions, that is,
"the kind of issue involving expert opinions and forecasts, which cannot
be decisively resolved by testimony."219 The corps' determination of "the
public interest" is essentially a process of legislative fact finding, deter-
mining "general facts which help the tribunal decide questions of law and
policy and discretion."220 The corps' procedures seem adequate for these
To the extent that particular wetlands are thought indispensably
valuable to the public interest, the degree of corps discretion seems wise.
The corps can streamline its permit procedures, coordinate well with all
relevant agencies and governments, and apply a reasonably impersonal,
technical expertise designed to license a wetland alteration only in excep-
tional cases. To the extent, however, that particular wetlands may be
valuable, but nevertheless dispensable when weighed against other over-
riding public needs, the corps may not be the optimum decision maker for
declaring the "public interest." I raise the following questions to indicate
that its procedures may yet be improved:
(1) Are the procedures well designed to promote efficient, expeditious
216. Escalera v. New York City Housing Auth., 425 F.2d 853, 861 (2d Cir. 1970), cert. denied, 400
U.S. 853 (1970) (citing Goldberg v. Kelly, 397 U.S. 254,263 (1970)).
217. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314(1950).
218. See generally, for discussion of adjudicativee facts," Kenneth Culp Davis, Administrative
Law Text 7.03 (3d ed. St. Paul: West Publishing Co., 1972); and id. at 164 (citing American
Airlines, Inc. v. Civil Aeronautics Bd., 359 F.2d 624, 633 (D.C. Cir. 1966), cert. denied, 385 U.S. 843
(1966)), for discussion of "legislative facts."
219. Cf., e.g., Taylor v. District Eng'r, U.S. Army Corps of Eng'rs, 567 F.2d 1332 (5th Cir. 1978),
where the court held that the particular corps procedures (33 C.F.R. 209.120 (1972)) easily satisfied
the requirements of due process, id. at 1338, and that the applicable scope of review is "whether or
not [the decision] was arbitrary, capricious or an abuse of discretion," id. at 1337, and not the
substantial evidence test. The Fifth Circuit nevertheless reversed and remanded to the district court
because of irregularities in the corps' processing of the application. "The decisions of the Corps more
often than not substantially affect the property rights and values of many people. In our attempt to
provide for the smooth operation of their application procedures, this Court has given to the Corps
decision-making powers which almost go totally unchecked. This was done under the impression that
the Corps would not abuse this freedom. The performance of the Corps in this particular application
process reflects the type of abuse which was certainly not envisioned in the formulation stage of the
role this Court would play with the Corps of Engineers. Certainly, if this type of performance was to
become of a routine nature, then it might well be time to reconsider en banc some of our earlier deci-
sions."Id. at 1340.
220. Id. at 160.
No. 2 COASTAL LAND MANAGEMENT 209
(2) Do the procedures assure that all relevant and competing values will
be considered, weighed, and will properly influence the final decision?
(3) Do corps regulations give clear notice of the substantive standards
to be applied, and are the standards specific enough to provide reasonable
control of administrative discretion?
These questions cannot be answered without understanding more about
the natural characteristics and functions of wetlands and their relationship
to other environmental, economic, and social needs of the public. These
scientific, policy questions are beyond the scope of this article, but I ex-
plore their legal aspects below.
E. Injunctions and Restoration Orders Under
Section 10 of the RHA
An effective regulatory program must include adequate sanctions and
enforcement powers. The Water Act and the RHA include both civil and
criminal penalties.22 The injunction, however, is one of the more effective
enforcement tools, especially against large businesses. Current corps
regulations make the injunction particularly effective. The district
engineer may issue cease and desist orders, and, upon noncompliance,
may immediately notify the local U.S. attorney, requesting that a tem-
porary restraining order, preliminary injunction, or both be obtained.222
A comprehensive evaluation of alternative sanctions and enforcement
powers is not undertaken here, but consideration of recent instances of
judicial enforcement of the RHA section 10 permit requirements help in
understanding the evolution of the federal role in coastal land regulation.
It also illustrates an effective enforcement technique that states may want
The RHA provides for injunctive relief in section 12: "the removal of
any structures or parts of structures erected in violation ... may be en-
forced by the injunction of any district court."223
Although section 12 is a technique for halting illegal activities and, in
appropriate cases, for requiring restoration of an altered wetland, some
explanation is needed of why section 12, which refers only to "struc-
tures," even applies to dredging and filling. Section 10 provides in part:
The creation of any obstruction not affirmatively authorized by Congress,
to the navigable capacity of any of the waters of the United States is pro-
In two other clauses of section 10, however, other unauthorized activities
221. Water Act 309,33 U.S.C.A. 1319; RHA 12,33 U.S.C. 406(1970).
222. 42 Fed. Reg. 37,159 (1977) (to be codified in 33 C.F.R. 326.2).
223. 33 U.S.C. 406 (1970) (emphasis added).
224. Id. 403 (emphasis added).
210 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
(e.g., building wharfs "or other structures" or excavating or filling) are
declared unlawful. A plausible argument could therefore be advanced that
section 12 did not provide for injunctive relief for illegal dredging and fill-
ing and that since Congress had acted, the judiciary should not grant
relief. These arguments were rejected in the 1960 Supreme Court case,
United States v. Republic Steel Corp.225 The Court, in a 5-4 decision writ-
ten by Justice Douglas, held that discharge of industrial waste solids
through sewers into the navigable Calumet River constituted an "obstruc-
tion" within the meaning of section 10. Therefore, the Court upheld the
district court's grant of injunctive relief:
Congress has legislated and made its purpose clear; it has provided enough
federal law in 10 from which appropriate remedies may be fashioned even
though they rest on inferences.226
Justice Harlan, in dissent, chastised the majority for "reading into the
statute things that actually are not there."
However appealing the attempt to make this old piece of legislation fit
modern-day conditions may be, such a course is not a permissible one for a
court of law, whose function it is to take a statute as it finds it. The filling of
deficiencies in the statute.. .is a matter for Congress, not for this Court.227
Republic Steel again illustrates the inherent capacity of the judiciary,
through its power to elaborate terms and construe statutes, to respond to
changing concepts of the public interest.
No study of the evolution of environmental legal doctrine would be
complete without considering the experiences of Joseph G. Moretti, Jr.,
and his company (hereinafter called Moretti) in attempting to create a
"network of land fingers and canals for use as a mobile home park" in the
Florida Keys.228 Moretti had completed substantial dredging and filling
and general alteration in navigable waters when two off-duty EPA
employees took pictures of the work and reported it to the Jacksonville
office of the corps. On December 30, 1970, the corps ordered Moretti to
cease operations, and Moretti complied for a while, applying for an "after
the fact" section 10 permit. However, in early June 1971, Moretti recom-
menced operations. On July 15, 1971, he was arrested for illegal dredging,
but even his arrest did not deter him from completing, by September 2,
1971, practically all of the originally proposed dredging.
Before Moretti's activities began, the land was a nesting and feeding
ground for many species of birds, including the roseate spoonbill. The bay
produced numerous game and commercial species of fish and also served
225. 362 U.S. 482(1960).
226. Id. at 492.
227. Id. at 510.
228. See notes 234-35, 260-61,264,266,268 infra for Moretti cases.
COASTAL LAND MANAGEMENT
as a "nursery" for many higher forms of aquatic life. The shoreline was
lined with mangrove plants, and the bay bottom was composed of an
organic peaty substance, probably the result of hundreds of years of
Moretti's activities completely destroyed all living mangrove plants,
resulting in loss of marine life and the wading and shore birds dependent
on the plants. Excavation for channels and canals resulted in removal of
the peat. In short, Moretti's activities had destroyed mangroves, resulting
in the destruction of bay and sea life, had removed the peat bottom, ex-
posing a bottom unable to sustain life, and had released silt, suffocating
the peat and other living vegetable forms and clouding the water and
blocking sunlight needed for growth of plant life in the bay. "The broad
effects of such harm," the court said, "cannot result in anything but
damage to commercial and sport fishing and a diminishing of the natural
beauty and enjoyment of this area."230
A preliminary injunction was issued on July 30, 1971. Then, on
September 2, 1971, Judge Mehrtens of the United States District Court for
the Southern District of Florida held that Moretti's operations violated the
Rivers and Harbors Act of 1899 and ordered Moretti to restore the bay to
its original condition, enjoining Moretti from further sales of lots until the
fill was removed.
Judge Mehrtens found that "[i]n all regards, the United States Army
Corps of Engineers acted reasonably and in a normal manner toward the
Moretti Company application." He found that Moretti had "acted in an
unlawful and capricious manner. The defendant's haste in completing his
illegal operations in Florida Bay [is] matched only by his disdain of the
requirements imposed upon him by Sections 403, 406 and 407 of Title 33,
United States Code."231
The opinion concluded that "[i]t is within the inherent powers of the
Court to enjoin violations of the United States Code" and that section 12
of the Rivers and Harbor Act of 1899 expressly provides for enforcement
of removal of structures by injunction of a federal district court.232
The opinion also considered whether the existence of criminal sanctions
precluded injunctive relief:
It is of no consequence that Congress has also provided criminal penalties
for the acts committed by the defendants.... Where the sanctions of a
criminal liability are inadequate to insure the effectness[sic] of a statute
229. Facts described in United States v. Joseph G. Moretti, Inc., 331 F. Supp. 151, 156 (S.D. Fla.
230. Id. at 157.
232. Id. at 157, 158.
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
designed to protect an interest of the United States, civil actions are proper
notwithstanding existence of criminal penalties to protect the interests of
the United States.233
Moretti appealed. On May 15, 1973, the Fifth Circuit issued its "Moret-
ti P" opinion, which addressed the principal substantive issues but never-
theless remanded to the district court with this explanation:
Despite the fact that Moretti violated the Act flagrantly and our settled con-
viction that mandatory affirmative relief requiring a burdensome perform-
ance is statutorily and equitably appropriate on these facts, we modify and
remand for completion of administrative action which conceivably could
have the effect of validating the work done, thus rendering the issues
Moretti was again before Judge Mehrtens. He had been advised by the
corps that his permit application was denied, and the government had
moved for reinstatement of the court's order. Finding that the corps'
denial was "neither arbitrary nor capricious" and accepting the corps'
demarcation of the mean high tide line, the court reinstated the original
order with certain modifications. One additional question was whether to
order total restoration of lands that Moretti had conveyed to third parties
who had already built on the land. Noting that "the Court has no desire to
create a hardship upon the presumably innocent, albeit negligent, in-
dividual property owners," their lands were treated differently; however,
the opinion added, "now that enforcement of our environmental laws is
the rule and not the exception, future reliance upon the compassion of the
Court and the Government is not warranted."235 Moretti was permanently
enjoined from conducting further excavations or selling additional lots
without prior court approval and was ordered to fill and restore certain
areas and file a restoration plan with the court."3
The order got immediate national attention. On January 6, 1975, in an
editorial entitled "Back to the Swamp," the New York Times rhapso-
When a Miami judge can order a developer to restore a mangrove swamp
that he had devastated on his own property, Florida has clearly moved a
long way from the days when it was a real estate speculator's paradise. The
change in social attitude had to come, as a result of the increasingly ruinous
effect of developers' operations since the great land boom of the 1920's.
While it may take more than a court order to resuscitate a dying swamp,
this perceptive Federal judge has served notice to developers everywhere
233. Id. at 158.
234. Untied States v. Joseph G. Moretti, Inc., 478 F.2d418,421 (5th Cir. 1973).
235. United States v. Moretti, 387 F. Supp. 1404, 1407 (S.D. Fla. 1974).
COASTAL LAND MANAGEMENT
that despoiling natural resources for private gain is no longer to be taken as
a natural right.237
Moretti's view of Judge Mehrtens was different. He was reported as say-
ing: "I'd rather have Judge Roy Bean than Mehrtens. It's like saying you
must hang yourself and you must submit your plans within 20 days on how
you plan to pull the rope."238
Shortly after the first Moretti order, Judge Mehrtens issued his opinion
in Weiszmann v. District Engineer, U.S. Army Corps of Engineers.239 A
developer who had dug canals on a Florida Key and connected them to
navigable waters was ordered to fill the canals pursuant to a court-
approved plan and timetable. Weiszmann was also fined $5,000 and was
permanently enjoined from selling, conveying or disposing of any real
property at the site without prior court approval until the restoration was
completed and penalty paid. Ironically, Weiszmann had initiated the
action seeking an injunction against the corps' jurisdiction; the order was
in response to the counterclaim of the United States. In reaching its deci-
sion that restoration was appropriate, the court considered, inter alia:
(a) Whether or not the project was completed or substantially completed
prior to May 27, 1970.
(b) Whether the project was for public use or private gain.
(c) The extent, if any, of improvements made by innocent third parties.240
Restoration orders were also issuing from other courts. In United States
v. Smith,241 the District Court for the Eastern District of Virginia ordered
restoration of marsh wetlands in Mathews County, Virginia, reserving
judgment on whether to impose a civil penalty depending upon the
developer's progress in implementation of the restoration plan. The
saltwater marshes included areas above and below the mean high water
line,242 but since the corps' jurisdiction was based on violation of the
Water Act as well as of the RHA, jurisdiction was not a serious issue.
More cases out of Judge Mehrtens's court soon followed. Again the site
was the Florida Keys. In United States v. Keevan, 243 the developers of a
roadway system around the perimeter of Shark Key were ordered to
remove the structures seaward of the mean high tide line as in violation of
the RHA and to replant the red mangroves within one year.
237. N.Y. Times, Jan. 6, 1975, at 26, col. 1.
238. Miami Herald, Feb. 2, 1975, at 5, col. 3.
239. 7 E.R.C. 1523 (S.D. Fla. 1975), rev'dinpart, 526 F.2d 1302 (5th Cir. 1976).
240. Id. at 1526.
241. 7E.R.C. 1937 (E.D. Va. 1975).
242. Id. at 1938. This case emphasizes the importance of botanical indicator species as defining
jurisdictional boundaries. "[T]he boundary between salt cordgrass (spartina alterniflora) and salt
meadow [h] ay (spartina patens) generally follows the mean high water mark." Id.
243. 7 E.R.C. 1527(S.D. Fla. 1974).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
United States v. Sexton Cove Estates244 involved the familiar Florida
Keys activity of canal building followed by "plug-pulling" to give water-
front advantages to trailer park sites. Again Judge Mehrtens ordered fill-
ing and restoration, including replanting the red mangrove fringe. Sexton
Cove is also significant because the developer's actions were not so
flagrant as in some other cases, and the opinion devotes considerable
discussion to the principle that "an administrative determination running
contrary to law will not constitute an estoppel against the federal govern-
ment."245 The court concluded that "the defense of estoppel or laches is
not available to the defendant. Nor is the time worn cry of the developer
'selective enforcement' of any avail for if such a defense ever existed in
this Circuit, it has been recently laid to rest."246
Not all judges were as stern as Judge Mehrtens. Conservation Council v.
Costanzo247 provides an interesting comparison with Moretti I, Smith, and
other cases ordering restoration. The developer wanted to construct a
marina that would require both a section 10 permit and an environmental
impact statement. A section 404 permit under the Water Act was also
required, because the developer planned to deposit dredged material in ap-
proximately ten acres of "salt meadow wetlands" above the mean high
water mark. Although the area was subject to periodic inundation by the
tides (perhaps a few times a year), thereby bringing it within the Water
Act's "waters of the United States" definition,248 the court distinguished
this wetland from those in United States v. Smith because "the fill
area... [was] not subject to inundation by the tides 'under normal condi-
tions,' as that phrase is used... [in] Smith."249 The Costanzo wetland con-
tained salt meadow grass (spartina patens), which the court found
yieldede] nutrients which contribute to the aquatic, biological com-
munities in the estuary." The court found, however, that the contribution
"is not great when compared to the contribution of marshes which are
subject to relatively regular flushing by the tides."250
The court emphasized that "[i]n a situation such as this, a court of
equity is not obligated to grant the injunctive relief which the plaintiffs
seek.""' It was unwilling to require reprocessing of the section 10 permit
(although it did order preparation of an environmental impact statement)
or to enjoin full use of the marina or other additional work with respect to
244. 389 F. Supp. 602 (S.D. Fla. 1975), rev'din part and remanded, 526 F.2d 1293 (5th Cir. 1976).
245. Id. at 612(quoting Atlantic Richfield Co. v. Hickel, 432 F.2d 587, 591-92(10th Cir. 1970)).
246. Id. at 612-13 (citing United States v. Ream, 491 F.2d 1243 (5th Cir. 1974)); United States v.
Raven, 500 F.2d 728, 733, n.14 (5th Cir. 1974).
247. 398 F. Supp. 653 (E.D.N.C. 1975), aff'dper curiam, 528 F.2d 250 (4th Cir. 1975).
248. Id. at 674.
249. Id. See also notes 241-42supra and text at same.
250. 398 F. Supp. at 668.
251. Id. at 675.
COASTAL LAND MANAGEMENT
the marina project. "This Court's consciousness of the inevitability of the
development of the Island has had a significant effect on its decision not
to enjoin the Corporation."252 With respect to the section 404 violation,
the court explained that "[t]he decision not to restrain further use of the
[wetland discharge] area is based on this Court's determination that the
violation is a minimal, technical violation and that a weighing of the prac-
ticalities and the hardships demands that the Corporation not be so
enjoined."23 Costanzo, then, provides a vivid illustration of the scope of
the federal district courts' discretion in reaching equitable results. But it
does more. It highlights the difficulties of classifying the vast coastal and
inland wetlands that are now subject to regulation under the section 404
program. It emphasizes that courts may base the exercise of their equitable
powers on the scientific evaluation of a particular wetland's worth. It also
suggests that some courts may be unwilling to impose burdensome sanc-
tions when, as in the words of the Costanzo opinion, "the violation is a
minimal, technical violation under fast-changing, unstable law."254
In several recent cases judges have shown a reluctance to impose such a
harsh remedy as complete restoration. In United States v. American
Capital Land Corp.,255 for example, the U.S. District Court for the
Southern District of Mississippi recognized that a court "may consider the
equities involved in determining the appropriate remedy."256 Since
American Capital Land Corporation had not knowingly conducted its
dredging operations in violation of sections 10 and 13 of the RHA, and
since the defendant's dredging work had destroyed only some three acres
of a total of some 64,000 acres of marshland in Mississippi, the court
found that a limited remedy was appropriate.
While the court does not doubt that massive destruction of marsh lands
would have the destructive effect on wildlife described by the plaintiff's
supporting affidavits, the court finds that the relatively slight destruction
which occurred in this case will not precipitate the catastrophes described.
The court has no desire to encourage willful disregard of the provisions of
the Rivers and Harbors Act by others, but it likewise has no desire to make
an example of this defendant or punish innocent, though negligent,
purchasers of real estate.25
Accordingly, the court ordered the parties to consult with each other and
propose a fair remedy agreeable to all.
Similarly, in United States v. Sunset Cove, Inc."2 the Ninth Circuit
253. Id. at 674.
255.  5 Envir. L. Rep. (ELI) 20,705 (S.D. Miss. 1975).
256. Id. at 20,706.
258. 5 E.R.C. 1023 (D. Ore. 1973), aff'd in part, modified in part, and remanded per curiam, 514
F.2d 1089 (9th Cir. 1975), cert. denied, 423 U.S. 865 (1975).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
court of appeals modified an order of the district court requiring a
developer to remove a totally illegal landfill. Appellant Sunset was
stabilizing a sandspit against erosion by emplacement of riprap (rock used
for construction foundations) and by elevating the surface to create
building sites. Apparently, Sunset was unaware that a section 10 permit
was required. The Ninth Circuit believed that the court might have
"tempered the law with a touch of equity." The total removal of the
illegal landfill was, "as a practical matter, far beyond the resources of
Sunset or its principals." Accordingly, the lower court judgment was
modified "to require the removal of as much of the riprap as will permit
nature, in a reasonable period of time, to take its course and approxi-
mately re-establish former topographic conditions."259
On February 17, 1976, the Fifth Circuit court of appeals handed down
four related judgments- United States v. Joseph G. Moretti, Inc. (Moretti
II),260 Joseph G. Moretti, Inc. v. Hoffman,261 United States v. Sexton
Cove Estates, Inc.,262 and Weiszmann v. District Engineer, U.S. Army
Corps of Engineers.263 In Hoffman, the court affirmed the corps' process-
ing and denial of Moretti's application for an after-the-fact dredging and
fill permit. And, as discussed above, Sexton Cove and Moretti II held
the Corps may under certain circumstances exercise jurisdiction over dredg-
ing and filling operations above MHTL [mean high tide line] under Section
403 [sec. 10] of the Rivers and Harbors Act. Prerequisite for such jurisdic-
tion are factual circumstances showing some effect upon navigable waters,
some alteration or modification of either course, location, condition or
capacity of those waters.264
In Moretti II, Sexton Cove, and Weiszmann, however, Judge Mehrtens
was reversed on two significant points: (1) the court held that the district
court erred in holding that the corporate officer was personally liable for
the costs of the restoration undertaking; and (2) the court reversed and
remanded for an evidentiary hearing on the manner of restoration to be
performed by the defendants in each case. In Moretti II, for example, the
Moretti must be afforded an opportunity to present its objections to the
feasibility and environmental advisability of the restoration order to be
undertaken. The district court remedial injunction like that in Sex-
259. 514 F.2d at 1090.
260. 526 F.2d 1306 (5th Cir. 1976).
261. 526 F.2d 1311 (5th Cir. 1976).
262. 526 F.2d 1293 (5th Cir. 1976).
263. 526 F.2d 1302 (5th Cir. 1976).
264. United States v. Joseph G. Moretti, Inc., 526 F.2d 1306, 1309 (5th Cir. 1976). See also United
States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976), and discussion at notes 244-46
supra and text at same.
COASTAL LAND MANAGEMENT
ton...was entered without a factual record establishing that the court's
choice of restoration was based upon a complete examination of both the
environmental factors involved and the practicalities of the situation.265
A two-day evidentiary hearing was held before Judge Mehrtens. Expert
witnesses testified to the effects of the Moretti Corporation's activities and
to the suggested plan of restoration. On November 19, 1976, in United
States v. Joseph G. Moretti, Inc.,266 Judge Mehrtens ordered that the
government's remedial restoration plan be complied with "in the manner
least disruptive to the environment." He carefully described how the Fifth
Circuit criteria had been met.267 To assure performance, an equitable lien
was established on defendant's Hammer Point land and all the corporate
assets. All corporate income was placed in trust and "neither payments of
wages, dividends or expenses nor repayment of officer-stockholder loans"
could occur without court order. The Corps of Engineers was authorized
to complete the restoration if the defendant should fail to comply, reim-
bursement for which was to come from the corporate assets.
Moretti then moved that the Fifth Circuit grant emergency interim
relief, asking that the lien be placed, as an alternative, just on the property
involved in the dispute. On January 17, 1977, the Fifth Circuit denied
Moretti's motion.268 Thus, nearly seven years after the two off-duty EPA
employees discovered Moretti's illegal activities, substantial restoration
"least disruptive of the environment" seemed imminent.
Restoration orders, in summary, are emerging as effective enforcement
tools. They have been useful in enforcing the RHA and could be equally
effective in enforcing a state's coastal management program. A court's
decision to issue a restoration order will depend on many equitable con-
siderations, the Fifth Circuit's criteria being especially instructive. Among
other things, there must be "a complete, comprehensive examination of
both the environmental factors involved and the practicalities of the situa-
tion"; the defendant must be afforded "an opportunity to present its
objections to the feasibility and environmental advisability of the govern-
ment's proposed restoration plan" and to present alternatives; the govern-
ment's restoration plan must be "carefully designed to confer maximum
environmental benefits [and] at the same time [be] tempered with a 'touch
of equity,' considering the degree and kind of wrong and the practicality
of the remedy"; and the proposed plan should not be beyond the
265. 526 F.2d at 1310.
266. 423 F. Supp. 1197 (S.D. Fla. 1976).
267. Id. at 1201, 1202. See note 269 infra and text at same.
268. United States v. Joseph G. Moretti, Inc., No. 77-1033, motion denied without opinion (5th
Cir. Jan. 17, 1977). See Federal Court Dismisses Companies' Suit Against EPA Water Quality Plan-
ning Rules,  7 Envir. Rep.-Cur. Dev. (BNA) 1546-47.
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
resources of the defendant.269 For "flagrant" violations, the Moretti
litigation illustrates that courts are willing to enforce "burdensome per-
formance."270 Costanzo and Sunset Cove, in contrast, illustrate how
courts, in exercise of their equitable powers, will consider all the
Courts, in tempering restoration orders with a "touch of equity,"
should weigh public as well as private equities. Destruction of a wetland
may cause irreversible damage to natural systems, thereby imposing large
costs on the public. Hence restoration orders should intentionally include
a significant deterrent component as well as seek to restore the status quo.
The comparison, then, of Judge Mehrtens to Judge Roy Bean272 may have
been more flattering to the judge than Mr. Moretti intended.
F. Constitutional Limits on Federal Regulation
Direct federal regulation of the use of coastal lands inevitably raises
questions of the constitutional limits on the federal government's powers.
Two principal limitations, which require some preliminary analysis at this
point, are the due process and "taking" clauses of the Fifth Amendment:
nor shall any person... be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use without
First, consider the taking clause. The United States Supreme Court has
recognized that even if government does not physically take land pursuant
to its power of eminent domain, governmental regulation may cause such
a diminution in value as to constitute a constitutionally impermissible tak-
ing.273 In Justice Holmes's famous words in Pennsylvania Coal Co. v.
The general rule at least is, that while property may be regulated to a cer-
tain extent, if regulation goes too far it will be recognized as a taking.274
Implementation of the corps' wetlands regulations will undoubtedly
269. Summarized in United States v. Joseph G. Moretti, Inc., 423 F. Supp. 1197, 1201 (S.D. Fla.
270. United States v. Joseph G. Moretti, Inc., 478 F.2d 418,421 (5th Cir. 1973).
271. See Conservation Council v. Costanzo, 398 F. Supp. 653 (E.D.N.C. 1975), aff'd, 528 F.2d
250 (4th Cir. 1975); United States v. Sunset Cove, Inc., 5 E.R.C. 1073 (D. Ore. 1973), aff'd in part,
modified in part, and remanded per curiam, 514 F.2d 1089 (9th Cir. 1975), cert. denied, 423 U.S. 865
272. See note 238 supra and text at same.
273. The Supreme Court's opinion in Penn Cent. Transp. Co. v. City of New York, 98 S. Ct. 2646
(1978), upholding, as against a taking attack, New York City's Landmarks Preservation Law as
applied to Grand Central Terminal, continues to recognize the validity of the Holmes Pennsylvania
Coal approach. See generally Fred Bosselman, David Callies, & John Banta, The Taking Issue: An
Analysis of the Constitutional Limits of Land Use Control 124-39 (Washington, D.C.: Government
Printing Office, 1973). See also note 317 infra.
274. 260 U.S. 393,415 (1922).
COASTAL LAND MANAGEMENT
lead some affected landowners to argue that denial of a permit has
resulted in a "taking."2" Many recent state cases dealing with the im-
plementation of regional and statewide programs for wetlands regulation
have reflected a judicial willingness to uphold stringent regulations
without compensation.276 The cases considering state and local regulation
should be analyzed, however, to see whether direct federal regulation
presents factors likely to elicit different judicial responses.
1. The Anomalous "Navigation Servitude"
Wetlands regulation under the RHA occurred within an area "essen-
tially" coterminous with the area of the navigation servitude277-for
example, up to the mean high water line of a navigable water body. The
geographical jurisdiction under the Water Act has been construed,
however, as extending federal jurisdiction over the nation's waters to the
maximum extent permissible under the commerce clause.27 Therefore, the
Corps of Engineers will be regulating land areas and development activ-
ities traditionally thought to be principally within the regulatory purview
of the states or their delegates and beyond that area covered by the naviga-
tion servitude. The possible significance of this difference can be
understood only by briefly reviewing the historical development of that
Navigation servitude is the term for the principle that, in the exercise of
the navigation power, certain private property may be "taken" without
compensation.279 Although the principle has a questionable theoretical
foundation, it has nevertheless been repeatedly recognized in United
States Supreme Court opinions.28 The navigation servitude is an
275. Major pending litigation involves the corps' denial of dredge and fill permits to the Florida-
based Deltona Corporation. Deltona proposed to develop a community of some 35,000 people near
Marco Island, Fla. The company, over a period of about 12 years, had gradually obtained necessary
state and local permits. On April 16, 1976, however, the corps denied the federal permits, a decision
Deltona officials claim will result in a loss of $50 million to $80 million. See generally, Corps Denies
Two Permits, Okays One for Dredge, Fill at Florida Development,  6 Envir. Rep.-Cur. Dev.
(BNA) 2141-43. See also Deltona Corp. v. Hoffman, 9 E.R.C. 1942 (M.D. Fla. 1977) (allowing inter-
vention of several environmental groups).
276. See, e.g., Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972); Candlestick Prop-
erties, Inc. v. San Francisco Bay Conservation & Dev. Comm'n, 11 Cal. App. 3d 557, 89 Cal. Rptr.
897 (1st Dist. Ct. App. 1970); Sibson v. State, 336 A.2d 239 (N.H. 1975), discussed at notes 300-303
infra and text at same. But cf. and compare State v. Johnson, 265 A.2d 711 (Me. 1970), with In re
Spring Valley Dev., 300 A.2d 736 (Me. 1973). See also Bruce A. Ackerman, Private Property and the
Constitution 217-18 (New Haven, Conn.: Yale University Press, 1977), for a listing of cases that the
author concludes "indicates that wetland regulations have been upheld and struck down in approx-
imately equal numbers."
277. See note 285 infra.
278. See notes 96-149 supra and text at same.
279. See Eva H. Morreale, Federal Power in Western Waters: The Navigation Power and the Rule
of No Compensation, 3 Nat. Resources J. 1, 19 (1963).
280. See, e.g., United States v. Rands, 389 U.S. 121 (1967); United States v. Twin City Power Co.,
350 U.S. 222 (1956); United States v. Willow River Power Co., 324 U.S. 499 (1945).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
anomalous concept, however, in failing to distinguish between the power
of Congress to regulate and the possible duty of Congress to compensate
for certain kinds of regulation.
The navigation servitude has been the subject of considerable scholarly
study and comment,81 and although the commentators agree that the rule
is firmly established in this country's jurisprudence,282 the explanations
and rationalizations of the rule seem inadequate. One theory, for
example, is that the government has a property right, measured by the
navigation servitude, and since the private property affected by exercise of
the navigation power never included this superior, retained interest, no
private property is taken.'83 This theory is usually based on Supreme
Court opinions that speak of an owner's title as "at best a qualified
one.. .subordinate to the public right of navigation."284
Any landowner holds a "qualified" title in the sense that the property is
held subject to the state's power to regulate pursuant to the police power
and the federal government's power to regulate under several enumerated
powers including the commerce clause-of which the navigation power is
only a part. But in the exercise of other regulatory powers-including
other regulation under the commerce power-a regulation may be held in-
valid unless government compensates. Only in certain exercises of the
navigation power may government regulate with impunity, knowing that
compensation will not be required.28
Probably the best explanation for the navigation servitude is that the
common law of England attached great importance to the public's right of
navigation and fishing in navigable waters;'6" that this judicial notion of a
281. See, e.g., Clark, supra note 33, 101.3 at 15; Ronald C. Allen, Federal Evaluation of
Riparian Property: Section 111 of the Rivers and Harbors Act of 1970, 24 Me. L. Rev. 175 (1972);
Glenn J. MacGrady, The Navigability Concept in the Civil and Common Law: Historical Develop-
ment, Current Importance, and Some Doctrines That Don't Hold Water, 3 Fla. St. U.L. Rev. 513
(1975); Morreale, supra note 279, at 19; James Munro, The Navigation Servitude and the Severance
Doctrine, 6 Land & Water L. Rev. 491 (1971); William J. Powell, Just Compensation and the Naviga-
tion Power, 31 Wash. L. Rev. & St. B.J. 271 (1956); Ludwik A. Teclaff, The Coastal Zone-Control
Over Encroachments into the Tidewaters, 1 J. Maritime L. & Com. 241 (1970); Report, ABA Special
Committee, Federal Navigation Servitude, 6 Real Prop. Prob. & Tr. J. 132 (1971); Comment, Naviga-
tional Servitude as a Method of Ecological Protection, 75 Dick. L. Rev. 256 (1971); Comment,
Navigation Servitude-the Shifting Rule of No Compensation, 7 Land & Water L. Rev. 501 (1972);
Comment, Constitutional Law-Eminent Domain-Condemnation of Riparian Lands Under the
Commerce Power, 55 Mich. L. Rev. 272 (1956).
282. See, e.g., United States v. Grand River Dam Auth., 363 U.S. 229 (1960); United States v.
Twin City Power Co., 350 U.S. 222 (1956); United States v. Chandler-Dunbar Water Power Co., 229
283. See, e.g., Powellsupra note 281, criticized by Morreale, supra note 279, at 23.
284. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 62 (1913).
285. Morreale emphasizes that the rule applies only to "certain" private property: "It would thus
be misleading to assume that the scope of the navigation power is commensurate with the navigation
servitude. In other words, power and servitude are not interchangeable concepts. Rather, given a
proper exercise of the power, the question still left to be examined in all cases: are these private
property rights burdened with or affected by the servitude?" Morreale, supra note 279, at 20.
286. See id. at 25.
No. 2 COASTAL LAND MANAGEMENT 221
superior public right was received in this country's jurisprudence;287 and
that all landowners have had fair notice that their title was subject to this
superior public interest.288 Thus, the principles of fairness inherent in the
Fifth Amendment289 are met, since presumably the landowner paid a
lower consideration that reflected this reserved public interest. This ex-
planation, of course, means that nothing lying in the servitude area is ever
"taken" when the navigation power is properly exercised; the affected
landowner's title never included those interests reserved under the superior
2. Blending of Due Process and Taking Analyses
Federal wetlands regulation beyond the navigation servitude does raise
the question whether the judiciary will apply different standards or will
declare federal regulation unreasonable at a lower threshold than an iden-
tical exercise of regulatory power by a state pursuant to the police power.
Existing case authority does not support a definitive answer to the ques-
tion; there seems to be no valid reason, however, for restricting federal
regulation to the servitude area, or, all other factors being equal, for
favoring state regulation over federal beyond that area. True, Zabel v.
7Tabb290 reflects favorable judicial treatment when federal regulation is
within the area encompassed by the navigation servitude. Zabel offers no
guidance to the "taking" question, however, when regulation occurs
beyond the servitude. Other factors may then become more important in
deciding whether regulatory legislation is constitutional.
It might be argued that, for regulation beyond the reach of the naviga-
tion servitude, if the only variable were whether the federal government
was regulating pursuant to the commerce power or the state was regulating
pursuant to the reserved police power, the judiciary would apply the same
standards and draw the Holmesian line between reasonable and
unreasonable regulation at the same place. Whatever one thinks of
Holmes's Pennsylvania Coal opinion, however, it was certainly an
admirable effort to impose a pragmatic judicial solution when government
regulates in a manner that causes substantial conflict between legitimate
claims of the affected private landowner and the general public. Thus, as
long as courts continue to apply some variation of the Holmes balancing
approach, they are likely to be affected consciously or unconsciously by
any factors that bear on reasonableness or fairness of the governmental
action. Courts are therefore likely to consider factors in taking analysis
287. See id. at 28.
288. See id. at 23.
289. See generally Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical
Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165 (1967).
290. 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
that conventional constitutional theory would say are analytically more
relevant to the question of substantive due process.
In a recent study, The Taking Issue,29 the authors examined cases
where state or regional mechanisms for controlling land use were at issue,
and they noted a possible trend toward upholding restrictive land use
regulations regardless of their impact on property values if the regulation
implemented an overall state or regional policy rather than merely local
concerns. Although the authors cautioned that generalizingig from such
meager data is hazardous," they nevertheless concluded that the favorable
judicial responses to the stringent regulations at issue in the cases under
the San Francisco Bay Conservation and Development Commission,292 the
Wisconsin shoreland protection program,293 the Maine Site Location
Law,294 and the Maryland state wetlands program295 indicated a judicial
preference for state or regional approaches. They concluded:
Each court expressed a strong willingness to abide by the legislature's judg-
ment that the public interest required extensive police power regulation.
Each decision emphasizes that the challenged enactment represents a deter-
mination of the state legislature that is not to be lightly overturned."9
The tendency toward more favorable response to state programs was not
accompanied by a similar tendency with respect to local regulation. Noting
that traditionallyll, local land use regulations have not been treated by
the courts with the same deference shown by the courts to state regula-
tions," they examined all of the reported appellate cases alleging that local
land use regulations amounted to a taking and concluded that the local
cases showed "no particular change from the trend of decisions in the
The Taking Issue also emphasizes the greater likelihood for favorable
judicial response when the public purpose to be served is especially com-
pelling, such as the safety of children or protection of public waters.298
291. Bosselman et al., supra note 273.
292. Cal. Gov't Code 66600-66661 (West Supp. Pamph. 1966-77); Candlestick Properties, Inc.
v. San Francisco Bay Conservation & Dev. Comm'n, 11 Cal. App. 3d 557, 89 Cal. Rptr. 897 (1st Dist.
Ct. App. 1970).
293. Wis. Stat. Ann. 144.26, 59.971 (West Cum. Supp. 1977-78); Just v. Marinette County, 56
Wis. 2d 7, 201 N.W.2d 761 (1972).
294. Me. Rev. Stat. Ann. tit. 38, 481-483 (West Supp. 1977-78). In re Spring Valley Dev., 300
A.2d 736 (Me. 1973)
295. 1971 Md. Laws ch. 792 (a public local law limited to the area of Charles County, Md.).
Potomac Sand & Gravel Co. v. Governor of Maryland, 266 Md. 358, 293 A.2d 241, cert. denied, 409
U.S. 1040 (1972).
296. Bosselman, et al., supra note 273, at 229.
298. See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) (safety of children); Just v.
Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972) (protection of public waters). This "nuisance
exception to the taking guarantee," Justice Rehnquist argues in his Penn Central dissent, 98 S. Ct.
2670, "is not coterminous with the police power itself."
In the 1928 Supreme Court case of Miller v. Schoene, 276 U.S. 272 (1928), handed down only six
COASTAL LAND MANAGEMENT
The authors concluded that, in such cases, if the public purpose is suffi-
ciently strong, there is a tendency not to apply the Holmes balancing test.
Although the courts, including the Supreme Court, credit the continuing
validity of the principle that regulation may constitute a taking, they appear
to be recognizing evolving areas where the balancing test is in-
operative.. .For the legislation advancing these purposes, it can be argued
that there is virtually no balancing test, because their public purpose is
weighed so heavily that Pennsylvania Coal remains only to indicate to
legislative bodies the heavy burden of justification that land use regulation
A 1975 New Hampshire Supreme Court case, Sibson v. State,300 is an
excellent example of the two judicial tendencies noted above. A state
water resources board denied landowner-plaintiffs permission to fill a
four-acre tract of saltmarsh, and the court held that, although the unfilled
marsh was of "practically no pecuniary value to the plaintiffs," the denial
was not a taking but was a valid exercise of the police power "proscribing
future activities that would be harmful to the public." The court drew
attention to the 1887 United States Supreme Court case of Mugler v.
Kansas,"' where the Court upheld the shutting down, without compensa-
tion, of a brewery under the Kansas prohibition law, and its own 1896 case
of State v. Griffin,302 where a statute was sustained that required the
defendant to cease dumping sawdust in a public water supply. Although
the court noted that it was "not extending the absolute of the Griffin case
rule to zoning cases dealing with legitimate current uses which are the only
uses of the property," it explained the Sibson result as follows:
The board has not denied plaintiffs' current uses of their marsh but
prevented a major change in the marsh that plaintiffs seek to make for
speculative profit. "An owner of land has no absolute and unlimited right
to change the essential natural character of his land so as to use it for a pur-
years after Pennsylvania Coal, a Virginia statute required destruction of red cedar trees infected by
cedar rust, declaring the diseased trees a "public nuisance" because of the danger they posed to apple
trees. Apple growing was a major Virginia industry, employing a large part of the state's population.
The Court upheld the regulation against a taking attack; however, the affected land still had value for
other purposes. Schoene's discussion of the relationship of diseased cedar trees to apple trees and the
apple-growing industry provides an interesting analogy, nevertheless, to the relationship of destruc-
tive activities in wetlands to, say, fisheries and the fishing industry. "[T]he state was under the
necessity of making a choice between the preservation of one class of property and that of the other
wherever both existed in dangerous proximity. It would have been none the less a choice if, instead of
enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple
orchards within its borders to go on unchecked. When forced to such a choice the state does not
exceed its constitutional powers by deciding upon the destruction of one class of property in order to
save another which, in the judgment of the legislature, is of greater value to the public." Id. at 279.
299. Bosselman, et al., supra note 273, at 264.
300. 336A.2d239(N.H. 1975).
301. 123 U.S. 623 (1887).
302. 69 N.H. 1, 39 A. 260(1896).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
pose for which it was unsuited in its natural state and which injures the
rights of others."3"3
The Supreme Court case of Goldblatt v. Town of Hempstead also sup-
ports the thesis that the public purpose may be so significant that the
Holmes balancing test is inappropriate. The town had banned some types
of mining and imposed a duty to refill some pits. Goldblatt, who owned a
sand and gravel pit in the town, claimed the regulation amounted to con-
fiscation of property without compensation. The Court upheld the regula-
tion as a "reasonable" exercise of the police power, even though the
regulation "completely prohibits a beneficial use to which the property
has previously been devoted."'30 Gerald Gunther has pointed out that
"Justice Clark's discussion of 'reasonableness' was more extensive than is
typical in the modern economic due process cases," and that the Court
reached its decision after considering the possible implications of Penn-
sylvania Coal.305 This seems to indicate that, although the judicial inquiry
into "reasonableness" in due process analysis is theoretically different
from reasonableness in the "taking" context, the Supreme Court may
actually merge the two concepts in practice. The authors of The Taking
Issue also seem to be implying such a conclusion.306
3. Substantive Due Process
Both the due process and taking clauses embody deeply rooted and
strongly held ethical and moral principles. Thus, it is inevitable that the
lines that the judiciary will draw between permissible and impermissible
regulation will reflect, to some degree, the personal philosophies of
particular Supreme Court Justices concerning the proper relationships
between individual property rights and the public interest.
The due process clause, as noted earlier, is virtually indefinable except
in broad phrases such as "that which comports with the deepest notions of
what is fair and right and just."307 The clause has a rich constitutional
history-much of which is devoted to the question of whether the required
fairness relates to substance as well as to procedure.
The due process clause was always interpreted to require procedural
303. 336 A.2d at 243 (quoting Just v. Marinette County, 56 Wis. 2d 7, 17, 201 N.W.2d 761, 768
304. 369 U.S. 590, 592 (1962).
305. Gerald Gunther, Cases and Materials on Constitutional Law 603 (9th ed. Mineola, N.Y.:
Foundation Press, 1975).
306. One of the authors says, "This has been my position." Interview with John Banta, Esq., Con-
servation Foundation, in Washington, D.C. (Apr. 1, 1977).
307. See Corwin, supra note 214, at 1137 (quoting from Justice Frankfurter's dissenting opinion in
Solesbee v. Balkcom, 339 U.S. 9, 16 (1950)).
COASTAL LAND MANAGEMENT
fairness; until the late nineteenth century, however, a majority of the
Court had not given "wholehearted support" to substantive due process
as a protection of fundamental economic rights.308 But from Lochner v.
New York309 in 1905 until "the mid-1930's, the Court invalidated a con-
siderable number of laws on substantive due process grounds. Regulations
of prices, labor relations, and conditions for entry into business were
The "Lochner era" of judicial intervention began to decline, however,
with decisions such as Nebbia v. New York,31' which enunciated a limited
scope of judicial review of regulatory legislation:
[The Fifth and Fourteenth Amendments] do not prohibit governmental
regulation for the public welfare. They merely condition the exertion of the
admitted power, by securing that the end shall be accomplished by methods
consistent with due process. And the guaranty of due process, as has often
been held, demands only that the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a real and substantial
relation to the object sought to be attained.3'2
A 1962 Supreme Court decision reaffirmed the applicability of limited
scrutiny to land regulations, repeating the test of an 1894 decision:
To justify the State in.. .interposing its authority in behalf of the public, it
must appear, first, that the interests of the public.. .require such inter-
ference; and, second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon in-
Thus, unless First Amendment personal liberties or other fundamental
rights are at stake,314 the present Supreme Court attitude is one of judicial
deference to legislative judgments, with the ends and means of regulatory
legislation measured only by a standard of reasonableness. This "hands
off" judicial philosophy is further strengthened by placing the burden of
showing unreasonablenesss" on the one attacking the regulation and by
holding that "debatable questions as to reasonableness are not for the
courts but for the legislature."3'5
308. Gunther, supra note 305, at 548-50.
309. 198 U.S. 45 (1905).
310. Gunther, supra note 305, at 564.
311. 291 U.S. 502 (1934).
312. Id. at 525.
313. Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (quoting Lawton v. Steele, 152
U.S. 133, 137 (1894)).
314. See, e.g., Gunther, supra note 305, at 591-96 (discussing note 4 in Chief Justice Stone's
opinion in United States v. Carolene Products Co., 304 U.S. 144 (1938), which is generally regarded
as the source of the subsequent "double standard" of judicial review).
315. See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 595 (1962) (quoting Sproles v.
Binford, 286 U.S. 374, 388 (1932)).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
4. Blending of "Reasonableness" Factors
Theoretically, attacks based on substantive due process and taking are
different. However, a court's attitude toward "reasonableness" in the due
process context may have a subtle effect on the court's decision of where
the Holmesian taking line ought to be drawn. Arguably, this "blending"
of received constitutional theory is especially apt to occur when exurban
coastal lands are regulated.3' This country is experiencing significant
changes in attitudes toward the value of its natural resources, and it does
not take an extreme legal realist to predict how the public's increased con-
sciousness about environmental and energy issues will affect the judiciary.
If one accepts the "blending" thesis, then an analysis of the taking issue
should address itself, in addition to the usual criteria,37 to these
(1) What level of government enacted the regulatory program?
(2) Does the regulation implement national, state, or regional policy or
only a local policy?"3
(3) What is the composition of the policy-making body and its suit-
ability for deciding issues of the "public interest"?
(4) What is the nature of the public purpose being achieved by the
(5) Is the regulation based on sound scientific study and planning, and
does it relate the need for the environmental regulation to the competing
needs of the affected public?
Some provisional conclusions are suggested if one applies this mode of
analysis to the section 404 program. The convincing evidence of the
nationwide need for better management of the country's valuable
316. This idea was also expressed by John Banta, interview, supra note 306.
317. See, e.g., for discussions of the normal criteria, Penn Cent. Transp. Co. v. City of New York,
95 S. Ct. 2646 (1978); Philip Soper, The Constitutional Framework of Environmental Law 20, 50-71
in Dolgin & Guilbert, supra note 3; Arvo Van Alstyne, Statutory Modification of Inverse
Condemnation: The Scope of Legislative Power, 19 Stan. L. Rev. 727 (1967); Arvo Van Alstyne,
Taking or Damaging by Police Power: The Search for Inverse Condemnation Criteria, 44 S. Cal. L.
Rev. 1 (1970); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical
Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165 (1967); Joseph L. Sax, Takings,
Private Property and Public Rights, 81 Yale L.J. 149 (1971); Joseph L. Sax, Takings and the Police
Power, 74 Yale L.J. 36 (1964); Allison Dunham, Griggs v. Allegheny County in Perspective: Thirty
Years of Supreme Court Expropriation Law, 1962 Sup. Ct. Rev. 63; Robert Kratovil & Frank J.
Harrison, Jr., Eminent Domain-Policy and Concept, 42 Calif. L. Rev. 596 (1954).
318. There has been considerable judicial ferment in recent years suggesting the need for a regional
perspective in planning and regulation of land use. See, e.g., the general dissatisfaction the court
noted while upholding Ramapo's development-timing ordinance in Golden v. Planning Bd., 30
N.Y.2d 359, 285 N.E.2d 291, 324 N.Y.S.2d 178, appeal dismissed, 409 U.S. 1003 (1972) ("[S]tate-
wide or regional control of planning would insure that interests broader than that of the municipality
underlie various land use policies"). See also the dictum of Justice Sutherland in Village of Euclid v.
Ambler Realty Co., 272 U.S. 365, 390 (1926) ("the possibility of cases where the general public
interest would so far outweigh the interest of the municipality that the municipality would not be
allowed to stand in the way").
COASTAL LAND MANAGEMENT
wetlands and estuaries coupled with the usual presumption of validity will
make it indeed difficult to show constitutional infirmities. Perhaps the
only kind of case where courts might let the normal due process inquiries
affect their taking analyses would be cases where wetland areas having
trivial or no interstate impact are being subjected to stringent regulation
and where the critical functions of the wetlands have not been scien-
tifically established. A skeptical court, concerned about the landowner's
lost expectations, might then question, at least unconsciously, whether the
Corps of Engineers is institutionally well equipped to make public-interest
judgments in an area where state or local governments would better be
able to represent the affected public. Since the Clean Water Act of 1977
now enables states to assume the permit responsibility if certain federal
standards are met, even that kind of inquiry now seems remote.
Nevertheless, the quality of planning is relevant.39 Courts are almost
certain to ask why a stringent regulation is thought necessary-why a par-
ticular wetland should be left unaltered. If the corps can justify its strin-
gent regulations with sound scientific explanations, courts are much more
likely to defer to congressional and agency judgment. However, if large
parts of the regulated area have not been subjected to careful scientific
study-if the relationship of the stringent regulation to the public interest
has not clearly been established-courts may favor wetlands programs
that will better assure this kind of "fine scale" planning.
The variations in quality of planning can be illustrated by suggesting a
spectrum of types of planning. At one end of the spectrum, assume that a
state has an approved coastal zone management program320 that
establishes policies concerning use of wetlands by means of a planning
process that includes "fine scale" local planning as well as coordination
with regional and state planning, all of which consider all social,
economic, and environmental needs of the local, regional, and state
citizenry. Assume further that the program meets federal standards
designed to assure that the state considers interstate effects such as the
effects of Georgia activities in the Okeefenokee Swamp on water quality in
Florida. Arguably, a court, in either a substantive due process or taking
attack, would be less willing to substitute its judgment on regulatory
reasonableness if the denial of development permission were tied to such a
319. A Corps of Engineers official alluded to the quality of planning in a letter to the Washington
Post in which he identified the substantive 404 issue as whether "the public wants land-use control
exercised through an expanded federal water quality permit program, especially which does not pro-
vide for prior land-use planning." Letter from Maj. Gen. J. W. Morris, supra note 119.
320. See notes 428-48 infra and text at same for a discussion of the requirements under 306 of the
Federal Coastal Zone Management Act of 1972 for receiving certification of a coastal management
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
At the other end of the spectrum, assume that an area has not been sub-
ject to any local, state, or national planning, but the corps denies the
application because its stringent standards have not been met. Although it
would be unnecessarily risky to suggest that a court would not uphold the
regulation-especially in the early stages of the program-this lack of
prior study of the wetland resource and its relationship to community
needs might result in a court's questioning of the decision maker's "public
interest" cost-benefit analysis and the reasonableness of the result.
Arguably, then, the constitutionality of the section 404 process, as it is
implemented in relation to a specific parcel of land, may depend to some
degree on the precision with which the "public interest" in the use of the
wetland has been defined in advance by the relevant levels of government.
The courts, whether faced with a substantive due process or taking attack,
may consciously or unconsciously favor those regulatory programs
developed after all competing environmental, economic, and social needs
have been weighed and the effects on all citizens have been considered.
The California Coastal Act of 1976321 is an excellent example of a com-
prehensive coastal program. Florida, in more selective fashion, has also
developed some exemplary programs, such as the "Area of Critical State
Concern" program in the Florida Keys.22 The critical area scheme is
based on a comprehensive study of the competing needs of all Florida
citizens affected by land development decisions in the Keys. The ap-
plicable regulations may well be accorded a stronger presumption of
reasonableness than would regulations reflecting less comprehensive study
In summary, there are relevant criteria for deciding whether regulation
by one level of government should be preferred over another, and,
arguably, these criteria may affect judicial responses to substantive due
process and taking attacks. These criteria relate mainly to the capacity of
the agency to support its regulations with sound scientific studies-its
capacity for demonstrating the relationship of the regulation to the
prevention of public harm. If the "public interest" in water quality, for
example, clearly requires preserving a wetland in its natural state, then it
seems irrelevant whether the corps or a state or local agency implements
the policy. The standard can be stringent and the scope of discretion nar-
321. Cal. Pub. Res. Code 30000-30900 (West 1977 & Cum. Supp. 1978).
322. The Florida process for designating Areas of Critical State Concern, Fla. Stat. Ann. 380.05
et seq. (West 1974 & Cum. Supp. 1978), was modeled after art. 7 of the American Law Institute's
Model Land Development Code (1976).
323. Cf. Zabel v. Pinellas County Water & Navigation Control Auth., 171 So. 2d 376, 380 (Fla.
1965), which drew attention to the Florida governor and cabinet as being constitutionally established,
statewide elected officers who should especially be presumed to be appropriate for stating the public
No. 2 COASTAL LAND MANAGEMENT 229
row. If the "public interest" is unclear, however, and if the planning has
been insufficient to give clear standards to guide the decision maker, then
a stronger case can be made for politically responsive decision-making
bodies that represent all affected citizens. Arguably, then, land use deci-
sions concerning wetlands serving insignificant ecological functions in
their natural state should be made by bodies better suited for making land
use policy judgments than the Corps of Engineers.324
III. THE POTENTIAL SCOPE OF THE FEDERAL ROLE
The recent interest in energy and the environment has caused a reevalua-
tion of both the state and the federal roles in regulation of environmental-
ly sensitive lands and major development activities. The preceding section
traces how the federal role has expanded to achieve better regulation of
the nation's wetlands. Because of the sensitive nature of coastal lands and
the significant effects of land development activities on these lands, con-
tinued expansion of federal jurisdiction is foreseeable.
Expansion of federal regulation into fields historically thought to be
principally within state power and responsibility raises important issues of
federal-state relationships. Accordingly, this section traces the history and
evolution of the commerce and supremacy clauses of the United States
Constitution and analyzes the means by which the exercise of federal and
state regulatory power can be reviewed, checked, and reconciled.
For coastal land management, the most important source of federal
jurisdiction is the power "to regulate Commerce...among the several
states," while the most important source of state jurisdiction is the
"police power"-the power of the states to regulate activities having an
effect upon the "health, safety, welfare and morals" of its citizens.
Historically, the states have delegated much land regulatory power to
local governments, where lands and land development activities have been
regulated, if regulated at all. The shift from local (or no) regulation to a
complex regulatory system in which the federal government plays a major
role results in significant changes in the nature of land ownership and the
relationship of the individual property owner to government. It may also
be a harbinger of profound changes in the balance of power between
national and state governments.
A. The Evolution of the Commerce and Supremacy Clauses
The functions of the commerce and supremacy clauses can better be
understood by reviewing the experiences of the Union under the Articles
324. Land use decisions are often difficult to characterize as either legislative or adjudicative.
Normally they are a blend of the two-almost always including an element of policy making. Rarely
are standards specific enough to remove the element of ad hoc declaration of the "public interest."
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
of Confederation.325 A problem during the Confederation period was that
each state was independent except for a very few powers, the most
noteworthy of which was the war power. The national government was
unable to overcome the tendency of each state to consider only the inter-
ests of its own citizens. This parochial view was particularly destructive of
the new nation's interest in commerce.326 The commerce and supremacy
clauses were designed to remedy these weaknesses. This was recently
explained in the Oregon "bottle bill" case:
The purpose of the Commerce Clause, following the intolerable experience
of the economic Balkanization of America which existed in the colonial
period and under the Articles of Confederation, was to assure to the com-
mercial enterprises in every state substantial equality of access to a free
national market. It was not meant to usurp the police power of the states
which was reserved under the Tenth Amendment."7
The constitutional remedies for the deficiencies of the Confederation
have resulted in a strong national power that is now principally limited
only by the political restraints on the United States Congress. As the
author of a recent comprehensive study of United States Supreme Court
cases from 1937 to 1970 concludes:
Congress, under the authority of the Commerce Clause, is able to reach into
every nook and cranny of the highly interdependent American economic
system. It has unquestioned control over any business activity which in any
way "affects" commerce, regardless of how "local" that activity may be,
how remote or "indirect" its effect may be, and how small or insignificant
the contribution of a single instance may be if it is representative of "many
others similarly situated." Nor is Congress limited to the regulation of sub-
jects which are wholly economic in nature; by virtue of its commerce power
it can strike at the primarily moral evils of gambling (Champion v. Ames),
prostitution (Hoke v. United States), and racial discrimination in public
accommodations (Heart of Atlanta Motel v. United States and Katzenbach
v. McClung), the only constitutional requirement being the showing of a
connection between the prohibited activity and that commerce or inter-
course which "concerns more states than one."32'
325. See generally Joseph Story, Commentaries on the Constitution of the United States 225, at
160 (New York: Da Capo reprint, 1970). A committee was appointed "to prepare and digest the form
of a confederation to be entered into between these colonies" on June 11, 1776. Id. 222, at 158.
Between Apr. 8, 1777, and Nov. 15, 1777, the articles were debated and finally adopted by Congress.
Id. 224, at 159. They were finally ratified by the last state in Mar. 1781. Id. 225, at 160.
326. Alexander Hamilton examined the inadequacies of the Confederation and the advantages of
the new Constitution in Essay No. 15 of The Federalist. Jacob E. Cooke, ed., The Federalist (Middle-
town, Conn.: Wesleyan University Press, 1961).
327. American Can Co. v. Oregon Liquor Control Comm'n, 15 Ore. App. 618, 517 P.2d 691, 696
(Ore. Ct. App. 1973).
328. Paul R. Benson, The Supreme Court and the Commerce Clause, 1937-1970, at 345 et seq.
(New York: Dunellen Publishing Co., 1970). See generally Albert J. Rosenthal, The Federal Power to
Protect the Environment: Available Devices to Compel or Induce Desired Conduct, 45 S. Cal. L. Rev.
397, 398-402 (1972).
COASTAL LAND MANAGEMENT
First, I discuss briefly the evolution of the commerce power and test the
proposition that Congress, pursuant to its power to regulate commerce,
constitutionally can enact comprehensive legislation regulating the use of
all critical coastal lands, including prime coastal agricultural lands. That
Congress has this power does not establish that Congress should or will
exercise it. Subsequently, I consider the policy arguments for and against a
strong federal role in the coastal zone and the potential means for check-
ing the current expansion of federal jurisdiction, if that is desirable.
The classic interpretation of the commerce clause was provided by Chief
Justice John Marshall in the 1824 Supreme Court case of Gibbons v.
Ogden.'29 Justice Marshall believed that regulation of commerce meant
more than mere regulation of traffic or the interchange of commodities:
"[the clause] comprehend[s] every species of commercial intercourse ....
No sort of trade can be carried on...to which this power does not
extend."330 "The genius and character of the whole government seem to
be, that its action is to be applied to those internal concerns [of the nation]
which affect the States generally; but not to ... those which are complete-
ly within a particular State, which do not affect other States, and with
which it is not necessary to interfere, for the purpose of executing some of
the general powers of the government." The opinion concluded that
thishs power, like all others vested in congress, is complete in itself, may
be exercised to its utmost extent, and acknowledges no limitations other
than are prescribed in the constitution.""'
Much of the present commerce power doctrine can be traced to the
"constitutional revolution" of 1937-42, during which the Supreme Court,
in its classic opinions in National Labor Relations Board v. Jones &
Laughlin Steel Corp.,32 United States v. Appalachian Electric Power
329. 22 U.S. (9 Wheat.) 1 (1824).
330. Id. at 193-94.
331. Id. at 195, 196.
332. 301 U.S. 1 (1937). The National Labor Relations Act of 1935 was "challenged in its entirety as
an attempt to regulate all industry, thus invading the reserved powers of the States over their local
concerns." Id. at 29. Held constitutional: "The congressional authority to protect interstate com-
merce from burdens and obstructions is not limited to transactions which can be deemed to be an
essential part of a 'flow' of interstate or foreign commerce. Burdens and obstructions may be due to
injurious action springing from other sources. The fundamental principle is that the power to regulate
commerce is the power to enact 'all appropriate legislation' for 'its protection and advancement'.. .to
adopt measures 'to promote its growth and insure its safety'...'to foster, protect, control and
restrain.'. That power is plenary and may be exerted to protect interstate commerce 'no matter what
the source of the dangers which threaten it.'...Although activities may be intrastate in character
when separately considered, if they have such a close and substantial relation to interstate commerce
that their control is essential or appropriate to protect that commerce from burdens and obstructions,
Congress cannot be denied the power to exercise that control." Id. at 36-37.
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
Co.,"3 United States v. Darby,34 and Wickard v. Filburn,3" among
others, marked out a very broad reach for the commerce power. Many
early commerce clause cases dealt with issues of navigation and, later,
economic regulation. Civil rights, however, has also been a central focus
of commerce power litigation as exemplified by the related cases of Heart
of Atlanta Motel, Inc. v. United States"36 and Katzenbach v. McClung,337
which considered the constitutionality of title II of the Civil Rights Act of
1964 and upheld it as a valid exercise of the commerce power, despite
nominal impact on commerce among the several states of the small and
localized businesses that were parties to the litigation.
Environmental cases of the seventies rely on the commerce clause prin-
ciples established in the earlier navigation and economic regulatory cases.
In Zabel v. Tabb, 33 for example, the Fifth Circuit relied on Wickard v.
Filburn in framing the test of congressional power as being "whether there
is a basis for the congressional judgment that the activity regulated has a
substantial effect on interstate commerce.""39 The court easily concluded
that the questioned regulation came within the "expansive reach" of the
333. 311 U.S. 377 (1940). The scope of the commerce power was considered in relation to condi-
tions in licenses for the construction of hydroelectric dams; held, "it cannot properly be said that the
constitutional power of the United States over its waters is limited to control for navigation .... [T]he
authority of the United States is the regulation of commerce on its waters. Navigability... is but a part
of this whole. Flood protection, watershed development, recovery of the cost of improvements
through utilization of power are likewise parts of commerce control." Id. at 426.
334. 312 U.S. 100 (1941). Congress empowered to prohibit shipment in interstate commerce of
lumber manufactured by employees whose wages and hours do not meet certain federal standards; not
a valid objection that motive or purpose was regulation of wages and hours, motive being exclusively
a matter for legislative judgment if it does not infringe some constitutional prohibition. "The power
of Congress over interstate commerce.., extends to those activities intrastate which so affect in-
terstate commerce or the exercise of the power of Congress over it as to make regulation of them
appropriate means to the attainment of a legitimate end, the exercise of the granted power of Con-
gress to regulate interstate commerce." Id. at 118-19.
335. 317 U.S. 111 (1942). Agricultural Adjustment Act of 1938 is constitutional even in extending
federal regulation "to production not intended in any part for commerce but wholly for consumption
on the farm." Id. at 118. "That appellee's own contribution to the demand for wheat may be trivial
by itself is not enough to remove him from the scope of federal regulation where, as here, his con-
tribution, taken together with that of many others similarly situated, is far from trivial." Id. at
127-28. See also Perez v. United States, 402 U.S. 146, 154 (1971).
336. 379 U.S. 241 (1964). The Court upheld Title II of the Civil Rights Act of 1964 as applied to a
nationally advertised, 216-room motel near downtown Atlanta, considering only the commerce
power, which the Court felt was sufficient for its decision. The Court concluded that there are essen-
tially only two questions to be asked: "(1) whether Congress had a rational basis for finding that
racial discrimination by motels affected commerce, and (2) if it had such a basis, whether the means it
selected to eliminate that evil are reasonable and appropriate." Id. at 258-59.
337. 379 U.S. 294 (1964). Held the civil rights act valid as applied to a 220-seat family-owned
restaurant which received annually about $70,000 worth of food that had moved in commerce. It did
not matter that the amount of food from sources outside the state was insignificant compared with the
total food moving in commerce, id. at 298, and that Congress was not required to await the total
dislocation of commerce before regulating. Id. at 300-301 (citing Wickard v. Filburn, 317 U.S. 11l
338. 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971). See notes 164-80 supra and
text at same.
339. Id. at 203.
COASTAL LAND MANAGEMENT
commerce clause: "the nation knows, if Courts do not, that the destruc-
tion of fish and wildlife in our estuarine waters does have a substantial,
and in some areas a devastating, effect on interstate commerce."340
Similarly, in United States v. Holland, 31 a lower federal court, faced with
the question of whether federal jurisdiction over water pollution encom-
passes intertidal wetlands by virtue of the Water Act, concluded that
"federal authority over water pollution properly rests on the Commerce
Clause... [a]nd the Commerce Clause gives Congress ample authority to
reach activities above the mean high water line that pollute the waters of
the United States."342
When the Sixth Circuit court of appeals considered whether the corps'
jurisdiction extended to the tertiary nonnavigable tributary at issue in
United States v. Ashland Oil,343 the court reviewed the holding in
Oklahoma ex rel. Phillips v. Atkinson344 that the power of flood control
extends to the tributaries of navigable streams and concluded that there
was a clear parallel to control of pollution:
Pollution control of navigable streams can only be exercised by controlling
pollution of their tributaries. If the power of flood control extends to the
tributaries of navigable streams...then we believe that the power of pollu-
tion control extends to the tributaries of navigable streams likewise.3"'
Two recent cases have dealt specifically with the Water Act's section 404
program. In Leslie Salt Co. v. Froehlke,"6 the corps section 404 jurisdic-
tional regulations of September 1972 37 were at issue. Since one of the two
daily West Coast tides is significantly higher than the other, the corps
regulation departed from the traditional mean high water (MHW) line and
provided that "the regulatory jurisdiction.. .extends to the MHW line
except on the Pacific Coast where it extends to the MHHW (mean higher
high water) line."3" Plaintiffs contended that the corps could not con-
stitutionally regulate any property shoreward of the MHW line; however,
the court, citing Holland and Ashland Oil, concluded:
Congress, [in] enacting the FWPCA [Water Act], was exercising its powers
under the commerce clause to combat pollution of the nation's waters; that
water pollution unquestionably affects interstate commerce and that,
340. Id. at 203-4.
341. 373 F. Supp. 665 (M.D. Fla. 1974). See notes 96-107 supra and text at same.
342. Id. at 676.
343. United States v. Ashland Oil & Transp. Co., 504 F.2d 1317 (6th Cir. 1974). See notes 107-10
supra and text at same.
344. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941). See notes 40-44 supra
and text at same.
345. 504 F.2d at 1327.
346. 403 F. Supp. 1292 (N.D. Cal. 1974).
347. 33 C.F.R. 209.260(k)(l)(ii) (1972).
348. Leslie Salt Co. v. Froehlke, 403 F. Supp. 1292, 1296 (N.D. Cal. 1974).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
therefore, it was a proper exercise of the commerce power to require permits
for dredging or filling which are potential causes of pollution of waters of
the United States (Zabel v. Tabb...); that the exercise of the commerce
power for that purpose is not limited by traditional "navigable waters"
definitions; that, although the MHW line test may remain as a proper test
for other purposes, e.g., obstructions to navigation under the Rivers and
Harbors Act of 1899, that test does not limit federal regulatory power under
In the 1975 case of P.F.Z. Properties, Inc. v. Train,"35 plaintiff pro-
posed to develop an apartment-hotel condominium complex near San
Juan, Puerto Rico, on land covered primarily by mangrove wetlands.
Upon receipt of an EPA notice of violation and an order directing that
discharges of fill and biological material cease pending receipt of a corps
permit, plaintiff ceased all activities. When the corps issued a determina-
tion of navigability for the wetland area, plaintiff filed suit claiming that
the United States government did not have jurisdiction to assert authority
over nontidal mangrove swamps. The court concluded that plaintiff's land
was subject to the requirements of the Water Act; in addition to a review
of traditional notions of federal navigability for regulatory purposes, the
court cited Holland"' and Natural Resources Defense Council v.
Callaway2" in support of its decision:
The FWPCA [Water Act] was designed to exercise federal regulatory
jurisdiction over activities which impair navigable waters. The Act was
enacted to prevent the entry of pollutants into navigable waters and, to this
end, pollution must be controlled at its source before the pollution en-
dangers our coastal environment.'3
The court also concluded, citing Zabel v. Tabb, "4 that the "Government's
power extends to the protection of wildlife and natural resources in
navigable waters, as well as to the protection of navigation.""55
The commerce clause is a major source of national authority to regulate
the uses of critical coastal resources. Its evolution has reflected the
Supreme Court's willingness to uphold wide-ranging economic, environ-
mental, and social regulatory programs. The result for coastal land
management purposes is a "federal police power"356 under the commerce
349. Id. at 1296-97.
350. 393 F. Supp. 1370 (D.D.C. 1975).
351. 373 F. Supp. 665 (M.D. Fla. 1974).
352. 392 F. Supp. 685 (D.D.C. 1975).
353. 393 F. Supp. at 1381.
354. 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971).
355. 393 F. Supp. at 1381.
356. See also for a discussion of federal "police power" under the commerce clause: Champion v.
Ames, 188 U.S. 321 (1903) (lottery tickets); United States v. Sullivan, 332 U.S. 689 (1948) (mis-
branded drugs); Hoke v. United States, 227 U.S. 308 (1913) (prostitution); Gooch v. United States,
297 U.S. 124 (1936) (kidnapping).
COASTAL LAND MANAGEMENT
clause closely analogous to the states' "police power" reserved under the
Tenth Amendment. Clearly, "[i]t is no objection [that the exercise of this
federal police power] is attended by the same incidents which attend the
exercise of the police power of the states."357 Under the supremacy clause,
irreconcilable conflicts between national and state police power regulation
will be resolved in favor of the national government.
When Congress regulates pursuant to the commerce power, courts may
be asked to decide whether the legislation exceeds Congress's power to
regulate interstate commerce and whether it infringes on the due process
clause of the Fifth Amendment. The Supreme Court has used two impor-
tant doctrines to support deference to congressional action: (1) with
respect to due process, the legislation will have a presumption of constitu-
tionality as exemplified in United States v. Carolene Products Co. "8 and
(2) with respect to the scope of the commerce power, the legislation will
have a presumption of the validity of legislation that in its individual
application may reach activities having only a trivial effect on interstate
commerce as long as the total class of activities regulated is reasonable.
Justice Stone's 1938 opinion in Carolene Products considered the impor-
tant question of the proper relationship of the judiciary and the United
States Congress. The Court enunciated a narrow scope of judicial review
by asserting a broad presumption of constitutionality:
[T]he existence of facts supporting the legislative judgement is to be pre-
sumed, for regulatory legislation affecting ordinary commercial transac-
tions is not to be pronounced unconstitutional unless in the light of the facts
made known or generally assumed it is of such a character as to preclude the
assumption that it rests upon some rational basis within the knowledge and
experience of the legislators."9
The Darby, Wickard, and Perez360 cases are particularly instructive in
understanding the second principle.
The commerce power and due process tests were both well summarized
in the Supreme Court's 1964 opinion in Heart of Atlanta Motel, Inc. v.
United States:3"' (1) "[T]he determinative test of the exercise of power by
the Congress under the Commerce Clause is simply whether the activity
sought to be regulated is 'commerce which concerns more States than one'
and has a real and substantial relation to the national interest";362 and (2)
357. United States v. Darby, 312 U.S. 100, 114 (1941).
358. 304 U.S. 144 (1938). The "Filled Milk Act" prohibited the shipment in interstate commerce of
certain skimmed milk compounded with fat or oil so as to resemble milk or cream; held, it did not
transcend the power of Congress to regulate interstate commerce. Id. at 147.
359. Id. at 152 (emphasis added).
360. United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942); Perez
v. United States, 402 U.S. 146 (1971).
361. 379 U.S. 241 (1964).
362. Id. at 255.
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
the relevant due process questions when Congress exercises its specific and
plenary commerce power are "whether Congress had a rational basis [for
its legislative findings] and.. .if it had such a basis, whether the means it
selected.. .are reasonable."363
The regulation of coastal lands focuses major clashes of economic,
social, and environmental values. Because of the character of most critical
coastal resources, any significant development of these resources will
affect citizens beyond the boundaries of individual states. The expansive
sweep of the commerce power allows the national government to regulate
these external effects in major watersheds, wetlands, and beaches364 if
Congress so desires.
An important question is whether prime agricultural lands could also be
regulated to prevent their conversion to nonagricultural uses. This ques-
tion is particularly significant because of California's recent experience.
The California Coastal Commission recommended a much broader
coastal zone boundary than that finally included in the California Coastal
Act of 1976.365 A large part of the final legislative compromise was a sharp
reduction in the amount of prime agricultural lands subject to jurisdiction
of the California Coastal Commission.
The commerce clause cases suggest that only the political restraints on
the United States Congress are likely to be an effective limit on exercise of
federal regulatory power in the coastal zone; the courts are likely to defer
to the congressional judgment. If this hypothesis needs further testing,
perhaps the best test of the ultimate reach of federal power in the coastal
zone is to consider whether Congress could constitutionally enact com-
prehensive regulations designed to maintain prime agricultural lands in
If Congress were to enact a comprehensive agricultural lands act, the
threshold constitutional questions would likely be the due process and
scope-of-commerce-power questions outlined above, that is, "whether the
activity sought to be regulated is 'commerce which concerns more States
than one' and has a real and substantial relation to the national interest"
and "whether Congress had a rational basis for finding that [maintenance
of prime agricultural lands in agricultural production affected the national
interest in commerce], and.., if it had such a basis, whether the means it
selected...are reasonable and appropriate"'6 6 Legislation of such far-
reaching consequences should ideally be supported by extensive scientific
studies and legislative debate and fact finding. But even if the act and
363. Id. at 258.
364. See, e.g., notes 338-54 supra and text at same.
365. Cal. Pub. Res. Code 30000-30900. (West 1977 & Cum. Supp. 1978).
366. See note 336 supra.
COASTAL LAND MANAGEMENT
legislative history were deficient in establishing the factual basis, Con-
gress's judgment would still be supported by a presumption of constitu-
tionality,367 and it is unlikely that the presumption favoring the congres-
sional judgment could be rebutted, in view of the quite apparent relation-
ship of agricultural lands to national and international interests of the
The final report of the California Coastal Zone Conservation Commis-
sion, for example, included the following recommended basic policy for
protecting agriculture and its economic viability:
Because coastal agriculture contributes substantially to State and national
food supply and is a vital part of the State's economy, the State's goal shall
be to maintain agricultural lands in agricultural production.368
This policy was based on many findings of the commission, including the
World food shortages, price increases, and national balance of payment
considerations have spurred public interest in preserving productive
agricultural lands. Projections of future food needs-and the lesser effi-
ciency or impossibility of growing many crops outside the coastal
zone-make existing coastal agricultural lands a natural resource of
statewide and national concern.69
These findings are supported by other studies that show, for example, that
"[a]s the leading agricultural state in a nation that is the world's largest
producer and exporter of agricultural products, California is deeply in-
volved in the world food complex."370 Much more could be said about the
coastal-dependent crops of the coastal zone of California, or the pressures
to convert prime lands to nonagricultural uses, or of the importance of
United States wheat to the rest of the world; however, the relationship of
prime agricultural lands to national and international interests is too self-
evident to require such elaboration. If a stronger nexus to national policy
were required, however, one might add the California Coastal Commis-
sion's finding of the relationship of agriculture to energy:
Fuel and fertilizer costs, and the probability that future yield increases will
be achieved only through energy-demanding techniques, add to the value of
naturally fertile coastal lands."'
Even if the United States Supreme Court believed, however, that the
367. See notes 359-60 supra and text at same.
368. California Coastal Zone Conservation Commissions, California Coastal Plan 55 (Sacra-
370. Food Task Force, University of California, A Hungry World: The Challenge to Agriculture:
Summary Report 1 (1974).
371. California Coastal Commissions, supra note 368, at 55.
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
legislation caused such profound changes in national-state relationships as
to require closer judicial scrutiny,"2 the case for the constitutionality of a
carefully conceived agricultural lands regulatory scheme still seems
excellent. Applying Justice Marshall's rule, recently repeated in Katzen-
bach v. McClung,'3 it would seem improbable that activities affecting
prime agricultural lands of national importance could be classified as
activities "completely within a particular State, which do not affect other
States, and with which it is not necessary to interfere, for the purpose of
executing some of the general powers of the government."374 That the
"exercise is attended by the same incidents which attend the exercise of the
police power of the states" would not be an objection."7 That the motive
and purpose of Congress might include achieving goals-for example,
maintenance of open spaces-outside the immediate realm of commercial
regulation would likely be thought irrelevant.376 And that the activities
regulated could be shown to occur within one state would not be objec-
tionable as long as the interstate commercial effects could be shown.77
Assuming that the rationale of cases such as Wickard v. Filburn37" would
be applied, demonstrating the requisite effect on commerce should not be
difficult.379 The argument that conversion of a specific, small parcel might
have only a trivial effect, if any, on interstate commerce would not
necessarily preclude regulation of the parcel. It would be necessary to
show only that the specific, small parcel "taken together with that of
many others similarly situated" had the requisite extrastate effect.
The Supreme Court has recently expanded the Wickard rule. In the 1971
case of Perez v. United States, 80 the Court did not even seek to determine
whether the cumulative effect of the prohibited activities had an actual
relationship to interstate commerce. Rather, the Court seemed to say that
a particular activity could be regulated as long as it was part of a class of
activities most of which did relate to interstate commerce. "Where the
class of activities is regulated and that class is within the reach of federal
372. See, e.g., notes 558-92 infra and text at same for discussion of National League of Cities v.
Usery, 426 U.S. 833 (1976), in which the Court enunciated a limiting principle for certain exercises of
the commerce power.
373. 379 U.S. 294 (1964).
374. Id. at 302 (quoting Gibbons v. Ogden, 9 Wheat. 1, 195 (1824)).
375. See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 147 (1938).
376. See, e.g., United States v. Darby, 312 U.S. 100, 115 (1941).
377. See Wickard v. Filburn, 317 U.S. 111, 127-28 (1942); Perez v. United States, 402 U.S. 146,
378. 317 U.S. 111 (1942).
379. See notes 360-62 infra and text at same, and cases collected in Construction Indus. Ass'n v.
City of Petaluma, 522 F.2d 897, 909 n.18 (9th Cir. 1975), cert. denied, 424 U.S. 934 (1976).
380. 402 U.S. 146 (1971). See generally David S. Bogen, The Hunting of the Shark: An Inquiry into
the Limits of Congressional Power Under the Commerce Clause, 8 Wake Forest L. Rev. 187 (1972).
COASTAL LAND MANAGEMENT
power, the courts have no power 'to excise, as trivial, individual instances'
of the class."38'
B. The Courts' Role in Federal-State Regulatory Conflicts
The foregoing discussion indicates that the commerce clause is the
source of congressional power for regulating the use of vast wetland areas
in the United States and suggests that the commerce power could support
federal legislation regulating the use of most coastal resources including
preventing conversion of prime agricultural lands to nonagricultural uses.
To suggest that the federal government could regulate the uses of critical
resources because of their relationship to national interests in commerce is
also to imply that, even if Congress has not enacted legislation over a par-
ticular coastal area or activity, any state regulation of such an area or
activity has the potential for conflict with the federal interest in commerce.
The courts are, of course, the arbiters of such federal-state clashes.
The states may continue to regulate uses of lands or development activ-
ities in the coastal zone even though the regulation incidentally affects
interstate commerce; however, the courts will have to decide at what point
the state's regulation of its local affairs unreasonably burdens interstate
commerce. The basic test, originally formulated in Cooley v. Board of
Wardens, is whether the subject matter of the state legislation is "in [its]
nature national, or admits] only of one uniform system, or plan of regula-
tion."'82 Of course, most federal-state land use conflicts are not likely to
pose such a clear case for "one uniform system, or plan of regulation."
Rather, in the words of Justice Stone,
between these extremes [of legislation plainly within or plainly without state
power] lies the infinite variety of cases, in which regulation of local matters
may also operate as a regulation of commerce, in which reconciliation of
the conflicting claims of state and national power is to be attained only by
some appraisal and accommodation of the competing demands of the state
and national interests involved.'83
A common Supreme Court approach for reconciling local and extra-
territorial interests is the "balancing" test enunciated in 1942 in Parker v.
Brown'84 and summarized in the 1970 Supreme Court case of Pike v.
Bruce Church, Inc. as follows:
381. 402 U.S. at 154.
382. 53 U.S. (12 How.) 299, 319 (1851).
383. Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 768-69 (1945).
384. 317 U.S. 341 (1943). See generally Note, Parker v. Brown: A Preemption Analysis, 84 Yale
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
Where the statute regulates even-handedly to effectuate a legitimate local
public interest, and its effects on interstate commerce are only incidental, it
will be upheld unless the burden imposed on such commerce is clearly exces-
sive in relation to the putative local benefits.... If a legitimate local pur-
pose is found, then the question becomes one of degree. And the extent of
the burden that will be tolerated will of course depend on the nature of the
local interest involved, and on whether it could be promoted as well with a
lesser impact on interstate activities."'8
To determine whether local regulation interferes with commerce, courts
must consider the questions: (1) What, if any, burden is imposed on inter-
state commerce by the questioned legislation? (2) How substantial is this
burden? (3) Is the interest sought to be served by the legislation a
legitimate local concern? (4) Is the legislation a reasonable means of
reaching the end desired? (5) Are there reasonable and adequate alterna-
tives available?36 The balancing test has recently been undergoing con-
siderable refinement, however, and one can only conjecture whether the
courts will apply a consistent theory. Some recent lower federal court cases
suggest that in coastal land management conflicts, the balancing approach
may virtually be ignored because of a tendency to accord a presumption of
validity to state and local legislative judgments in matters having complex
environmental, social, and economic implications.38 The cases reflect the
385. 397 U.S. 137, 142 (1970). A classic example of the Court's application of the balancing test
was Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945), which involved an Arizona
statute regulating the length of interstate trains. The Court weighed the local benefit of the law as a
safety measure and the national interest in keeping interstate commerce free from serious interference
and concluded that the "slight and dubious" local advantage was "outweighed by the interest of the
nation in an adequate, economical, and efficient railway transportation service." Id. at 783-84.
386. See, e.g., Proctor & Gamble Co. v. City of Chicago, 509 F.2d 69 (7th Cir. 1975), cert. denied,
421 U.S. 978 (1975), for an application of the first four questions, and see Dean Milk Co. v. City of
Madison, 340 U.S. 349 (1951), for an application of the fifth question.
387. In the 1975 case of Proctor & Gamble Co. v. City of Chicago, 509 F.2d 69 (7th Cir.), cert.
denied, 421 U.S. 978 (1975), the court upheld the constitutionality of Chicago's phosphate ban
ordinance, concluding: "We hold that the burden is so slight compared to the important and properly
local objective that the presumption we discussed earlier should apply. We will accept the City Coun-
cil's determination that this phosphate ban is a reasonable means of achieving the elimination and
prevention of nuisance algae unless we find that the plaintiffs have presented clear and convincing
proof to the contrary." 509 F.2d at 80. See also Construction Indus. Ass'n v. City of Petaluma, 522
F.2d 897 (9th Cir. 1975), cert. denied, 424 U.S. 934 (1976), where the Ninth Circuit court refused to
consider the federal right-to-travel issue upon which the district court had rested its decision in finding
unconstitutional the "Petaluma Plan" for controlling the influx of new residents. (The plaintiffs had
not met the "zone of interest" requirement of Warth v. Seldin, 422 U.S. 490 (1975).) The court also
considered due process and commerce clause issues, on which the appellees had standing.
On the latter, the court concluded that its ruling that "the Petaluma Plan represents a reasonable
and legitimate exercise of the police power obviates the necessity of remanding the case for considera-
tion of appellees' claim that the Plan unreasonably burdens interstate commerce." 522 F.2d at 909.
The court applied the Huron Cement test that "a state regulation validly based on the police power
does not impermissibly burden interstate commerce where the regulation neither discriminates against
interstate commerce nor operates to disrupt its required uniformity." Id. Thus the court followed a
line of authorities that arguably make it improper for a court "to review state legislation by balancing
reasonable social welfare legislation against its incidental burden on commerce." Id. See, e.g., Breard
COASTAL LAND MANAGEMENT
courts' unwillingness to try to balance factors that are not commen-
The United States Supreme Court's June 1978 decision in City of
Philadelphia v. New Jersey'88 indicates, however, that the Court will be
quick to strike state legislation that basically implements parochial
economic protectionist goals by means that may seem to be chiefly for
environmental protection purposes. New Jersey's Waste Control Act,
which barred disposal within New Jersey of solid waste originating or
collected outside the state's territorial borders, was attacked by the cities
of Yonkers, New York, and Philadelphia, Pennsylvania, on the "negative
implications" of the commerce clause, including preemption (discussed
below) and interference with commerce. The New Jersey Supreme Court
had upheld the act,3"' notwithstanding some burden on Pennsylvania and
New York, because whenhn balanced against the dangers to public health
and to the environment... these relatively small costs and modest incon-
veniences seem minor indeed."'39 The Supreme Court majority was
impressed, however, that "there is no basis to distinguish out-of-state
waste from domestic waste. If one is inherently harmful, so is the
other."39" New Jersey, the Court believed, was primarily attempting to
solve a financial problem: by slowing the flow of out-of-state waste into
New Jersey landfill sites, the time could be delayed when New Jersey cities
would be required to transport their waste to more distant and expensive
sites. The question of ultimate legislative purpose was thought irrelevant
to the constitutional issue:
v. Alexandria, 341 U.S. 622 (1951); Brotherhood of Locomotive Firemen v. Chicago, R.I. & Pac.
R.R., 393 U.S. 129 (1968); Soap & Detergent Ass'n v. Clark, 330 F. Supp. 1218 (S.D. Fla. 1971);
American Can Co. v. Oregon Liquor Control Comm'n, 15 Ore. App. 618, 517 P.2d 691 (Ore. Ct.
App. 1973). The latter cases also spoke to the value of local regulation. In Soap & Detergent, the court
observed: "the problem of water pollution is not subject to uniform national regulation, but rather by
its very nature lies within the domain of the local units of government. The qualities and
characteristics of bodies of water differ from region to region." 330 F. Supp. at 1222. The American
Can court also referred to the importance of local legislative judgments:
Changing living conditions or variations in the experiences or habits of different communities
may well call for different legislative regulations as to methods and manners of doing business.
517 P.2d at 698.
Each state is a laboratory for innovation and experimentation in a healthy federal system.
What fails may be abandoned and what succeeds may be emulated by other states. The bottle
bill is now unique; it may later be regarded as seminal.
Id. at 700.
388. 98 S. Ct. 2531 (1978).
389. Hackensack Meadowlands Dev. Comm'n v. Municipal Sanitary Landfill Auth., 68 N.J. 451,
348 A.2d 505 (1975), vacated and remanded, City of Philadelphia v. New Jersey, 430 U.S. 141 (1977).
The New Jersey Supreme Court, although noting arguments that the "weighing" test may not con-
tinue to be applied, concluded that "it seems clear that the [weighing test] has not yet been entirely
abandoned." Id., 348 A.2d at 517.
390. Id., 348 A.2d at 518.
391. City of Philadelphia v. New Jersey, 98 S. Ct. 2531, 2538 (1978).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
[T]he evil of protectionism can reside in legislative means as well as
legislative ends. Thus, it does not matter whether the ultimate aim of ch.
363 is to reduce the waste disposal costs of New Jersey residents or to save
remaining open lands from pollution, for we assume New Jersey has every
right to protect its residents' pocketbooks as well as their environment. And
it may be assumed as well that New Jersey may pursue those ends by slow-
ing the flow of all waste into the State's remaining landfills, even though
interstate commerce may incidentally be affected. But whatever New
Jersey's ultimate purpose, it may not be accomplished by discriminating
against articles of commerce coming from outside the State unless there is
some reason, apart from their origin, to treat them differently. Both on its
face and in its plain effect, ch. 363 violates this principle of non-
Preemption is functionally related to the burdening of commerce,
although conceptually it is separate."3 The increase in legislative activity
in the coastal zone portends conflicts between state and federal legislation
on the same subject matter, thereby involving the doctrine of federal
preemption. The doctrine allows courts (1) to determine that Congress has
occupied a field, thereby foreclosing the operation of state legislation in
the same field even if there are gaps in the federal legislation and even if
the state legislation is not in conflict with the federal scheme, or (2) to
determine that state legislation cannot stand because it is in conflict with
Where preemption is invoked by the courts, it signifies that federal
regulation has occupied a field so as to preclude state and local govern-
ments from imposing additional, or more stringent, or even different
though less burdensome, regulations than those already imposed by the
federal government. The doctrine is based on the supremacy clause and is
relevant in resolving the difficult problem that arises when the state seeks
to forbid an activity even though it would be allowed by the federal
Scholarly efforts to find consistent doctrinal bases for preemption deci-
sions usually conclude that preemption decisions simply reflect the prevail-
ing attitudes of a majority of the Court toward federalist values and the
nature of the subject matter regulated."' Nevertheless, preemption cases
are of value for understanding the federal courts' potential role in shaping
coastal land management programs and for gleaning, as in the
interference-with-commerce cases, some notion of the judicial policies
favoring either exclusive or concurrent federal jurisdiction where congres-
sional intent is unclear.
392. Id. at 2537.
393. See, e.g., Soper, supra note 317, at 20, 77; David E. Engdahl, Preemptive Capability of
Federal Power, 45 U. Colo. L. Rev. 51 (1973); Note, The Preemption Doctrine: Shifting Perspectives
on Federalism and the Burger Court, 75 Colum. L. Rev. 623 (1975).
394. Cf., e.g., Soper, supra note 317, at 99; Note, supra note 393, at 651-54.
COASTAL LAND MANAGEMENT
Preemption analysis usually proceeds roughly as follows. First, deter-
mine whether there is a federal law in effect in the same field as the
challenged state law. Second, determine whether the federal law was either
expressly, or by necessary implication, intended to be exclusive. Third, if
the federal law was not intended to be exclusive, determine whether the
state law nevertheless "stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.""'
The 1963 United States Supreme Court case of Florida Lime and
Avocado Growers, Inc. v. Paul"3 illustrates the application of these three
basic steps and also suggests what may become the most important princi-
ple for resolving most coastal land management preemption ques-
tions-that is, that federal legislation affecting land use, since it occurs in
a field traditionally subject mainly to state and local control, will probably
be subjected to a consistent presumption against federal preemption. This
presumption may gain particular strength before the current Court. A
recent study of the preemption doctrine concludes that a trend toward a
solicitous spirit with respect to federal interests during the Warren Court
era has shifted back to a solicitude of state interests under the Burger
395. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
396. 373 U.S. 132 (1963). In Florida Lime, the challenged California statute had the effect of
excluding as immature 6 out of every 100 Florida-grown avocados shipped to California. The Florida
avocados satisfied a federal regulation designed to ensure the maturity of avocados. This was the first
step. In the second step, finding no inevitable collision between the two schemes of regulation, id. at
143, the Court asked: "Does either the nature of the subject matter, namely the maturity of avocados,
or any explicit declaration of congressional design to displace state regulation, require [the California
statute] to yield to the federal marketing orders?" Id. Finding that "the maturity of avocados is a sub-
ject matter of the kind this Court has traditionally regarded as properly within the scope of state
superintendence," id. at 144, the Court applied the "settled mandate,...not to decree such a federal
displacement 'unless that was the clear and manifest purpose of Congress.' Id. at 147 (quoting Rice
v. Santa Fe Elevator Corp., 331 U.S. 218, 230). Then the third test, whether the state regulation
"stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress," was applied, and the majority opinion answered in the negative. Id. at 141. Four justices
dissented, concluding that the federal legislation and regulations "leave no room for this inconsistent
and conflicting state legislation." Id. at 160. The dissenting opinion emphasized that in Parker v.
Brown, 317 U.S. 341 (1943), the federal regulatory scheme was partial and incomplete. Also, the dis-
sent was concerned that "there is no indication that the state regulatory scheme has any purpose other
than protecting the good will of the avocado industry." 373 U.S. at 169. The Florida Lime case, then,
illustrates the actual difficulties in preemption adjudication. See generally Jan G. Deutsch, Precedent
and Adjudication, 83 Yale L.J. 1553 (1974). His article points out, inter alia, two interesting subse-
quent events: (1) that in the fall of 1963, when the California agency tried to relax the oil control stan-
dard, the California industry brought pressure for state enforcement to protect California growers
from competition, id. at 1579; and (2) that in 1973, the California statute was held unconstitutional as
discriminating against Florida avocados and unreasonably burdening interstate marketing of Florida
avocados in violation of the commerce clause. J. R. Brooks & Sons, Inc. v. Reagan, Civ. No.
C-71-1311 S.C. (N.D. Cal., Sept. 18, 1973).
397. Note, supra note 393, at 623. The principal cases relied on for this conclusion were: Goldstein
v. California, 412 U.S. 546 (1973), which denied the constitutional exclusivity of the federal copyright
power; New York State Dep't of Social Servs. v. Dublino, 413 U.S. 405 (1973), which upheld New
York's Work Rules; Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), which held that federal
patent law did not preempt state trade secret law; and Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Ware, 411 U.S. 624 (1973), which upheld a California statute voiding forfeitures under a profit-
244 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
Preemption was also an issue in the litigation concerning New Jersey's
waste control act, discussed above.8" The New Jersey Supreme Court
twice decidedd that the state law had not been preempted by federal legisla-
tion,99 a judgment finally upheld by the United States Supreme Court in
the June 1978 case of City of Philadelphia v. New Jersey,'40 in which the
Court invalidated the New Jersey law, instead, on grounds that it caused
an unconstitutional burden on interstate commerce.
Land use decisions are unique; they have multiple and often hidden
effects. Special attitudes about land may consciously or unconsciously
affect preemption decisions. Because of the wide geographic and far-
reaching substantive effects of decisions regarding land use, there is often
a need for multiple decision points. Thus, for reasons of administrative
feasibility and political theory, good coastal land management is not likely
to be provided by exclusive federal regulatory programs.
In 1954 Henry Hart drew attention to the result of uniformity, "to
thrust upon Congress a burden of exclusive responsibility for the
interstitial development of legal doctrine-a burden which it is wholly un-
equipped to bear."'40 He correctly predicted that the trend would pass,
pointing out two reasons why a procrustean solution of perfect national
uniformity would not find wide favor:
The first is the workaday reason of administrative feasibility.... The
sharing plan. The author concluded that only one recent case, City of Burbank v. Lockheed Air
Terminal, Inc., 411 U.S. 624 (1973), which found Burbank's curfew on late-night flights preempted
by federal aviation regulation, suggested that "the return to a state-directed presumption may not be a
complete reversal of prior decisions." Note at 651.
398. See notes 388-92 supra and text at same.
399. In Hackensack Meadowlands Dev. Comm'n v. Municipal Sanitary Landfill Auth., 68 N.J.
451, 348 A.2d 505 (1975), the New Jersey Supreme Court referred to Cooley v. Board of Wardens and
Justice Brennan's 1963 opinion in Florida Lime that "a state would be precluded from acting only
where either the 'nature of the subject matter' or an 'explicit declaration of Congressional design'
indicated that state efforts were to be precluded," that "although Congress has acted in this field
through the passage of the Solid Waste Disposal Act of 1965 and its subsequent amendments, it has
clearly indicated its intention not to preempt the area." Id., 348 A.2d at 515. Among the court's
reasons was the congressional finding that "the collection and disposal of solid wastes should con-
tinue to be primarily the function of State, regional, and local agencies." Id., 348 A.2d at 515 (citing
42 U.S.C.A. 3251(a)(6)). In response to the United States Supreme Court's remand in City of
Philadelphia v. New Jersey, 430 U.S. 141 (1977), the court, in City of Philadelphia v. State of New
Jersey, 73 N.J. 562, 376 A.2d 888 (1977), considered whether the preemption question was affected by
passage of the Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. 6901 et seq., and
concluded that Congress had not preempted the area of disposal of hazardous waste or any other area
of solid waste disposal. "It is well-settled today that pre-emption deriving from federal legislation
must take the form of 'an unambiguous Congressional mandate' [citing Florida Lime].... The
Supreme Court appears to have been especially reluctant to find an intent to pre-empt where state
legislation has been enacted to serve local environmental interests." Id., 376 A.2d at 891 (citing
Askew v. American Waterways Operators, 411 U.S. 325 (1973), and Huron Portland Cement Co. v.
Detroit, 362 U.S. 440 (1960)).
400. 98 S. Ct. 2531 (1978).
401. Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489,
No. 2 COASTAL LAND MANAGEMENT 245
second reason is more basic. Common sense and the instinct for freedom
alike can be counted upon to tell the American people never to put all their
eggs of hope from governmental problem-solving in one governmental
The trend toward an increased federal voice in land use decision making
calls for a reconsideration of the values of a federal system, which have
been eloquently described by Herbert Wechsler as follows:
In a far flung, free society, the federalist values are enduring. They call
upon a people to achieve a unity sufficient to resist their common perils and
advance their common welfare, without undue sacrifice of their diversities
and the creative energies to which diversity gives rise. They call for govern-
ment responsive to the will of the full national constituency, without loss of
responsiveness to lesser voices, reflecting smaller bodies of opinion, in areas
that constitute their own legitimate concern.43
Wechsler's essay emphasized James Madison's belief that the composition
of Congress and the political processes are better adapted to containing
authority than are the courts. Federal intervention as against the states,
Wechsler argued, is primarily a matter for congressional, not judicial,
This federalist philosophy, particularly relevant in a field as diverse as
planning and regulation of land use, suggests that generally the courts
should be reluctant to find congressional preemption. Rather, the
judiciary should leave it to Congress expressly to shift the historically
decentralized land management process to a higher level, if such exclusive
federal jurisdiction is needed, or to enact uniform policies, if uniformity
among the states is needed. The foregoing analysis of the commerce clause
and preemption cases indicates that such a philosophy of decentralization
and experimentation is being encouraged by various judicial techniques
for deferring to state and local legislative judgments.
Notwithstanding the general arguments against unnecessary judicial
intrusion into federalist issues, there will likely be some areas of coastal
land management where congressional intent will be unclear but where the
state political processes may be inadequate to address broader national
problems, such as the complex problems of national energy policy, or to
protect other fundamental interests, for example, the right to interstate
402. Id. at 540.
403. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Com-
position and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).
404. See generally, on the right to travel, Shapiro v. Thompson, 394 U.S. 618 (1969); United States
v. Guest, 383 U.S. 745 (1966); Edwards v. California, 314 U.S. 160 (1941); Comment, The Right to
Travel: Another Constitutional Standard for Local Land Use Regulations? 39 U. Chi. L. Rev. 612
(1972); Comment, Freedom of Travel and Exclusionary Land Use Regulations, 84 Yale L.J. 1564
(1975). Although the right to travel is not mentioned in the Constitution, Shapiro, for example, con-
246 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
A particularly troublesome and foreseeable example could be a state
legislature's disguising blatant exclusionary motives under the more
acceptable mantle of environmental protection legislation. The exclu-
sionary practices of many local governments have been well
documented,405 and some states have attempted to ameliorate these
impacts by a stronger state role in land use decision making.406 But the
extraterritorial impacts of state exclusionary practices could conceivably
become just as pronounced and violative of the national interest in com-
merce or of other fundamental values, particularly in the coastal zone with
all its competing land use demands. Thus, general arguments favoring a
limited role for the federal courts should not be pressed to a logical con-
clusion. If a court concludes that the clear impact of state coastal and
other statewide land use and environmental protection programs will
implement a stop-growth program that has substantial adverse effects on
important national values, the courts might better serve federalist values
by invalidating the state legislation, leaving it to the federal political proc-
esses to overrule the judiciary by corrective federal legislation if the courts
are in error. To be sure, there are other means for shaping state coastal
management programs that are consistent with federal needs-the Federal
Coastal Zone Management Act407 with its federal review of state programs
is a prime example. Nevertheless, certain fundamental individual values
have historically been best protected by the courts, and the values at stake
in the debates over growth management may also require such close
Such a major judicial role in forging a workable federal growth policy
will not be easy. Paul Freund has written: "It is commonplace that the
great divisive contests in American history have been played out across the
boards, as it were, of the Supreme Court." Citing public school segrega-
tion, he draws attention to the question "whether the pragmatic insti-
tution of judicial review is possible in a federal system only where deep
philosophic cleavages do not exist."408 A critic of America's system of
judicial review spoke to this issue as follows:
strued the right to travel interstate as being a fundamental right that would make applicable the
compelling state interest standard under the equal protection clause of the Fourteenth Amendment.
The Court has not yet enunciated exactly the parts of the Constitution upon which the right to travel is
predicated. See Shapiro, for example, where the Court stated, "We have no occasion to ascribe the
source of this right to travel interstate to a particular constitutional provision." 394 U.S. at 630.
405. See, e.g., National Committee Against Discrimination in Housing, Fair Housing and Exclu-
sionary Land Use, ULI Research Report No. 23 (Washington, D.C.: Urban Land Institute, 1974).
406. See, e.g., Massachusetts' Zoning Regulations (Appeals), Mass. Ann. Laws, ch. 40A, 13-22
(Law. Co-op 1973 & Cum. Supp. 1978); Florida's Development of Regional Impact Process, Fla. Stat.
Ann. 380.06 (West 1974).
407. 16 U.S.C. 1451-1464.
408. Paul Abraham Freund, Umpiring the Federal System, in The Supreme Court of the United
States: Its Business, Purposes, and Performance 92, 112 (Cleveland: World Publishing Co., 1961).
COASTAL LAND MANAGEMENT
[W]hen half of a nation believes in Locke and half in Filmer or Marx, the
result is not law but philosophy.... But when the whole of a nation agrees
on Locke, the idea of settling ultimate issues of public policy through
adjudication logically arises, since the problem is then not one of principle,
but of application.'"
It has become commonplace to see a "new mood" in America,
challenging the impacts of growth on the quality of life and insisting that
land be treated as a resource and not a commodity.41 This mood reflects
profound changes in attitudes about private property, the relationships of
the individual to government, and the relationships between various levels
of government. There is no philosophical consensus on many of these
issues. Individual citizens may not even have reconciled their own internal
conflicts. Thus, in fields such as coastal land management, where signifi-
cant environmental, economic, and social values are at stake and where
deep philosophical changes are occurring, a suggestion for increased
federal judicial scrutiny of state legislation can be made only with the
sober knowledge that the courts' intrusion into such a field portends
popular reaction at least as volatile as that provoked by the public school
desegregation issue. But as Professor Freund said:
[T]he role of the courts in maintaining a working federalism is precisely
this task of mediation between large principles and particular problems, the
task of interposing intermediate principles more tentative, experimental,
and pragmatic. The courts are the substations that transform the high-
tension charge of the philosophers into the reduced voltage of a serviceable
current.... For judicial review is not merely a derivative from a society in
agreement on fundamentals; in itself it is an educative and formative influ-
ence that, like the legal idea of a fair trial, may have consequences beyond
its immediate application for the mind of a people.'"
IV. THE INDIRECT FEDERAL ROLE
The federal role in coastal land management is based, in large part, on
the spending power-a power one constitutional law authority has
described as "probably the most important of all Art. I, 8, powers in its
impact on the actual functioning of the federal system."4'2 The grant-in-
aid program of the Federal Coastal Zone Management Act of 1972"' and
409. Id. at 112 (quoting Louis Hartz, The Whig Tradition in America and Europe, 46 Am. Political
Sci. Rev. 989, 997 n.10 (1952)).
410. Compare William K. Reilley, ed., The Use of Land: A Citizen's Policy Guide to Urban
Growth 33 (New York: Crowell, 1973), with Richard F. Babcock & Duane A. Feurer, Land as a Com-
modity "Affected with a Public Interest," 52 Wash. L. Rev. 289 (1977).,
411. Freund, supra note 408, at 114-15.
412. Gunther, supra note 305, at 243.
413. 16 U.S.C. 1451-1464.
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
the federal flood insurance program414 illustrate this indirect federal role.
Although both programs are theoretically optional, the incentives they
offer are great enough to place considerable pressure on states to par-
ticipate. Both programs, therefore, have significant consequences for
coastal land regulation.
The Environmental Protection Agency (EPA) also administers several
environmental regulatory programs having significant consequences for
coastal land management.41 Two of these-the Water Act416 and the
Clean Air Act41 '-are particularly illustrative of the EPA's major role in
land use decision making. Some of the Clean Air Act and Water Act pro-
grams are direct regulatory programs based on the commerce power;
others are planning assistance programs based on the spending power.418
Many federal acts have significant effects on the allocation and use of
coastal lands. My limited goals in this section are to describe some illustra-
tive types of indirect federal programs and to explore some constitutional
questions that they pose.
A. The Federal Coastal Zone Management Act of 1972 (FCZMA)
This act,419 extensively amended in 1976 in response to the energy crisis,
414. National Flood Insurance Act, as amended by Flood Disaster Protection Act of 1973, 42
U.S.C. 4001-4128 (1970 & Supp. V 1975). See generally H. Crane Miller, Coastal Flood Plain
Management and the National Flood Insurance Program: A Case Study of Three Rhode Island Com-
munities, Environmental Comment 2 (Washington, D.C.: Urban Land Institute, 1975). Miller's
report finds "some evidence that...the availability of flood insurance in coastal areas may actually
work as a counterforce against... sound flood plain management." Id. at 2. "Among the impacts of
flood insurance is the tendency of the insurance to sustain and often increase property values. In so
doing it should have an adverse impact on public acquisition of property, either tending to increase
property values beyond the means of local governments to acquire fee simple or less-than-fee simple
interests, or tending to reduce the total acreage that the community can acquire." Id. at 12. "Many
aspects of the National Flood Insurance Program are attuned to the problems associated with riverine
flooding, and are not well adapted to coastal flooding circumstances." Id. at 14.
415. See generally Teknekron, Inc., Survey of Land Use Related Activities of Federal Agencies in
Relation to EPA Programs (Washington, D.C.: Teknekron, Inc., for Environmental Protection
Agency, 1974); Daniel R. Mandelker, Land Development Planning and Control in Air and Water
Quality Programs, in Environmental and Land Controls Legislation 169 (Indianapolis: Bobbs-Merrill
Co., 1976); Russell E. Train, The EPA Programs and Land Use Planning, 2 Colum. J. Envt'l L. 255
416. 33 U.S.C.A. 1251-1376.
417. 42 U.S.C.A. 7401-7642.
418. "Viewed generally, the structure of the Clean Air Act reflects a genuine effort to develop an
elaborate form of cooperative federalism in which both the Federal government and the states are
assigned vital roles. Techniques such as preemption, total and partial,.. .delegations to the states of
federal authority,...and the creation of opportunities for states to participate in the task of con-
trolling air pollution...are employed." Brown v. EPA, 521 F.2d 827, 835 (9th Cir. 1975).
419. 16 U.S.C. 1451-1464. See generally, for a history of coastal zone management, the cita-
tions in my introductory article, pp. 153-54 supra, at note 2; and for recent articles, see, e.g., the
Selected Papers Presented at the Conference on the Legal Aspects of Coastal Zone Management,
Coronado, Cal., June 17-18, 1976, including Richard G. Hildreth, The Operation of the Federal
Coastal Zone Management Act as Amended, 10 Nat. Resources L. 211 (1977); Ann C. Yahner, The
Coastal Zone Management Act Amendments of 1976, 1 Harv. Envt'l L. Rev. 259 (1976).
COASTAL LAND MANAGEMENT
is the most important indirect federal program for coastal land manage-
ment. The act opens with a congressional finding that thereee is a
national interest in the effective management, beneficial use, protection,
and development of the coastal zone."'20 These national goals are to be
achieved, however, by encouraging a strong management role for state
governments "in developing land and water use programs.. .for dealing
with [coastal] land and water use decisions of more than local
States are given two major incentives for qualifying-significant
amounts of federal funds and a potentially effective means for gaining
leverage over certain federal decisions in a state's "coastal zone." The
financial incentives fall mainly into four major categories: (1) section 305
funds for developing a coastal management program; (2) section 306
funds for administering an approved coastal management program; (3)
section 308 funds for coastal energy impact assistance; and (4) section 315
funds for "acquiring, developing, or operating estuarine sanctuaries" and
for acquiring "lands to provide for access to public beaches and other
public coastal areas."
State leverage over federal decisions is provided through five "con-
sistency clauses,"422 which could give a coastal state unprecedented
capacity to influence significant federal decisions in the state's coastal
zone, including Outer Continental Shelf oil and gas activity. To be sure,
the FCZMA has means423 for assuring that, ultimately, federal power
remains supreme. But the process assures that the state voice will at least
The FCZMA reflects a strong congressional intent to give states and
their delegates a more significant management role than the national
420. FCZMA 302(a), 16 U.S.C. 1451(a).
421. Id. 302(h), 16 U.S.C. 1451(h).
422. Id. 307(c)(1), (2), 16 U.S.C. 1456(c)(1), (2) (federal activities); 307(c)(3)(A), 16 U.S.C.
1456(c)(3)(A) (federal licenses and permits); 307(c)(3)(B), 16 U.S.C. 1456(c)(3)(B) (outer continen-
tal shelf (OSC) licenses and permits); 307(d), 16 U.S.C. 1456(d) (federal assistance). See notes
449-87 infra and text at same.
423. The secretary of commerce has certain overriding powers. See, e.g., the limitation on the
307(c)(3)(A) federal licenses and permits consistency provision: "[U]nless the Secretary, on his own
initiative or upon appeal by the applicant, finds after providing a reasonable opportunity for detailed
comments from the Federal agency involved and from the state, that the activity is consistent with the
objectives of this chapter or is otherwise necessary in the interest of national security." FCZMA
307(c)(3)(A), 16 U.S.C. 1456(c)(3)(A). See also, for similar provisions, the secretary's overriding
power on the outer continental shelf (OCS) consistency provision, 307(c)(3)(B)(iii), 16 U.S.C.
1456(c)(3)(B)(iii); and the federal assistance consistency provision, 307(d), 16 U.S.C. 1456(d). In
addition to the secretary's overriding power, FCZMA expressly indicates that the act does not
diminish certain existing federal or state jurisdiction, 307(e)(1), (2), 16 U.S.C. 1456(e)(1), (2), or
affect any requirement under the Water Act or the Clean Air Act. 307(f), 16 U.S.C. 1456(0. "In
case of serious disagreement between any Federal agency and a coastal state [under 305 or 306] the
Secretary [of Commerce], with the cooperation of the Executive Office of the President, shall seek to
mediate the differences." 307(h), 16 U.S.C. 1456(h).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
government. Each coastal state is given considerable latitude in choosing
an appropriate management program for its coastal zone. The state can
choose to allocate land and water regulatory power between state and
local governments in any one or a combination of the following general
(A) State establishment of criteria and standards for local implementa-
tion, subject to administrative review and enforcement of compliance;
(B) Direct state land and water use planning and regulation; or
(C) State administrative review for consistency with the management pro-
gram of all development plans, projects, or land and water use regulations,
including exceptions and variances thereto, proposed by any state or local
authority or private developer, with power to approve or disapprove after
public notice and an opportunity for hearings.42'
The California Coastal Act of 1976,25 for example, mainly uses (A) and
(C), providing that by about 1980, local governments may become major
participants in California's coastal management process.
It was easy for states to qualify for section 305 program development
funds; by the end of the 1976 fiscal year, 33 out of 34 eligible coastal states
and territories had received section 305 grants.426 Section 306 grants are
more difficult to obtain. Only the states of Washington, Oregon, Califor-
nia, and Massachusetts had received section 306 certification by April
1. The Section 306 Approval Process
To gain section 306 approval, a state's legislature will likely have to
debate some sensitive issues of intergovernmental relationships and the
relationship of the individual citizen to government. Some of the more
politically troublesome issues are discussed below under the general topics
of (1) land and water uses subject to regulation; (2) the "coastal zone"
boundaries; (3) priorities of uses; (4) allocation and coordination of
governmental regulatory power; and (5) eminent domain.
First, to qualify under section 306, a state must have a management pro-
gram defining, among other things, "land uses and water uses.. .which
have a direct and significant impact on the coastal waters,"42' and iden-
424. 306(e)(1)(A)-(C), 16 U.S.C. 1455(e)(1)(A)-(C).
425. Cal. Pub. Res. Code 30000-30900 (West 1977 & Cum. Supp. 1978).
426. U.S., Department of Commerce, State of California Coastal Management Program and Final
Environmental Impact Statement 2 (Department of Commerce, National Oceanic and Atmospheric
Administration, Office of Coastal Zone Management, Aug. 1977).
427. See William Matuszeski, Status of State Coastal Zone Management Programs, May 1, 1978,
in ALI-ABA Course of Study Materials, Land Planning and Regulation of Development, May 10-12,
1978, at 115 (Philadelphia: American Law Institute, 1978), which also indicates approval imminent
for Wisconsin and Rhode Island.
428. FCZMA 305(b)(2), 16 U.S.C. 1454(b)(2); 306(a)(1), 16 U.S.C. 1455(a)(1).
COASTAL LAND MANAGEMENT
tifying permissible uses deemed to be subject to the management pro-
gram.429 Policies and procedures should be based on the following types of
(1) Capability and suitability of resources types to accommodate existing or
projected uses; (2) Environmental impacts on coastal resources; (3) Com-
patibility of various uses with adjacent uses or resources; (4) Evaluation of
inland and other location alternatives; (5) Water dependency of various uses
and other social and economic considerations.430
Special attention is given to national interest uses. The management
program must provide "for adequate consideration of the national
interest involved in planning for, and in the siting of, facilities (including
energy facilities in, or which significantly affect, [the] state's coastal
zone), which are necessary to meet requirements which are other than
local in nature."431 This requirement is not intended to compel a state to
accommodate a certain kind of facility, such as an energy facility, but
to assure that such facilities are considered in (1) the development of the
State's management program, (2) the review and approval of the program
by the Assistant Administrator, and (3) the implementation of the program
as such facilities are proposed. One need not conclude from this that any
and all such facilities proposed for the coastal zone need be sited therein.
The Act presumes a balancing of national interests in such facilities as
defense installations, energy production and distribution facilities and
highways with Federal, State and local concerns involving adverse
economic, social or environmental impacts.432
Examples of national interest uses include energy production and
transmission facilities, national recreation facilities, interstate transporta-
tion facilities, national defense and aerospace facilities, and regional water
"Uses of regional benefit" also get special attention. The program must
provide "a method of assuring that local land and water use regulations
within the coastal zone do not unreasonably restrict or exclude land and
water uses of regional benefit."434 A regional benefit use, basically defined
as one that has "(1) effectt on more than one local unit of govern-
ment...and (2) direct and significant impact on coastal waters""" might
well relate, by analogy, to the national interest requirement, or to energy
429. 43 Fed. Reg. 8,398 (1978) (to be codified in 15 C.F.R. 923.11(a)(1)).
430. Id. (to be codified in 15 C.F.R. 923.12(c)).
431. FCZMA 306(c)(8), 16 U.S.C. 1455(c)(8).
432. 43 Fed. Reg. 8,414 (1978) (to be codified in 15 C.F.R. 923.52(a)).
433. Id. (to be codified in 15 C.F.R. 923.52(f)).
434. FCZMA 306(e)(2), 16 U.S.C. 1455(e)(2).
435. 43 Fed. Reg. 8,399 (1978) (to be codified in 15 C.F.R. 923.13(d)).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
or recreation facilities siting. This conclusion is not necessary, however;
the states may determine whether or not regional benefit uses will be
defined in terms of the national interest.436
Both the national interest and regional benefit requirements reflect a
philosophy that is well expressed in Justice Sutherland's famous dictum in
the 1926 case of Village of Euclid v. Ambler Realty Co., in which he noted
the "possibility of cases where the general public interest would so far
outweigh the interest of the municipality that the municipality would not
be allowed to stand in the way."437
A second politically sensitive issue is the establishment of inland coastal
zone boundaries. The inland coastal zone boundary must include: (1)
thoseoe areas the management of which is necessary...to control uses
which have direct and significant impacts on coastal waters"; (2) special
management areas; (3) transitional and intertidal areas; (4) salt marshes
and wetlands; (5) islands; and (6) beaches.438 The boundary may be
"defined in terms of political jurisdictions (e.g., county, township, or
municipal lines) cultural features (e.g., highways, railroads), planning
areas (e.g., regional agency jurisdictions, census enumeration districts), or
a uniform setback line," provided that transitional and intertidal areas,
wetlands, islands, and beaches are included.439
The management program must specifically designate "areas of par-
ticular concern," which should include the following:
(i) Areas of unique, scarce, fragile or vulnerable natural habitat, unique
or fragile, physical, figuration (as, for example, Niagara Falls), historical
significance, cultural value or scenic importance (including resources on or
determined to be eligible for the National Register of Historic Places.)
(ii) Areas of high natural productivity or essential habitat for living
resources, including fish, wildlife and endangered species and the various
trophic levels in the food web critical to their well-being.
(iii) Areas of substantial recreational value and/or opportunity;
(iv) Areas where developments and facilities are dependent upon the
utilization of, or access to, coastal waters;
(v) Areas of unique hydrologic, geologic or topographic significance for
industrial or commercial development or for dredge spoil disposal;
(vi) Areas of urban concentration where shoreline utilization and water
uses are highly competitive;
(vii) Areas of significant hazard if developed, due to storms, slides,
floods, erosion, settlement, and salt water intrusion;
(viii) Areas needed to protect, maintain or replenish coastal lands or
resources including coastal flood plains, acquifers and their recharge areas,
436. 43 Fed. Reg. 8,378, 8,383-84 (1978).
437. 272 U.S. 365, 390 (1926).
438. 43 Fed. Reg. 8,404 (1978) (to be codified in 15 C.F.R. 923.31(a)(1)-(6)).
439. Id. 8,405 (to be codified in 15 C.F.R. 923.31(g)).
COASTAL LAND MANAGEMENT
estuaries, sand dunes, coral and other reefs, beaches, offshore sand
deposits, and mangrove stands.440
A third problem for state planners is to establish priorities of competing
uses of coastal areas. Land and water uses appropriate in one resource
area may, like the "pig in the parlor,"44' be totally inappropriate in
another. Careful attention must therefore be given to the relationship of
uses and resources and to the priorities of uses within particular resource
areas. "At a minimum, priority of use guidelines,.. .must be established
for areas of particular concern.... States may establish priority use
guidelines that apply throughout the coastal zone and are encouraged to
do so, especially as an aid to resolving use conflicts."442 Priority of uses is
also meant "to express the State's management concerns and policies on
how resources should be protected and/or developed."443 Siting of
regional energy facilities having substantial impact on the environment
should be the subject of special evaluative procedures.444
Fourth, no issue is likely to cause more legislative debate than the
allocation of regulatory authority between state and local governments or
other areawide, regional, or interstate agencies. The FCZMA provides
wide latitude for experimentation; but, ultimately, an acceptable program
must assure that statewide coastal policies and standards are reasonably
implemented and enforced. This shift in power will predictably upset
deeply held notions of "home rule."445 A state must coordinate its
management program with "governmental agencies having interests and
responsibilities affecting the coastal zone."46' Some increase in state
authority will probably be required in all coastal states, and local govern-
ment representatives and others opposed to increased regulation and
increased centralization of authority will almost certainly resist necessary
Finally, the eminent domain requirement may also prove politically
difficult. An acceptable program must include authority "to acquire fee
simple and less than fee simple interests in lands, waters, and other prop-
erty through condemnation or other means when necessary to achieve con-
formance with the management program."448
440. Id. 8,401 (to be codified in 15 C.F.R. 923.21(d)(1)).
441. 272 U.S. at 388.
442. 43 Fed. Reg. 8,401 (1978) (to be codified in 15 C.F.R. 923.22(a)).
443. Id. (to be codified in 15 C.F.R. 923.22(e)).
444. Id. 8,399 (to be codified in 15 C.F.R. 923.14).
445. See generally, for citations to the extensive literature on "home rule," Sho Sato, "Municipal
Affairs" in California, 60 Calif. L. Rev. 1055 n.l (1972). "Home rule" is often argued in legislative
debates, not only as a statutory or constitutional right but also as a philosophical preference.
446. 43 Fed. Reg. 8,412 (1978) (to be codified in 15 C.F.R. 923.50(a)).
447. The various ways in which a state may organize its coastal zone management program are
discussed in id. 8,407-10 (to be codified in 15 C.F.R. 923.42).
448. FCZMA 306(d)(2), 16 U.S.C. 1455(d)(2).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
2. The Section 307 Consistency Clauses
A major incentive for qualifying under section 306 is that, after
approval certain federal actions must be "consistent with" the approved
state management program, thus giving the states some leverage over
federal action. The five consistency clauses are summarized below.
Sections 307(c)(1) and (2) govern federal activities. Certain federal
"activities" (such as federal resource management practices) and
"development projects" (such as public works construction) "directly
affecting the coastal zone" must be consistent "to the maximum extent
practicable" with the state's approved management program.449 The
federal agency must notify the state and must make the consistency deter-
mination.450 If the state disagrees, conflicts can be resolved: (1) through
informal discussion, for example, through the Office of Coastal Zone
Management;451 (2) through voluntary mediation by the secretary of com-
merce; or (3) by judicial decision.452
Section 307(c)(3)(A) governs federal licenses and permits. The licensing
or permitting of certain activities "affecting the coastal zone" (for exam-
ple, Water Act section 404 dredge and fill permits) must comply and be
"consistent with" the approved state management program.453 The state's
management plan shall set forth the consistency notification procedure,
and the state shall make the consistency determination.454 If the state
449. Id. 307(c)(1), (2), 16 U.S.C. 1456(c)(1), (2). See 43 Fed. Reg. 10,510-33 (1978) (to be
codified in 15 C.F.R. pt. 930); id. at 10,519 ( 930.31(a)) ("The term 'Federal activity' means any
functions performed by or on behalf of a Federal Agency in the exercise of its statutory respon-
sibilities"); id. at 10,519 ( 930.31(b)) ("A Federal development project is a Federal activity involving
the planning, construction, modification, or removal of public works, facilities, or other structures,
and the acquisition, utilization, or disposal of land or water resources."); id. at 10,518 ( 930.21)
(defines "significantly affecting the coastal zone"); id. at 10,519 ( 930.32) (defines "consistent to the
maximum extent practicable").
450. Id. at 10,520 (to be codified in 15 C.F.R. 930.34).
451. Id. at 10,530 (to be codified in 15 C.F.R. 930.111) ("the parties are strongly encouraged to
make every effort to resolve the disagreement informally. OCZM shall be available to assist the
parties in these efforts.")
452. Id. at 10,521, 10,523, 10,530-31 (to be codified in 15 C.F.R. 930.36, 930.43, 930.44,
930.110-.116. "[J]udicial review... may be sought.. .without first having exhausted the mediation
process." Id. at 10,531 (to be codified in 15 C.F.R. 930.116).
453. See id. at 10,523-26 (to be codified in 15 C.F.R. 930.50-.66) for provisions concerning con-
sistency for activities requiring a federal license or permit.
454. "During management program development, Federal agencies should assist State agencies in
identifying Federal license and permit activities which reasonably can be expected to significantly
affect the coastal zone." Id. at 10,524 ( 930.53(a)). "State agencies shall develop a list of Federal
license and permit activities which are likely to significantly affect the coastal zone and which the State
agency wishes to review for consistency." Id. ( 930.53(b)). "No Federal license or permit described
on an approved list shall be issued by a Federal agency until the requirements of this subpart have
been satisfied." Id. ( 930.53(e)). Unlisted Federal license and permit activities should be monitored,
and state agencies "shall immediately notify Federal agencies and applicants of unlisted activities
significantly affecting the coastal zone which require State agency review." Id. ( 930.54(a)). "[A]ll
applicants for Federal licenses or permits subject to State agency review shall provide in the applica-
tion to the Federal licensing or permitting agency a certification that the proposed activity complies
COASTAL LAND MANAGEMENT
objects, the federal agency must withhold the license or permit until the
dispute is settled. Mediation by the secretary of commerce is available in
the event of serious disagreement between a federal and a state agency as
to whether an activity is subject to consistency review.4" The applicant
may appeal the state determination to the secretary,"56 who can still
approve an action despite an inconsistency with the state's management
program if the proposed action is either (1) "consistent with the objectives
or purposes of the Act" or (2) "necessary in the interest of national
security."4" If the secretary makes one of the above findings, the federal
agency may issue the license or permit, but this finding would not compel
issuance of related state or local permits. The secretary may also consider
the above matters on her or his own initiative.4" The secretary's deter-
mination is subject to judicial review.'"
The outer continental shelf (OCS) consistency provision (section
307(c)(3)(B), added by the 1976 amendments) will be implemented in a
manner similar to the section (c)(3)(A) licensing provision discussed
immediately above.460 "Persons," including federal agencies, who submit
plans to the secretary of the interior "for the exploration or development
of, or production from" OCS leased lands461 must certify that each activ-
ity described in detail in the plan complies with the state's approved
management program and will be carried out in a manner consistent with
the program. The OCS plan and consistency certification is submitted to
the state. If the state objects and if the secretary of commerce fails to
make one of the two required findings (of consistency or of national
security), an amended plan must be submitted.462
Section 307(d) stipulates that federal assistance to state and local
governments for projects affecting the coastal zone must be consistent
with the approved management program.463 Management programs
with and will be conducted in a manner consistent with the State's approved management program.
At the same time, the applicant shall furnish to the State agency a copy of the certification." Id. at
10,525 ( 930.57(a)). "At the earliest practicable time, the State agency shall notify the Federal agency
and the applicant whether the State agency concurs with or objects to a consistency certification." Id.
at 10,526 ( 930.63).
455. Id. at 10,524, 10,530-31 (to be codified in 15 C.F.R. 930.53(e), 930.55, 930.110-.116).
456. Id. at 10,532 (to be codified in 15 C.F.R. 930.125) ("An appellant may file a notice of appeal
with the Secretary with [sic] 30 days of the appellant's receipt of a State agency objection").
457. Id. at 10,531 (to be codified in 15 C.F.R. 930.120).
458. Id. at 10,532 (to be codified in 15 C.F.R. 930.131(a), 930.132).
459. Id. "The decision of the Secretary shall constitute final agency action for the purposes of the
Administrative Procedure Act." Id. (to be codified in 15 C.F.R. 930.130(d)).
460. Memorandum from Robert W. Knecht, Office of Coastal Zone Management, to State Coastal
Zone Management Program Managers, re Federal Consistency, 14 (Mar. 9, 1977).
461. FCZMA 307(c)(3)(B), 16 U.S.C. 1456(c)(3)(B). 43 Fed. Reg. 10,527 (to be codified in 15
C.F.R. 930.72) ("person" defined); id. ( 930.73) ("OCS plan" defined).
462. Id. 10,527, 10,528 (to be codified in 15 C.F.R. 930.76, 930.83).
463. Id. at 10,529 (to be codified in 15 C.F.R. 930.90).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
should set forth geographic areas where federal assistance would be
deemed to affect the coastal zone.464 The Office of Management and
Budget Circular A-95 review process465 is used to assure that the state
agency has an opportunity to review for consistency. "Inconsistent" proj-
ects are not to be approved except upon one of the two findings by the
"Federal consistency" is emerging as a controversial, even divisive,
issue.467 Its implementation could significantly affect outer continental
shelf leasing and offshore oil exploration activities. Many oil companies,
although welcoming the energy impact assistance funds of the 1976
amendments, have expressed considerable concern about the potential
delays that the consistency procedures could cause.468 The oil industry will
probably favor coastal management programs that centralize decision-
making authority. For example, if Texas chooses to qualify under section
306 of the FCZMA, it is likely to opt for "direct state land and water use
planning and regulation" rather than for the state-local, shared-power
model of California. Although several reasons could be advanced for
little, if any, local governmental involvement in the regulatory stage of a
Texas coastal management program, a major political reality is that oil
lobbyists will likely oppose any system that involves local as well as state
and federal decision makers.
Outer continental shelf leasing is also subject to the requirements of sec-
tions 307(c)(1) and (2). Although these requirements are not so strict as the
307(c)(3) licensing requirements,469 the latter requirements must also be
464. Id. (to be codified in 15 C.F.R. 930.94(b)). Provision is made for monitoring projects which
fall outside the described geographic areas. Id. at 10,530 ( 930.98).
465. See 41 Fed. Reg. 2,052 (1976).
466. 43 Fed. Reg. 10,529-30, 10,532 (to be codified in 15 C.F.R. 930.93, 930.95-96, 930.131).
467. Interview with Michael E. Shapiro, National Policy Division Branch, National Oceanic and
Atmospheric Administration, Office of Coastal Zone Management, in Washington, D.C. (Mar. 9,
1977). See, e.g., Proposed Federal Consistency Regulations, supplementary information, 42 Fed.
Reg. 43,592 (1977): "Numerous industry reviewers commented that the application of consistency
requirements to OCS activities could have a substantial adverse impact on the national effort to pro-
mote expeditious offshore energy development." See also 43 Fed. Reg. 10,510 (1978). An important
issue, which will not be explored in this article, concerns the efforts of the American Petroleum Insti-
tute (API) to enjoin the enforcement of the federal consistency clauses under certain states' programs.
See, e.g., the report on American Petroleum Inst. v. Knecht, 8 E.L.R. 65,511, in which the API
sought to enjoin approval of the California program. William Matuszeski, Associate Director for
State Programs, Office of Coastal Zone Management, reported that, as of May 1, 1978, API litiga-
tion was pending with respect to the programs of California, Massachusetts, and Wisconsin.
Matuszeski, supra note 427. See generally, on the consistency issue, Hildreth, supra note 419, at 215;
Karen A. Shaffer, OCS Development and the Consistency Provisions of the Coastal Zone Manage-
ment Act-a Legal and Policy Analysis, 4 Ohio North L. Rev. 595 (1977).
468. Proposed Federal Consistency Regulations, supplementary information, 42 Fed. Reg. 43,592
(1977). But cf. id. 43,593: "The legislative history of the Act indicates that consolidated review under
the OCS consistency provision can significantly expedite OCS oil and gas development." See also 43
Fed. Reg. 10,510 (1978).
469. Knecht, supra note 460, at 2, 3.
COASTAL LAND MANAGEMENT
met "to assure that all Federal license and permit activities described in
detail in OCS plans and which significantly affect the coastal zone are con-
ducted in a manner consistent with approved coastal zone management
The section 307(c)(3)(B) OCS consistency requirement is applicable even
though the activity occurs outside the state's "coastal zone," as long as
the activity is found to affect "any land use or water use in the coastal
zone.""4 Foreseeably, then, a state such as California might gain con-
siderable leverage over major offshore drilling decisions. If a state objects
to the consistency certification, the applicant must submit a new or
amended plan'72 unless the secretary of commerce finds that the activity is
"consistent with the objectives/purposes of the Act" or is "necessary in
the interest of national security."47 Even if the state does not pursue its
remedies through the courts, the possibility of delaying offshore activities
gives the state a much stronger voice in offshore decisions than states have
had over OCS activity in the past.
The supremacy clause of the United States Constitution and the
FCZMA's "variance" procedures (for example, for the national
security)474 ensure that national interests ultimately remain dominant. The
courts will likely be the major arbiters of important state-federal conflicts,
both in reviewing FCZMA administrative determinations and in resolving
constitutional issues of preemption and interference with commerce.'"
The State of Washington's coastal zone management program, which
on June 1, 1976, became the first to receive section 306 approval from the
secretary of commerce, was at issue in Atlantic Richfield Co. (ARCO) v.
Evans.476 Washington's 1975 "Tanker Law""' regulated oil tankers
operating in Puget Sound, prohibited supertankerss," required use of
locally licensed pilots, and prescribed some minimum design specifica-
tions. The Tanker Law was part of Washington's approved section 306
package. ARCO and Seatrain, nevertheless, attacked the Tanker Law as
being violative of the commerce clause, as invading the foreign affairs
powers of the United States, and as being preempted by the Ports and
Waterways Safety Act of 1972 (PWSA),478 which established "a com-
470. 43 Fed. Reg. 10,526-27 (1978) (to be codified in 15 C.F.R. 930.70).
471. FCZMA 307(c)(3)(B), 16 U.S.C. 1456(c)(3)(B).
472. 43 Fed. Reg. 10,528 (to be codified in 15 C.F.R. 930.83).
473. Id. at 10,531-32 (to be codified in 15 C.F.R. 930.121, 930.122, 930.130-.132).
474. See, e.g., FCZMA 307(c)(3), 16 U.S.C. 1456(c)(3) ("that the activity is consistent with the
objectives of this chapter or is otherwise necessary in the interest of national security").
475. See generally notes 382-402 supra and text at same.
476. Atlantic Richfield Co. v. Evans, 9 E.R.C. 1876 (W.D. Wash. 1976), aff'd in part sub nom.,
Ray v. Atlantic Richfield Co., 98 S. Ct. 988 (1978).
477. Wash. Rev. Code Ann. 88.16.170-.190 (Supp. 1976).
478. 33 U.S.C. 1221-27 (Supp. V 1975).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
prehensive federal scheme for regulating the operations, traffic routes,
pilotage, and safety design specifications of tankers.'"79
In March 1978, the United States Supreme Court, in Ray v. Atlantic
Richfield Co.,48" reversed, in part, the lower court's holding that the
PWSA entirely preempted Washington's Tanker Law. Although the
Supreme Court agreed that Congress "intended uniform national stan-
dards for design and construction of tankers that would foreclose the im-
position of different or more stringent state requirements,"481 the Court
held that "registered" vessels, that is, vessels "engaged in trade with
foreign countries," must observe Washington's pilotage requirement. The
Court also concluded that both registered and "enrolled" vessels, that is,
vessels "engaged in domestic or coastwide trade or used for fishing,""8
must comply with the requirement of tug escorts for certain tankers. "A
tug escort provision is not a design requirement.... It is more akin to an
operating rule arising from the peculiarities of local waters."'"8
The State of Washington had argued, in the lower federal court, that
the commerce department's approval of its coastal management plan
waived federal preemption. The court properly observed, however: "We
cannot read the Secretary's approval of a coastal management plan, to
which the Tanker Law is only collaterally related, as foreclosing our
inquiry into the federal preemption of oil tanker regulation."44"
The ARCO litigation-even the lower court's analysis-should not be
read as evidencing a judicial dislike for "cooperative federalism." The
Ports and Waterways Safety Act of 1972, unlike the Water Act, at issue in
the earlier case of Askew v. American Waterway Operators, Inc.,485 did
not express a congressional intent for a strong cooperative role for the
state. Also, the Tanker Law was only a collateral part of Washington's
section 306 package, the major part of which was the Shoreline Manage-
ment Act of 1971.486 Hence, the lower court correctly prevented conjec-
ture about the adequacy of the secretary's review of the Tanker Law487
479. Id., quoted in Atlantic Richfield Co. v. Evans, 9 E.R.C. at 1877.
480. 98 S. Ct. 988 (1978).
481. Id. at 992.
482. Id. at 995 n.7.
483. Id. at 1001.
484. Atlantic Richfield Co. v. Evans, 9 E.R.C. at 1879.
485. 411 U.S. 325 (1973). Askew, which upheld Florida's law imposing strict liability in tort on oil
spillers, involved the Federal Water Pollution Control Act of 1972, not the PWSA, and the holding of
the Court was in part reflective of the congressional policy of "cooperative federalism" in the Water
Act. Atlantic Richfield Co. v. Evans, 9 E.R.C. at 1878.
486. See Atlantic Richfield Co. v. Evans, 9 E.R.C. at 1879.
487. "The Secretary of Commerce can approve a state's coastal management plan (thereby making
it eligible for federal funding) only if 'the views of Federal agencies principally affected by such pro-
gram have been adequately considered.' 16 U.S.C. 1456(b) (1970)." Quoted in Atlantic Richfield
Co. v. Evans, 9 E.R.C. at 1878-79.
COASTAL LAND MANAGEMENT
from obscuring the preemption question, which ultimately must remain
for the judiciary to determine.
The FCZMA's "consistency clauses" improve the possibility that state
and, in some states, local governmental views will be considered when
major federal actions affecting a state's coastal zone are proposed. The
small amount of administrative and judicial experience with consistency
conflict resolution makes it difficult to predict how the federal-state power
balance will be affected by the FCZMA. National defense questions, and
probably significant energy conflicts, will, predictably, be quickly resolved
in favor of federal interests. Numerous federal actions, however, that
might have been cavalierly made without consideration of local impacts
before the FCZMA, are now more likely to reflect state and local views.
Coastal land use decisions need the kind of local, state, and national
perspective that the FCZMA promotes.
B. Environmental Protection Agency Programs
The Environmental Protection Agency (EPA) administers several pro-
grams that have direct and indirect effects on coastal land management.488
Two of them-the Water Act, part of which was discussed above,489 and
the Clean Air Act"49-are particularly important because of their potential
land use control aspects.
Both acts are models of "cooperative federalism." For most functions,
they reject assigning exclusive jurisdiction in any discrete geographic area
to either federal or state government. Both also reject requiring dual
federal and state permits. Instead, both acts incorporate a more
sophisticated model of shared power in which policies, standards, and
guidelines are established at the federal level, with implementation to the
maximum extent possible at the state or local level. This design for
allocating power between two levels of government is similar to the state-
local institutional arrangements in the American Law Institute's Model
Land Development Code,491 Florida's state land regulatory program,492
and California's Coastal Act of 1976.493 The advantages of this approach
include avoidance of needless administrative duplication and the waste of
energies in delineating the respective regulatory spheres.
488. See note 415 supra. The Safe Drinking Water Act, 42 U.S.C. 300f to 300j-9 (Supp. V 1975),
also has considerable land use control potential. See generally Seagal V. Wheatley & Roland
Casteneda, Protection of Underground Drinking Water Supplies-the Gonzalez Amendment to the
Safe Drinking Water Act, 8 St. Mary's L.J. 40 (1976); Thomas J. Douglas, Safe Drinking Water Act
of 1974: History and Critique, 5 Envt'l Affairs 501 (1976).
489. 33 U.S.C. 1251-1376. See note 15 et seq. supra and text at same.
490. 42 U.S.C.A. 7401-7642.
491. ALI Model Land Development Code (1976).
492. Florida Environmental Land and Water Management Act of 1972, Fla. Stat. Ann. ch. 380
(West 1974 & Cum. Supp. 1978).
493. Cal. Pub. Res. Code 30000-30900 (West 1977 & Cum. Supp. 1978).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
One court explained the reasons for this approach as follows:
In enacting the Clean Air Act Amendments of 1970, Congress attempted
to foster a symbiosis between two perceived needs. First, Congress wanted
to preserve the basic state and local control of the design and enforcement
of air pollution regulations. Besides a deference to the states, such a state
role permitted more awareness of individual and local problems to be con-
sidered in formulating pollution abatement plans.
Second, Congress sensed that there was a rising dissatisfaction with the
results being attained by the states, operating under the then existing legisla-
tion. Therefore, there was a desire for federal standards and enforcement.
Further, Congress, apprised of the public concern, manifested its insistence
on expedition in cleaning the air.494
Federal regulation of air and water pollution reflects two distinct
approaches.4" One approach regulates pollutant discharges-"effluents"
(water) and "emissions" (air)-at their source. The other approach
regulates the quality of the receiving medium, that is, the quality of the
"ambient" air or water, as it may be affected by all sources of pollution.
There are several classifications of sources. For example, the air-
polluting source may be "mobile,"49" such as an automobile, or "station-
ary," such as a cement plant.'9 Or the source may be one "which attracts
or may attract mobile source activity that results in emissions of a
pollutant."498 These "indirect sources" include, for example, highways
and roads, parking facilities, retail, commerical, and industrial facilities,
recreation, amusement, sports and entertainment facilities, airports,
office and government buildings, apartment and condominium buildings,
and educational facilities.499
Water pollution regulations similarly distinguish between "point
sources" (for example, industrial plants or municipal sewage treatment
plants)500 and nonpointt sources" (for example, "agriculturally... related
494. Duquesne Light Co. v. EPA, 481 F.2d 1, 3 (3d Cir. 1973), vacated, 427 U.S. 902 (1976), in
light of Union Elec. Co. v. EPA, 427 U.S. 246 (1976).
495. See generally 1 Frank P. Grad, Treatise on Environmental Law 2-1 (air pollution), 3-1 (water
pollution) (New York: Matthew Bender, 1977); David P. Currie, Federal Air-Quality Standards and
Their Implementation, 1976 A.B.F. Res. J. 365; John E. Montgomery, Control of Agricultural Water
Pollution: A Continuing Regulatory Dilemma, 1976 U. Ill. L.F. 533; Train, supra note 415.
496. See, e.g., Clean Air Act 202, 42 U.S.C.A. 7521 (emission standards for new motor vehicles
or new motor vehicle engines).
497. See, e.g., id. 111, 42 U.S.C.A. 7411 (standards of performance for new stationary
sources). "The term 'stationary source' means any building, structure, facility, or installation which
emits or may emit any air pollutant." Id. 111(a)(3), 42 U.S.C.A. 7411(a)(3).
498. See 40 C.F.R. 52.22(b)(i) (1977).
499. See id. for examples. In the Clean Air Act Amendments of 1977, however, Congress
weakened the indirect source review program. See note 555 infra and text at same.
500. See Water Act 502(14), 33 U.S.C.A. 1362(14) (definition of "point source": "any
discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding opera-
tion, or vessel or other floating craft, from which pollutants are or may be discharged. This term does
not include return flows from irrigated agriculture").
No. 2 COASTAL LAND MANAGEMENT 261
nonpoint sources of pollution, including runoff from manure disposal
areas, and from land used for livestock and crop production" and
"construction activity related sources of pollution").501 It is sometimes
difficult to distinguish whether a source is point or nonpoint. Consider,
for example, the runoff from industrial sites or parking lots that then
flows into a drain ultimately discharging into navigable waters.502
Whether the pollution source be mobile or stationary, direct or indirect,
point or nonpoint, however, it is often closely connected with a facility,
building, structure, or installation on land. Even when the source is an
automobile or other moving source, the placement of highways, parking
lots, or similar land use decisions will affect air and water pollution.
Both the air and water acts have ambitious goals. The Clean Air Act,
for example, proposes "to protect and enhance the quality of the Nation's
air resources so as to promote the public health and welfare and the pro-
ductive capacity of its population."503 Similarly, the Water Act is intended
"to restore and maintain the chemical, physical, and biological integrity
of the Nation's waters."504 The techniques for achieving these goals in-
clude encouraging states to enact and enforce planning and regulatory
measures. Air and water pollution problems cannot be solved without
considering questions of the location, quantity, and quality of develop-
ment, as well as the pace and sequence at which the development occurs.
Both acts address these questions and establish techniques for allocating
The heart of the Clean Air Act is its requirement that each state, or
upon the state's failure, the EPA, adopt "a plan which provides for imple-
mentation, maintenance, and enforcement"55' of both the "national
primary ambient air quality standard"'56 and "national secondary
ambient air quality standard"507 in each air quality control region. The
Clean Air Act Amendments of 1977 require each state to identify its air
quality control regions as "attainment"''08 or "nonattainment"509 areas.
501. Id. 208(b)(2)(F), (H), 33 U.S.C.A. 1288(b)(2)(F), (H).
502. Compare definition of "point source," supra note 500, with definition of nonpointt source."
503. Clean Air Act 101(b)(l), 42 U.S.C.A. 7401(b)(l).
504. Water Act 101(a), 33 U.S.C.A. 1251(a).
505. Clean Air Act 110(a)(l), 42 U.S.C.A. 7410(a)(1) (state implementation plans for national
primary and secondary ambient air quality standards).
506. Primary standards are the "ambient air quality standards the attainment and maintenance of
which...are requisite to protect the public health." Id. 109(b)(l), 42 U.S.C.A. 7409(b)(1).
507. Secondary standards must "specify a level of air quality the attainment and maintenance of
which...is requisite to protect the public welfare from any known or anticipated adverse effects
associated with the presence of such air pollutant in the ambient air." Id. 109(b)(2), 42 U.S.C.A.
508. See id. 160, 42 U.S.C.A. 7470.
509. Id. 171, 42 U.S.C.A. 7501. A nonattainment area means that "for any air pollutant an
area which is shown by monitored data or which is calculated by air quality modeling... exceeds] any
national ambient air quality standard." Id. 171(2), 42 U.S.C.A. 7501(2). The term includes sub-
parts (d)(1)(A) through (C) of id. 107, 42 U.S.C.A. 7407.
262 AMERICAN BAR FOUNDATION RESEARCH JOURNAL 1978:169
Those "clean air" areas determined to be attainment, or clean air, areas
are subject to regulations designed to prevent significant deterioration of
air quality.510 Those areas classified as nonattainment areas are subject, at
least until July 1, 1979, and perhaps later, to the "offset policy."51' The
nonsignificant deterioration and offset policies, both discussed below,5'2
provide excellent illustrations of the land use control potential of the
Clean Air Act.
Prevention of significant deterioration was not included in the express
criteria for approving state implementation plans in the Clean Air Act of
1970; however, legislative history and administrative implementation con-
vinced the courts3' to uphold the concept since one of the primary pur-
poses of the Clean Air Act is "to protect and enhance the quality of the
Nation's air resources."514 The Clean Air Act Amendments of 1977
require that implementation plans "contain emission limitations and such
other measures as may be necessary.., to prevent significant deterioration
of air quality in each region."'5
The nonsignificant deterioration policy seeks to ensure "that economic
growth will occur in a manner consistent with the preservation of existing
clean air resources,"5'1 in areas of the nation that currently have air
quality better than national ambient standards. Initially, all these clean air
areas are designated as class I or class II. Certain international and
national parks and wilderness areas are mandatory class I areas and may
not be redesignated. Remaining clean air areas are initially classified as
class II, in which moderate industrial development will be allowed. Class
II areas may be redesignated by the state as class I or III if the governor
specifically approves, after consultation with the state legislature, and if
the appropriate local governments concur. For each area classification
there are maximum allowable increments and ceilings for pollutants,"5
with class I having the most stringent requirements to prevent significant
deterioration of air quality. All "major emitting facilities"51 to be con-
structed or modified must receive a permit before expansion is com-
menced. A detailed preconstruction review"' is required as part of the
510. See id. 160-169A, 42 U.S.C.A. 7470-7491.
511. Pub. L. No. 95-95, 129(a) (codified at 42 U.S.C.A. 7502).
512. See notes 513-26 supra and text at same.
513. See 344 F. Supp. 253 (D.D.C.) aff'd mem., 4 E.R.C. 1815 (D.C. Cir. 1972), aff'dper curiam
by an equally divided Court sub nom. Fri v. Sierra Club, 412 U.S. 541 (1973).
514. Clean Air Act 101(b)(1), 42 U.S.C.A. 7401(b)(1) (emphasis added).
515. Id. 161, 42 U.S.C.A. 7471.
516. Id. 160(3), 42 U.S.C.A. 7470(3).
517. Id. 162-164, 42 U.S.C.A. 7472-7474.
518. Major emitting facilities include 28 types of stationary sources which emit or could potentially
emit 100 or more tons per year of any air pollutant and any other source not on the list which has the
potential to emit 250 or more tons of any air pollutant. 42 Fed. Reg. 57,473 (1977).
519. Clean Air Act 165, 42 U.S.C.A. 7475.
COASTAL LAND MANAGEMENT
regulatory process, and each state must revise its implementation plan to
include a permit system which will prevent significant deterioration.
The nonsignificant deterioration policy can have profound effects on
growth. If an area is designated class I, for example, pollutant-emitting
sources will probably not be approved. This should discourage pollutant-
emitting industries from relocating in clean areas, and should thereby
reduce the tendency for the Clean Air Act to force the air of every part of
the nation to find some lowest common denominator.
The significant deterioration policy will also require states (or the EPA
administrator if the states fail to comply) to consider using regulatory
techniques based on regional plans. The California Coastal Act of 1976
reflects one approach to the problem. An applicable policy in approving
"local coastal programs" or in processing coastal permit decisions is as
New development, except as otherwise provided in this division, shall be
located within, contiguous with, or in close proximity to, existing developed
areas able to accommodate it or, where such areas are not able to accom-
modate it, in other areas with adequate public services and where it will not
have significant adverse effects, either individually or cumulatively, on
The California act also provides that "[n]ew development shall...[b]e
consistent with requirements imposed by an air pollution control district
or the State Air Resources Control Board as to each particular
In those "dirty" areas designated nonattainmentt," an "emissions off-
set" policy522 to provide "reasonable further progress" toward the attain-
ment of national ambient air quality standards must be enforced until July
1, 1979.523 A major54 new or modified source may be granted a construc-
tion permit in a nonattainment area only if it satisfies several require-
ments, including reducing emissions from existing sources on a greater
than one-for-one basis with the proposed source.525 In effect, the offset
policy allows industrial growth in areas violating federal ambient air
quality standards if certain environmental conditions are met. For any
increase in potential pollutant discharges from the proposed source, there
must be a greater reduction in pollutant levels for that particular pollutant
520. Cal. Pub. Res. Code 30250 (West 1977).
521. Id. 30253(3) (West 1977).
522. See 41 Fed. Reg. 55,524-30 (1976); Clean Air Act Amendments of 1977, Pub. L. No. 95-95,
129(a), 42 U.S.C.A. 7502.
523. Pub. L. No. 95-95, 129(a)(1), 42 U.S.C.A. 7502.
524. A major source is one having an allowable emission rate equal to or greater than 100 tons
annually of all criteria pollutants except carbon monoxide, for which the applicable level is 1,000 tons
per year. 41 Fed. Reg. 55,524-25 (1976).
525. See 41 Fed. Reg. 55,524 (1976).
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
from any existing source, including external sources not owned or
operated by the applicant.
The emission offset policy may cause disparate effects on regional
growth. Those areas that are already polluted, usually large metropolitan
areas, will be the areas that can provide offsets and thus bring in new
industrial development. Those nonattainment areas that have little
industry at present may find it difficult to attract new industry because
there will be few, if any, offsets to provide. The policy also has been
criticized because those industrial facilities that have already applied strin-
gent emission limitations will have no "internal" offsets if they wish to ex-
pand. Conversely, those "old, heavily polluting facilities" that have not
attempted to improve their pollutant emissions will have offsets, either for
their own expansion or to sell to others.526
The implementation plan requirements of section 110(a)(2) of the Clean
Air Act of 1970 were construed by the Supreme Court as evidencing a con-
gressional determination that clean air objectives should take precedence
over claims of economic or technological infeasibility.527 The requirements
were of a "technology-forcing character"528 and were "expressly designed
to force regulated sources to develop pollution control devices that might
at the time appear to be economically or technologically infeasible."529
The Clean Air Act Amendments of 1977, however, retreat from the
technology-forcing standards of the earlier act,530 because it had become
apparent that the initial, ambitious deadlines could not be met and that
industrial growth would be severely curbed if the standards were strictly
States ought to be able to consider social, energy, environmental, and
economic effects in their implementation plans.53 California provides an
example. Although the California Coastal Act of 1976 reflects a strong
environmental protection purpose (e.g., thatht the permanent protection
of the state's natural and scenic resources is a paramount concern to pres-
526. EPA Policy on Growth in Dirty Areas Rapped by State, Local, Industry Groups,  7
Envir. Rep.-Cur. Dev. (BNA) 1683.
527. Union Elec. Co. v. EPA, 427 U.S. 246 (1976). See Samuel A. Bleicher, Economic and
Technical Feasibility in Clean Air Act Enforcement Against Stationary Sources, 89 Harv. L. Rev. 316
(1975); 1 Grad, supra note 495, 2.03, at 2-90.12(19).
528. 427 U.S. at 257 (quoting Train v. NRDC, 421 U.S. at 91 (1975)).
529. 427 U.S. at 257. See also Note, The Clean Air Act: "Taking a Stick to the States," 25 Clev. St.
L. Rev. 371 (1976).
530. Comment, 95th Congress: Midterm Progress on Environmental Issues Reflects Conflicting
Priorities, 8 Envir. L. Rep. 10,004, 10,006 (1978).
531. In a compromise move to ensure passage of the Clean Air Act Amendments of 1977, the
Senate allowed the House to delete the term "land-use" from the bill "with the understanding that
preconstruction reviews of direct sources are to include consideration of energy, environmental and
economic impacts." Clean Air Act Amendments of 1977, House Conference Report, No. 95-564,
95th Cong., 1st Sess. Aug. 3, 1977 [to accompany H.R. 6161], at 127, reprinted in  U.S. Code
Cong. & Ad. News 1502, 1508.
COASTAL LAND MANAGEMENT
ent and future residents of the state and nation"),532 it also declares a goal
of assuring "orderly, balanced utilization and conservation of coastal
zone resources taking into account the social and economic needs of the
people of the state."33 The California act particularly draws attention to
the deliberate trade-offs that may be required to respond to the energy
crisis and other economic needs of the coastal zone:
The Legislature further finds and declares that, notwithstanding the fact
electrical generating facilities, refineries, and coastal-dependent
developments, including ports and commercial fishing facilities, offshore
petroleum and gas development, and liquified natural gas facilities, may
have significant adverse effects on coastal resources or coastal access, it
may be necessary to locate such developments in the coastal zone in order to
ensure that inland as well as coastal resources are preserved and that orderly
economic development proceeds within the state."5
This general policy is further refined by a specific policy, which qualifies
the basic policy of encouraging coastal-dependent industrial facilities to
locate or expand within existing sites, as follows:
[W]here new or expanded coastal-dependent industrial facilities cannot
feasibly be accommodated consistent with other policies of this division,
they may nonetheless be permitted in accordance with this section and Sec-
tions 30261 [tanker facilities] and 30262 [oil and gas development] if (1)
alternative locations are infeasible or more environmentally damaging; (2)
to do otherwise would adversely affect the public welfare; and (3) adverse
environmental effects are mitigated to the maximum extent feasible."'
The Water Act also has several significant land use provisions. The
Corps of Engineers' section 404 permit program was discussed in part
II.536 The Water Act also has a "non-significant deterioration" potenti-
ality similar to the Clean Air Act policy.537 Two programs-the section
402 National Pollutant Discharge Elimination System (NPDES) and the
section 208 Areawide Planning program-deserve special discussion.
The Water Act establishes an affirmative legal duty not to discharge any
pollutant into navigable waters538 unless certain conditions are met,
including receiving an NPDES permit.539 The regulatory authority of sec-
532. Cal. Pub. Res. Code 30001(b) (West 1977).
533. Id. 30001.5(b).
534. Id. 30001.2.
535. Id. 30260.
536. See, e.g., notes 94-149 supra and text at same.
537. "The objective of this chapter is to restore and maintain the chemical, physical, and biological
integrity of the Nation's waters." Water Act 101(a), 33 U.S.C.A. 1251(a) (emphasis added). Com-
pare the Clean Water Act with the Clean Air Act, notes 513-14 supra and text at same. See generally
N. William Hines, A Decade of Nondegradation Policy in Congress and the Courts: The Erratic Pur-
suit of Clean Air and Clean Water, 62 Iowa L. Rev. 643 (1977).
538. Water Act 301(a), 33 U.S.C.A. 1311(a).
539. Id. 402, 33 U.S.C.A. 1342. See generally 1 Grad, supra note 495, 3.03, at 3-139.
AMERICAN BAR FOUNDATION RESEARCH JOURNAL
tion 402 is initially vested in the administrator of EPA.540 However, the
governor of a state may propose a program in which the state would
administer its own permit program for discharges into navigable waters
within its jurisdiction. Federal supervision of this state program would be
accomplished as follows.
First, the governor must submit to the EPA administrator a "full and
complete description of the program," with a statement from the state's
attorney general that the state's laws provide adequate authority to carry
out the program. If the EPA administrator determines that the submitted
state program does not meet certain requirements, he need not approve it,
but instead must notify the state of the revisions or modifications
necessary to conform.s41 Second, assuming such a state program does go
into effect, the EPA administrator has additional means of supervision by
his power to withdraw approval under certain circumstances.542 Third, in
the regulatory stage, the state must transmit to the EPA administrator a
copy of each permit application and notify the administrator of any action
related thereto; the administrator has, in effect, a discretionary veto power
over a state decision to grant a permit.543
The NPDES permit is required for discharges from any "point
source."544 Section 208, however, creates a federal system of areawide
planning that eventually could also result in significant land use controls
over nonpointt sources" such as agricultural and silvicultural activities
(including run-off from fields, crop, and forest lands), mining activities
(including run-off from new, current, and abandoned surface and
underground mines), all construction activity (including run-off from the
facilities resulting from such construction), the disposal of pollutants in
wells or in subsurface excavations, salt water intrusion into freshwater,
and hydrographic modifications.545
The section 208 program, which has been implemented in a dilatory
fashion,546 could be an effective technique for achieving the Water Act's
national interim goal, wherever attainable, of swimmable water by 1983
and national goal of elimination of pollutant discharges into navigable
waters by 1985.547 Water pollution is caused by run-off from nonpointt
540. Water Act 402(a)(l), 33 U.S.C.A. 1342(a)(l).
541. Id. 402(b), 33 U.S.C.A. 1342(b).
542. Id. 402(c)(l), (3), 33 U.S.C.A. 1342(c)(1), (3).
543. Id. 402(d)(1), (2), 33 U.S.C.A. 1342(d)(1), (2).
544. Id. 502(14), 33 U.S.C.A. 1362(14) (definition of "point source").
545. Id. 1288(b)(2)(F)-(K). Note the provision in 208(b)(2)(F)-(K) that allows land use require-
ments to control pollution from these sources.
546. See generally Michael Jungman, Areawide Planning Under the Federal Water Pollution Con-
trol Act Amendments of 1972: Intergovernmental and Land Use Implications, 54 Tex. L. Rev. 1047,
547. See Water Act 101(a)(1), (2), 33 U.S.C.A. 1251(a)(l), (2).