1 33 U.S.C. § 403 (1970).Google Scholar

2 33 U.S.C.A. § 1344.Google Scholar

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).Google Scholar

4 Act of Mar. 16, 1802, ch. 9, §§ 26-29, 2 Stat. 137.Google Scholar

5 Office of the Chief of Engineers, Memorandum, Legal Review of Corps Regulatory Permit Laws I (Apr. 3, 1974); Power, The Federal Role in Coastal Development, supra note 3.Google Scholar

6 33 U.S.C. § 403 (1970).Google Scholar

7 33 U.S.C.A. § 1344.Google Scholar

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).Google Scholar

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).Google Scholar

10 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. § 320.4(a)(1)).Google Scholar

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 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).Google Scholar

12 33 U.S.C.A. § 1344.Google Scholar

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 U.S.C.A. § 1344(g).Google Scholar

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).Google Scholar

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).Google Scholar

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.Google Scholar

17 Id.§ 404(b), 33 U.S.C.A. § 1344(b).Google Scholar

18 33 U.S.C.A. § 1311(a).Google Scholar

19 373 F. Supp. 665 (M.D. Fla. 1974).Google Scholar

20 42 Fed. Reg. 37,144 (1977) (to be codified in 33 C.F.R. § 323.2(a)).CrossRefGoogle Scholar

21 See, e.g., 33 U.S.C.A. § 1344(g). See also Note, Federal Control of Wetlands: The Effectiveness of Corps' Regulations Under § 404 of the FWPCA, 51 Notre Dame Law. 505 (1976), discussing problems with corps administration.Google Scholar

22 392 F. Supp. 685 (D.D.C. 1975).Google Scholar

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”).Google Scholar

24 § 502(7), 33 U.S.C.A. § 1362(7).Google Scholar

25 33 U.S.C. § 403 (1970).Google Scholar

26 United States v. Joseph G. Moretti, Inc., 478 F.2d 418, 420 (5th Cir. 1973).Google Scholar

27 See notes 29-93 infra and text at same.Google Scholar

28 430 F.2d 199 (5th Cir. 1970), cert denied, 401 U.S. 910 (1971). See notes 164-79 infra and text at same.Google Scholar

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 citations 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 servitude, and admiralty] … does not necessarily mean that each is co-extensive with the other”).Google Scholar

30 See notes 96-147 infra and text at same.Google Scholar

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).Google Scholar

32 42 Fed. Reg. 37,161 (1977) (to be codified in 33 C.F.R. § 329.4).Google Scholar

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).Google Scholar

34 22 U.S. (9 Wheat.) 1 (1824).Google Scholar

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).Google Scholar

36 311 U.S. 377, 406 (1940).Google Scholar

37 Id. at 404.Google Scholar

38 Id. at 407.Google Scholar

39 Id. at 409.Google Scholar

40 Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941).Google Scholar

41 Id. at 515 n.4.Google Scholar

42 Id. at 523 (citing Oklahoma v. Texas, 258 U.S. 574, 591 (1921)).Google Scholar

43 Id. at 520.Google Scholar

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. Atkinson).Google Scholar

45 319 F.2d 397 (5th Cir. 1963).Google Scholar

46 Id. at 399 (emphasis added).Google Scholar

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).Google Scholar

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.Google Scholar

49 526 F.2d at 1298.Google Scholar

50 174 U.S. 690 (1899).Google Scholar

51 Id. at 708; see also Barker, Neil J., 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).Google Scholar

52 408 F. Supp. 42 (D. Hawaii 1976).Google Scholar

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 legislation for governing the annexed Hawaiian Islands. Id. at 52 n.25.Google Scholar

54 Hawaii Const., art. X, § 3; see also 408 F. Supp. at 51.Google Scholar

55 408 F. Supp. at 46-47.Google Scholar

56 Id. at 52.Google Scholar

57 Id. at 53.Google Scholar

58 42 Fed. Reg. 37,162 (1977) (to be codified in 33 C.F.R. §§ 329.6, 329.7).Google Scholar

59 430 F.2d 199 (5th Cir. 1970), cert denied, 401 U.S. 910 (1971). See notes 164-79 infra and text at same.Google Scholar

60 United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1298 (5th Cir. 1976).Google Scholar

61 United States v. Appalachian Elec. Power Co., 311 U.S. 377, 409 (1940).Google Scholar

62 42 Fed. Reg. 37,164 (1977) (to be codified in 33 C.F.R. § 329.15(c)).Google Scholar

63 United States v. Virginia Elec. & Power Co., 365 U.S. 624, 628 (1961) (reciting the test enunciated 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)).Google Scholar

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 navigation servitude.Google Scholar

65 See notes 47-51 supra and text at same.Google Scholar

66 42 Fed. Reg. 37,163 (1977) (to be codified in 33 C.F.R. § 329.12(a)).Google Scholar

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.Google Scholar

68 42 Fed. Reg. 37,163 (1977) (to be codified in 33 C.F.R. § 329.12(b)).Google Scholar

69 Id. Google Scholar

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).Google Scholar

71 33 C.F.R. § 209.150(i)(1) (1970) (noting dredging as an exception to this general policy).Google Scholar

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).Google Scholar

73 33 C.F.R. § 209.150(b)(1) (1972). Compare 42 Fed. Reg. 37,161 (1977) (to be codified in 33 C.F.R. § 328.5(b)).Google Scholar

74 The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870).Google Scholar

75 Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851).Google Scholar

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).Google Scholar

77 33 C.F.R. § 209.120 (1974).Google Scholar

78 42 Fed. Reg. 37,144 (1977) (to be codified in 33 C.F.R. § 323.2(c)).CrossRefGoogle Scholar

79 See 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. § 320.4(b)(2)).Google Scholar

80 42 Fed. Reg. 37,137 (1977) (to be codified in 33 C.F.R. § 320.4(b)(4)) (emphasis added).Google Scholar

81 Interview with William Hedeman, Esq., Office of General Counsel, U.S. Army Corps of Engineers, in Washington, D.C. (Apr. 23, 1975).Google Scholar

82 498 F.2d 597 (3d Cir. 1974), cert denied, 420 U.S. 927 (1975).Google Scholar

83 498 F.2d at 610.Google Scholar

84 See, e.g., Current Developments, Development of Florida Wetlands Seen “Devastating” Environment, [1977] 7 Envir. Rep.-Cur. Dev. (BNA) 1938 (reporting on an Apr. 19, 1977, report “prepared by Inform, a nonprofit research group in New York”).Google Scholar

85 See note 81 supra. Google Scholar

86 389 F. Supp. 602 (S.D. Fla. 1975), rev'd in part, 526 F.2d 1293 (5th Cir. 1976).Google Scholar

87 389 F. Supp. at 607.Google Scholar

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).Google Scholar

89 United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976).Google Scholar

90 Id. at 1299.Google Scholar

91 Weiszmann v. District Eng'r, U.S. Army Corps of Eng'rs, 7 E.R.C. 1523, 1525 (S.D. Ha. 1975), rev'd in part, 526 F.2d 1302 (5th Cir. 1976).Google Scholar

92 526 F.2d 1302 (5th Cir. 1976).Google Scholar

93 Cf. United States v. Sexton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976).Google Scholar

94 33 U.S.C.A. § 1344.Google Scholar

95 Note also the possibility of the individual states assuming this process. Water Act § 404(g), 33 U.S.C.A. § 1344(g).Google Scholar

96 See notes 29-93 supra and text at same.Google Scholar

97 Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).Google Scholar

98 Water Act § 502(7), 33 U.S.C.A. § 1362(7).Google Scholar

99 373 F. Supp. 665 (M.D. Fla. 1974). See Comment, Federal Jurisdiction-Water Pollution Control-Federal Water Pollution Control Amendments of 1972 Reach Polluting Activities Occurring Above Mean High-Water Line, 2 Fla. St. U.L. Rev. 799 (1974).Google Scholar

100 373 F. Supp. at 673-74.Google Scholar

101 Id. at 671-72, 673. See notes 325-81 infra and text at same for discussion of the commerce clause.Google Scholar

102 373 F. Supp. at 673.Google Scholar

103 Id. at 674-76.Google Scholar

104 Id. at 675 (citing Cooper, Ecological Considerations, Coastal Zone Management 129 (J. Hite & J. Stepp eds. 1971)).Google Scholar

105 Id. at 671-72 (citing 2 Senate Committee on Public Works Report, submitted with S. 2770, at 1495) (emphasis added by court).Google Scholar

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 Experience 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 (1973).Google Scholar

107 364 F. Supp. 349 (W.D. Ky. 1973), aff'd, 504 F.2d 1317 (6th Cir. 1974).Google Scholar

108 504 F.2d 1317 (6th Cir. 1974). See notes 343-45 infra and text at same for further discussion of Ashland. Google Scholar

109 504 F.2d at 1324 (citing legislative history at 118 Cong. Rec. 33756-57 (1972) and Conference Report at 144).Google Scholar

110 Id. at 1325 (quoting Congressman Dingell).Google Scholar

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 “[e]very 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).Google Scholar

112 See Environmental Protection Agency Memorandum to Regional Offices on the Meaning of the Term “Navigable Waters,” [1976] 6 Envir. L. Rep. (ELI) 46,318.Google Scholar

113 33 C.F.R. § 209.120(d)(1) (1974).Google Scholar

114 Letter from Russell E. Train, Administrator, EPA, to Lt. Gen. W. C. Gribble, Jr., Chief, Corps of Engineers (June 19, 1974).Google Scholar

115 Letter from Maj. Gen. D. A. Raymond, Acting Chief of Engineers, to Russell E. Train (Aug. 9, 1974).Google Scholar

116 See notes 277-89 infra and text at same. The Department of Justice expressed a view consistent 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 provideGoogle Scholar

117 Complaint, NRDC v. Callaway, Civ. No. 74-1242 (D.D.C., Aug. 16, 1974).Google Scholar

118 Letter, with attached position paper, from Howard H. “Bo” Callaway, Secretary of the Army, to Roy L. Ash, Director, OMB (Feb. 5, 1975).Google Scholar

119 “The major problem … is one of available resources.” An “estimated 1,750 additional personnel and $53 million [annual allocation would be required] to administer an expanded program.” Letter id. Google Scholar

120 The position paper,id., presents the secretary's position on incidental costs of possible compensable 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 “[m]ost 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)]… [t]here 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 continued, 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.Google Scholar

121 “A change in regulatory jurisdiction … would result in a significant change in the Administration'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 planning. This, quite frankly, is the substantive Section 404 issue and not whether wetlands should be protected as your earlier editorial [Wetlands and the Corps of Engineers] portrayed.”Google Scholar

“The magnitude of the court-ordered expanded permit program could increase the Corps jurisdiction to more than 3§ 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.Google Scholar

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.Google Scholar

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.Google Scholar

124 The program “would also bring the activities of other federal agencies, such as the Department of the Agriculture Soil Conservation Service under the review authority of the Department of the Army.”Id. Google Scholar

125 Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).Google Scholar

126 Proposed regulations to supersede portions of 33 C.F.R. pt. 209, 40 Fed. Reg. 19,766 (1975).Google Scholar

127 Release, News, U.S. Army Corps of Engineers, Jacksonville District (May 6, 1975).Google Scholar

128 Letter from Sen. Russell B. Long to Sen. Jennings Randolph, Chairman, Senate Public Works Committee (May 14, 1975).Google Scholar

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).Google Scholar

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 Boxer, Daniel E., Every Pond and Puddle-or, How Far Can the Army Corps [of Engineers] Stretch the Intent of Congress, 9 Nat. Resources Law. 467 (1976).Google Scholar

131 N.Y. Times, May 9, 1975, as quoted in News Release, supra note 130.Google Scholar

132 Detroit Free Press, May 15, 1975, at 8-A, col. 1.Google Scholar

133 Letter from Lt. Gen. W. C. Gribble, Jr., Chief of Engineers, Army Corps of Engineers, to Gov. Reubin Askew (May 3, 1975).Google Scholar

134 Letter from Gov. Reubin Askew, to Lt. Gen. W. C. Gribble, Jr., Chief of Engineers, Army Corps of Engineers (May 13, 1975).Google Scholar

135 Motion to Intervene, NRDC v. Callaway, Civ. No. 74-1242 (Jan. 17, 1975).Google Scholar

136 Governor and Cabinet, State of Florida, Resolution (Jan. 21, 1975).Google Scholar

137 The resolution (id.) desired that the § 404 conflict be resolved “in favor of the broadest protection 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 environment” 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).Google Scholar

138 Letter, supra note 129.Google Scholar

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.Google Scholar

140 Id.§ 380.05(17).Google Scholar

141 Interview with Joseph W. Landers, Jr., now Secretary, Department of Environmental Regulation, in Tallahassee, Fla. (Jan. 20, 1976).Google Scholar

142 § 404(b) 33 U.S.C.A. § 1344(b).Google Scholar

143 § 401(a)(1), 33 U.S.C.A. § 1341(a)(1). The state may be deemed to have waived its certification 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. Google Scholar

144 See notes 134-39 supra and text at same.Google Scholar

145 Water Act § 404(g), 33 U.S.C.A. § 1344(g).Google Scholar

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.Google Scholar

147 See Natural Resources Defense Council, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975).Google Scholar

148 See House Panel Okays Water Act Changes Limiting Dredge, Fill Regulation, [1976] 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 Controversy 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.Google Scholar

149 House Panel Okays Changes, supra note 148.Google Scholar

150 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. § 320.4(a)).Google Scholar

151 Corps Memo, supra note 5, at 5 (citing Petterson v. Resor, 3 E.R.C. 1170 (D.C. Ore. 1972)).Google Scholar

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.Google Scholar

153 Corps Memo, supra note 5, at 16.Google Scholar

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).Google Scholar

155 See notes 328-57 infra and text at same.Google Scholar

156 16 U.S.C. §§ 661-666c (1976).Google Scholar

157 16 U.S.C. §§ 470-470t (1976).Google Scholar

158 42 U.S.C. §§ 4321-4347 (1970 & Supp. V 1975).Google Scholar

159 § 401(a)(1) 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 prerequisite to obtaining a permit, 33 U.S.C.A. § 1341(a)(1).Google Scholar

160 16 U.S.C. §§ 1451-1464 (1976). See § 307(c)(3) (16 U.S.C. § 1456(c)(3)) of the act, which provides 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 the program.”Google Scholar

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.”Google Scholar

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 the interior.Google Scholar

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)).Google Scholar

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).Google Scholar

165 154 So: 2d at 182-83.Google Scholar

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.Google Scholar

167 See Zabel v. Pinellas County Water & Navigation Control Auth., 171 So. 2d 376, 379 (Fla. 1965).Google Scholar

168 See Carter, Luther J., 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 land.Google Scholar

169 See Zabel v. Pinellas County Water & Navigation Control Auth., 154 So. 2d 181, 183 (Fla. 2d Dist. Ct. App. 1963).Google Scholar

170 Zabel v. Pinellas County Water & Navigation Control Auth., 171 So. 2d 376 (Fla. 1965).Google Scholar

171 Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert denied, 401 U.S. 910 (1971).Google Scholar

172 Id. at 203.Google Scholar

173 Id. at 211. The court was clearly aware that this was a legal issue of first impression and one of “spectacular public importance.”Google Scholar

174 Id. at 208.Google Scholar

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.Google Scholar

176 430 F.2d at 209.Google Scholar

177 Id. at 210-11 (citing the Memorandum of Understanding at 210 n.21).Google Scholar

178 Id. at 211.Google Scholar

179 See, e.g., Recent Developments, Environmental Law: Ecology Held Valid Criterion for Denying Dredge and Fill Permit Under Section 10, Rivers and Harbors 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. 766 (1971).Google Scholar

180 31 La. L. Rev. at 667. The Duke comment also focused on this problem, noting that “[n]othing 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 uncertainty 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.Google Scholar

181 See generally Kenneth Culp Davis, Administrative Law Treatise, 1970 Supp., § 2.00, at 40 et seq. (St. Paul: West Publishing Co., 1971).Google Scholar

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.Google Scholar

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:Google Scholar

(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 standards; (d) the non-delegation doctrine should gradually grow into a broad requirement extending 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 enforcement.Google Scholar

Davis, supra note 181, § 2.00-5, at 52.Google Scholar

184 Id.§ 2.00-5, at 57.Google Scholar

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.Google Scholar

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.”Google Scholar

187 Davis, supra note 181, § 2.00-6, at 58.Google Scholar

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. Google Scholar

189 See notes 277-89 infra and text at same.Google Scholar

190 42 Fed. Reg. 37,149 (1977) (to be codified in 33 C.F.R. § 325).Google Scholar

191 42 Fed. Reg. 37,150 (1977) (to be codified in 33 C.F.R. § 325.2(a)(2)).Google Scholar

192 42 Fed. Reg. 37,152 (1977) (to be codified in 33 C.F.R. § 325.3(b)).Google Scholar

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 “[r]equests 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 communicate his reasons therefor to all requesting parties.”Id. at 37,160 (to be codified in 33 C.F.R. § 327.4(b)). See Cooper v. Wisdom, 4.40 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.Google Scholar

194 Id. (to be codified in 33 C.F.R. § 325.2(a)(6)).Google Scholar

195 42 Fed. Reg. 37,137 (to be codified in 33 C.F.R. § 320.4(d)).Google Scholar

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).Google Scholar

197 42 Fed. Reg. 37,152 (1977) (to be codified in 33 C.F.R. § 325.3(c)).Google Scholar

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).Google Scholar

199 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. § 320.4(a)(1)).Google Scholar

200 Id. (to be codified in 33 C.F.R. § 320.4(b)(2)).Google Scholar

201 Id. (to be codified in 33 C.F.R. § 320.4(a)(1)).Google Scholar

202 42 Fed. Reg. 37,137 (1977) (to be codified in 33 C.F.R. § 320.4(b)(4)).Google Scholar

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).Google Scholar

204 42 Fed. Reg. 37,138 (1977) (to be codified in 33 C.F.R. § 320.4(h)).Google Scholar

205 Id. (to be codified in 33 C.F.R. § 320.4(j)(2)).Google Scholar

206 42 Fed. Reg. 37,136 (1977) (to be codified in 33 C.F.R. § 320.4(a)(2)).Google Scholar

207 42 Fed. Reg. 37,137 (1977) (to be codified in 33 C.F.R. § 320.4(b)(4)).Google Scholar

208 42 Fed. Reg. 37,145 (1977) (to be codified in 33 C.F.R. § 323.3(c)).CrossRefGoogle Scholar

209 Water Act § 404(e), 33 U.S.C.A. § 1344(e).Google Scholar

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).Google Scholar

211 Water Act § 404(e), 33 U.S.C.A. § 1344(e).Google Scholar

212 42 Fed. Reg. 37,146 (1977) (to be codified in 33 C.F.R. § 323.4-3).Google Scholar

213 Water Act § 404(f), 33 U.S.C.A. § 1344(f).Google Scholar

214 Corwin, Edwin S., ed., The Constitution of the United States of America: Analysis and Interpretation 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)).Google Scholar

215 “Its exact boundaries are undefinable, and its content varies according to specific factual contexts…. [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).Google Scholar

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)).Google Scholar

217 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).Google Scholar

218 See generally, for discussion of “adjudicative 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.”Google Scholar

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 decisions.”Id. at 1340.Google Scholar

220 Id. at 160.Google Scholar

221 Water Act § 309, 33 U.S.C.A. § 1319; RHA § 12, 33 U.S.C. § 406 (1970).Google Scholar

222 42 Fed. Reg. 37,159 (1977) (to be codified in 33 C.F.R. § 326.2).Google Scholar

223 33 U.S.C. § 406 (1970) (emphasis added).Google Scholar

224 Id.§ 403 (emphasis added).Google Scholar

225 362 U.S. 482 (1960).Google Scholar

226 Id. at 492.Google Scholar

227 Id. at 510.Google Scholar

228 See notes 234-35, 260-61, 264, 266, 268 infra for Moretti cases.Google Scholar

229 Facts described in United States v. Joseph G. Moretti, Inc., 331 F. Supp. 151, 156 (S.D. Fla. 1971).Google Scholar

230 Id. at 157.Google Scholar

231 Id. Google Scholar

232 Id. at 157, 158.Google Scholar

233 Id. at 158.Google Scholar

234 Untied States v. Joseph G. Moretti, Inc., 478 F.2d 418, 421 (5th Cir. 1973).Google Scholar

235 United States v. Moretti, 387 F. Supp. 1404, 1407 (S.D. Fla. 1974).Google Scholar

236 Id. Google Scholar

237 N.Y. Times, Jan. 6, 1975, at 26, col. 1.Google Scholar

238 Herald, Miami, Feb. 2, 1975, at 5, col. 3.Google Scholar

239 7 E.R.C. 1523 (S.D. Fla. 1975), rev'd in part, 526 F.2d 1302 (5th Cir. 1976).Google Scholar

240 Id. at 1526.Google Scholar

241 7 E.R.C. 1937 (E.D. Va. 1975).Google Scholar

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. Google Scholar

243 7 E.R.C. 1527 (S.D. Fla. 1974).Google Scholar

244 389 F. Supp. 602 (S.D. Fla. 1975), rev'd in part and remanded, 526 F.2d 1293 (5th Cir. 1976).Google Scholar

245 Id. at 612 (quoting Atlantic Richfield Co. v. Hickel, 432 F.2d 587, 591-92 (10th Cir. 1970)).Google Scholar

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).Google Scholar

247 398 F. Supp. 653 (E.D.N.C. 1975), aff'd per curiam, 528 F.2d 250 (4th Cir. 1975).Google Scholar

248 Id. at 674.Google Scholar

249 Id. See also notes 241-42 supra and text at same.Google Scholar

250 398 F. Supp. at 668.Google Scholar

251 Id. Google Scholar

252 Id. Google Scholar

253 Id. at 674.Google Scholar

254 Id. Google Scholar

255 [1975] 5 Envir. L. Rep. (ELI) 20,705 (S.D. Miss. 1975).Google Scholar

256 Id. at20,706.Google Scholar

257 Id. Google Scholar

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).Google Scholar

259 514 F.2d at 1090.Google Scholar

260 526 F.2d 1306 (5th Cir. 1976).Google Scholar

261 526 F.2d 1311 (5th Cir. 1976).Google Scholar

262 526 F.2d 1293 (5th Cir. 1976).Google Scholar

263 526 F.2d 1302 (5th Cir. 1976).Google Scholar

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.Google Scholar

265 526 F.2d at 1310.Google Scholar

266 423 F. Supp. 1197 (S.D. Fla. 1976).Google Scholar

267 Id. at 1201, 1202. See note 269 infra and text at same.Google Scholar

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 Planning Rules, [1977] 7 Envir. Rep.-Cur. Dev. (BNA) 1546-47.Google Scholar

269 Summarized in United States v. Joseph G. Moretti, Inc., 423 F. Supp. 1197, 1201 (S.D. Fla. 1976).Google Scholar

270 United States v. Joseph G. Moretti, Inc., 478 F.2d 418, 421 (5th Cir. 1973).Google Scholar

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 (1975).Google Scholar

272 See note 238 supra and text at same.Google Scholar

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. Google Scholar

274 260 U.S. 393, 415 (1922).Google Scholar

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, [1976] 6 Envir. Rep.-Cur. Dev. (BNA) 2141-43. See also Deltona Corp. v. Hoffman, 9 E.R.C. 1942 (M.D. Fla. 1977) (allowing intervention of several environmental groups).Google Scholar

276 See, e.g., Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 (1972); 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); 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 Ackerman, Bruce A., 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 approximately equal numbers.”Google Scholar

277 See note 285 infra. Google Scholar

278 See notes 96-149 supra and text at same.Google Scholar

279 See Morreale, Eva H., Federal Power in Western Waters: The Navigation Power and the Rule of No Compensation, 3 Nat. Resources J. 1, 19 (1963).Google Scholar

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).Google Scholar

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 Development, 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 Navigation 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, Navigational 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).Google Scholar

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 U.S. 53 (1913).Google Scholar

283 See, e.g., Powell supra note 281, criticized by Morreale, supra note 279, at 23.Google Scholar

284 United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 62 (1913).Google Scholar

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.Google Scholar

286 See id. at 25.Google Scholar

287 See id. at 28.Google Scholar

288 See id. at 23.Google Scholar

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).Google Scholar

290 430 F.2d 199 (5th Cir. 1970), cert denied, 401 U.S. 910 (1971)Google Scholar

291 Bosselman et al., supra note 273.Google Scholar

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).Google Scholar

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).Google Scholar

294 Me. Rev. Stat. Ann. tit. 38, §§ 481-483 (West Supp. 1977-78). In re Spring Valley Dev., 300 A.2d 736 (Me. 1973)Google Scholar

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).Google Scholar

296 Bosselman, et al., supra note 273, at 229.Google Scholar

297 Id. Google Scholar

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.”Google Scholar

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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. Schvene'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 destructive 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.Google Scholar

299 Bosselman, et al., supra note 273, at 264.Google Scholar

300 336 A.2d 239 (N. H. 1975).Google Scholar

301 123 U.S. 623 (1887).Google Scholar

302 69 N. H. I, 39 A. 260 (1896).Google Scholar

303 336 A.2d at 243 (quoting Just v. Marinette County, 56 Wis. 2d 7, 17, 201 N.W.2d 761, 768 (1972)).Google Scholar

304 369 U.S. 590, 592 (1962).Google Scholar

305 Gunther, Gerald, Cases and Materials on Constitutional Law 603 (9th ed. Mineola, N.Y.: Foundation Press, 1975).Google Scholar

306 One of the authors says, “This has been my position.” Interview with John Banta, Esq., Conservation Foundation, in Washington, D.C. (Apr. 1, 1977).Google Scholar

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)).Google Scholar

308 Gunther, supra note 305, at 548-50.Google Scholar

309 198 U.S. 45 (1905).Google Scholar

310 Gunther, supra note 305, at 564.Google Scholar

311 291 U.S. 502 (1934).Google Scholar

312 Id. at 525.Google Scholar

313 Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (quoting Lawton v. Steele, 152 U.S. 133, 137 (1894)).Google Scholar

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).Google Scholar

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)).Google Scholar

316 This idea was also expressed by John Banta, interview, supra note 306.Google Scholar

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).Google Scholar

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]tatewide 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”).Google Scholar

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 provide for prior land-use planning.” Letter from Maj. Gen. J. W. Morris, supra note 119.Google Scholar

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 program.Google Scholar

321 Cal. Pub. Res. Code §§ 30000-30900 (West 1977 & Cum. Supp. 1978).Google Scholar

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).Google Scholar

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 interest.Google Scholar

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.Google Scholar

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.Google Scholar

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).Google Scholar

327 American Can Co. v. Oregon Liquor Control Comm'n, 15 Ore. App. 618, 517 P.2d 691, 696 (Ore. Ct. App. 1973).Google Scholar

328 Benson, Paul R., 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).Google Scholar

329 22 U.S. (9 Wheat.) 1 (1824).Google Scholar

330 Id. at 193-94.Google Scholar

331 Id. at 195, 196.Google Scholar

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 commerce 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.Google Scholar

333 311 U.S. 377 (1940). The scope of the commerce power was considered in relation to conditions 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.Google Scholar

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 interstate 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 Congress to regulate interstate commerce.”Id. at 118-19.Google Scholar

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 contribution, 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).Google Scholar

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 essentially 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.Google Scholar

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. 111 (1942)).Google Scholar

338 430 F.2d 199 (5th Cir. 1970), cert denied, 401 U.S. 910 (1971). See notes 164-80 supra and text at same.Google Scholar

339 Id. at 203.Google Scholar

340 Id. at 203-4.Google Scholar

341 373 F. Supp. 665 (M.D. Fla. 1974). See notes 96-107 supra and text at same.Google Scholar

342 Id. at 676.Google Scholar

343 United States v. Ashland Oil & Transp. Co., 504 F.2d 1317 (6th Cir. 1974). See notes 107-10 supra and text at same.Google Scholar

344 Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508 (1941). See notes 40-44 supra and text at same.Google Scholar

345 504 F.2d at 1327.Google Scholar

346 403 F. Supp. 1292 (N.D. Cal. 1974).Google Scholar

347 33 C.F.R. § 209.260(k)(1)(ii) (1972).Google Scholar

348 Leslie Salt Co. v. Froehlke, 403 F. Supp. 1292, 1296 (N.D. Cal. 1974).Google Scholar

349 Id. at 1296-97.Google Scholar

350 393 F. Supp. 1370 (D.D.C. 1975).Google Scholar

351 373 F. Supp. 665 (M.D. Fla. 1974).Google Scholar

352 392 F. Supp. 685 (D.D.C. 1975).Google Scholar

353 393 F. Supp. at 1381.Google Scholar

354 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971).Google Scholar

355 393 F. Supp. at 1381.Google Scholar

356 See also for a discussion of federal “police power” under the commerce clause: Champion v.Google Scholar

Ames, 188 U.S. 321 (1903) (lottery tickets); United States v. Sullivan, 332 U.S. 689 (1948) (misbranded drugs); Hoke v. United States, 227 U.S. 308 (1913) (prostitution); Gooch v. United States 297 U.S. 124 (1936) (kidnapping).Google Scholar

357 United States v. Darby, 312 U.S. 100, 114 (1941).Google Scholar

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.Google Scholar

359 Id. at 152 (emphasis added).Google Scholar

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).Google Scholar

361 379 U.S. 241 (1964).Google Scholar

362 Id. at 255.Google Scholar

363 Id. at 258.Google Scholar

364 See, e.g., notes 338-54 supra and text at same.Google Scholar

365 Cal. Pub. Res. Code §§ 30000-30900. (West 1977 & Cum. Supp. 1978).Google Scholar

366 See note 336 supra. Google Scholar

367 See notes 359-60 supra and text at same.Google Scholar

368 California Coastal Zone Conservation Commissions, California Coastal Plan 55 (Sacramento, 1975).Google Scholar

369 Id. Google Scholar

370 Food Task Force, University of California, A Hungry World: The Challenge to Agriculture: Summary Report 1 (1974).Google Scholar

371 California Coastal Commissions, supra note 368, at 55.Google Scholar

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.Google Scholar

373 379 U.S. 294 (1964).Google Scholar

374 Id. at 302 (quoting Gibbons v. Ogden, 9 Wheat. 1, 195 (1824)).Google Scholar

375 See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 147 (1938).Google Scholar

376 See, e.g., United States v. Darby, 312 U.S. 100, 115 (1941).Google Scholar

377 See Wickard v. Filburn, 317 U.S. 111, 127-28 (1942); Perez v. United States, 402 U.S. 146, 157 (1971).Google Scholar

378 317 U.S. 111 (1942).Google Scholar

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).Google Scholar

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).Google Scholar

381 402 U.S. at 154.Google Scholar

382 53 U.S. (12 How.) 299, 319 (1851).CrossRefGoogle Scholar

383 Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 768-69 (1945).Google Scholar

384 317 U.S. 341 (1943). See generally Note, Parker v. Brown: A Preemption Analysis, 84 Yale L.J. 1164 (1975).Google Scholar

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.Google Scholar

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.Google Scholar

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 Council'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.Google Scholar

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 consideration 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 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:Google Scholar

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.Google Scholar

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.Google Scholar

388 98 S. Ct. 2531 (1978).Google Scholar

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 continue to be applied, concluded that “it seems clear that the [weighing test] has not yet been entirely abandoned.”Id., 348 A.2d at 517.Google Scholar

390 Id., 348 A.2d at 518.Google Scholar

391 City of Philadelphia v. New Jersey, 98 S. Ct. 2531, 2538 (1978).Google Scholar

392 Id. at 2537.Google Scholar

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).Google Scholar

394 Cf., e.g., Soper, supra note 317, at 99; Note, supra note 393, at 651-54.Google Scholar

395 Hines v. Davidowitz, 312 U.S. 52, 67 (1941).Google Scholar

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 subject 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 dissent 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 subsequent events: (1) that in the fall of 1963, when the California agency tried to relax the oil control standard, 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).Google Scholar

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 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.Google Scholar

398 See notes 388-92 supra and text at same.Google Scholar

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 continue 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)).Google Scholar

400 98 S. Ct. 2531 (1978).Google Scholar

401 Hart, Henry M., Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 534 (1954).Google Scholar

402 Id. at 540.Google Scholar

403 Wechsler, Herbert, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).Google Scholar

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, construed 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.Google Scholar

405 See, e.g., National Committee Against Discrimination in Housing, Fair Housing and Exclusionary Land Use, ULI Research Report No. 23 (Washington, D.C.: Urban Land Institute, 1974).Google Scholar

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).Google Scholar

407 16 U.S.C. §§ 1451-1464.Google Scholar

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).Google Scholar

409 Id. at 112 (quoting Louis Hartz, The Whig Tradition in America and Europe, 46 Am. Political Sci. Rev. 989, 997 n.10 (1952)).CrossRefGoogle Scholar

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 Commodity “Affected with a Public Interest,” 52 Wash. L. Rev. 289 (1977).Google Scholar

411 Freund, supra note 408, at 114-15.Google Scholar

412 Gunther, supra note 305, at 243.Google Scholar

413 16 U.S.C. §§ 1451-1464.Google Scholar

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 Communities, 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.Google Scholar

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 (1976).Google Scholar

416 33 U.S.C.A. §§ 1251-1376.Google Scholar

417 42 U.S.C.A. §§ 7401-7642.Google Scholar

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).Google Scholar

419 16 U.S.C. §§ 1451-1464. See generally, for a history of coastal zone management, the citations 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).Google Scholar

420 FCZMA § 302(a), 16 U.S.C. § 1451(a).Google Scholar

421 Id.§ 302(h), 16 U.S.C. § 1451(h).Google Scholar

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 continental shelf (OSC) licenses and permits); § 307(d), 16 U.S.C. § 1456(d) (federal assistance). See notes 449-87 infra and text at same.Google Scholar

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 chaper 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(f). “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).Google Scholar

424 § 306(e)(1)(A)-(C), 16 U.S.C. § 1455(e)(1)(A)-(C).Google Scholar

425 Cal. Pub. Res. Code §§ 30000-30900 (West 1977 & Cum. Supp. 1978).Google Scholar

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).Google Scholar

427 See Matuszeski, William, 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.Google Scholar

428 FCZMA § 305(b)(2), 16 U.S.C. § 1454(b)(2); § 306(a)(1), 16 U.S.C. § 1455(a)(1).Google Scholar

429 43 Fed. Reg. 8,398 (1978) (to be codified in 15 C.F.R. § 923.11(a)(1)).Google Scholar

430 Id. (to be codified in 15 C.F.R. § 923.12(c)).Google Scholar

431 FCZMA § 306(c)(8), 16 U.S.C. § 1455(c)(8).Google Scholar

432 43 Fed. Reg. 8,414 (1978) (to be codified in 15 C.F.R. § 923.52(a)).Google Scholar

433 Id. (to be codified in 15 C.F.R. § 923.52(f)).Google Scholar

434 FCZMA § 306(e)(2), 16 U.S.C. § 1455(e)(2).Google Scholar

435 43 Fed. Reg. 8,399 (1978) (to be codified in 15 C.F.R. § 923.13(d)).Google Scholar

436 43 Fed. Reg. 8,378, 8,383-84 (1978).Google Scholar

437 272 U.S. 365, 390 (1926).Google Scholar

438 43 Fed. Reg. 8,404 (1978) (to be codified in 15 C.F.R. § 923.31(a)(1)-(6)).Google Scholar

439 Id. 8,405 (to be codified in 15 C.F.R. § 923.31(g)).Google Scholar

440 Id. 8,401 (to be codified in 15 C.F.R. § 923.21(d)(1)).Google Scholar

441 272 U.S. at 388.Google Scholar

442 43 Fed. Reg. 8,401 (1978) (to be codified in 15 C.F.R. § 923.22(a)).Google Scholar

443 Id. (to be codified in 15 C.F.R. § 923.22(e)).Google Scholar

444 Id. 8,399 (to be codified in 15 C.F.R. § 923.14).Google Scholar

445 See generally, for citations to the extensive literature on “home rule,” Sho Sato, “Municipal Affairs” in California, 60 Calif. L. Rev. 1055 n.1 (1972). “Home rule” is often argued in legislative debates, not only as a statutory or constitutional right but also as a philosophical preference.CrossRefGoogle Scholar

446 43 Fed. Reg. 8,412 (1978) (to be codified in 15 C.F.R. § 923.50(a)).Google Scholar

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).Google Scholar

448 FCZMA § 306(d)(2), 16 U.S.C. § 1455(d)(2).Google Scholar

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 responsibilities”); 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”).Google Scholar

450 Id. at 10,520 (to be codified in 15 C.F.R. § 930.34).Google Scholar

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.”)Google Scholar

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).Google Scholar

453 See id. at 10,523-26 (to be codified in 15 C.F.R. §§ 930.50-.66) for provisions concerning consistency for activities requiring a federal license or permit.Google Scholar

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 application to the Federal licensing or permitting agency a certification that the proposed activity complies 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).Google Scholar

455 Id. at 10,524, 10,530-31 (to be codified in 15 C.F.R. §§ 930.53(e), 930.55, 930.110-.116).Google Scholar

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”).Google Scholar

457 Id. at 10,531 (to be codified in 15 C.F.R. § 930.120).Google Scholar

458 Id. at 10,532 (to be codified in 15 C.F.R. §§ 930.131(a), 930.132).Google Scholar

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)).Google Scholar

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).Google Scholar

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).Google Scholar

462 Id. 10,527, 10,528 (to be codified in 15 C.F.R. §§ 930.76, 930.83).Google Scholar

463 Id. at 10,529 (to be codified in 15 C.F.R. § 930.90).Google Scholar

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).Google Scholar

465 See 41 Fed. Reg. 2,052 (1976).Google Scholar

466 43 Fed. Reg. 10,529-30, 10,532 (to be codified in 15 C.F.R. §§ 930.93, 930.95-96, 930.131).Google Scholar

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 Institute (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 litigation 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 Management Act-a Legal and Policy Analysis, 4 Ohio North L. Rev. 595 (1977).Google Scholar

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).Google Scholar

469 Knecht, supra note 460, at 2, 3.Google Scholar

470 43 Fed. Reg. 10,526-27 (1978) (to be codified in 15 C.F.R. § 930.70).Google Scholar

471 FCZMA § 307(c)(3)(B), 16 U.S.C. § 1456(c)(3)(B).Google Scholar

472 43 Fed. Reg. 10,528 (to be codified in 15 C.F.R. § 930.83).Google Scholar

473 Id. at 10,531-32 (to be codified in 15 C.F.R. §§ 930.121, 930.122, 930.130-.132).Google Scholar

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”).Google Scholar

475 See generally notes 382-402 supra and text at same.Google Scholar

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).Google Scholar

477 Wash. Rev. Code Ann. §§ 88.16.170-.190 (Supp. 1976).Google Scholar

478 33 U.S.C. §§ 1221-27 (Supp. V 1975).Google Scholar

479 Id., quoted in Atlantic Richfield Co. v. Evans, 9 E.R.C. at 1877.Google Scholar

480 98 S. Ct. 988 (1978).Google Scholar

481 Id. at 992.Google Scholar

482 Id. at 995 n.7.Google Scholar

483 Id. at 1001.Google Scholar

484 Atlantic Richfield Co. v. Evans, 9 E.R.C. at 1879.Google Scholar

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.Google Scholar

486 See Atlantic Richfield Co. v. Evans, 9 E.R.C. at 1879.Google Scholar

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 program 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.Google Scholar

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).Google Scholar

489 33 U.S.C. §§ 1251-1376. See note 15 et seq. supra and text at same.Google Scholar

490 42 U.S.C.A. §§ 7401-7642.Google Scholar

491 ALI Model Land Development Code (1976).Google Scholar

492 Florida Environmental Land and Water Management Act of 1972, Ha. Stat. Ann. ch. 380 (West 1974 & Cum. Supp. 1978).Google Scholar

493 Cal. Pub. Res. Code §§ 30000-30900 (West 1977 & Cum. Supp. 1978).Google Scholar

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).Google Scholar

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.Google Scholar

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).Google Scholar

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).Google Scholar

498 See 40 C.F.R. § 52.22(b)(i) (1977).CrossRefGoogle Scholar

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.Google Scholar

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 operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture”).Google Scholar

501 Id.§ 208(b)(2)(F), (H), 33 U.S.C.A. § 1288(b)(2)(F), (H).Google Scholar

502 Compare definition of “point source,”supra note 500, with definition of “nonpoint source.”Google Scholar

503 Clean Air Act § 101(b)(1), 42 U.S.C.A. § 7401(b)(1).Google Scholar

504 Water Act § 101(a), 33 U.S.C.A. § 1251(a).Google Scholar

505 Clean Air Act § 110(a)(1), 42 U.S.C.A. § 7410(a)(1) (state implementation plans for national primary and secondary ambient air quality standards).Google Scholar

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)(1), 42 U.S.C.A. § 7409(b)(1).Google Scholar

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. § 7409(b)(2).Google Scholar

508 See id.§ 160, 42 U.S.C.A. § 7470.Google Scholar

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… exceed[s] 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.Google Scholar

510 See id.§§ 160-169A, 42 U.S.C.A. §§ 7470-7491.Google Scholar

511 Pub. L. No. 95-95, § 129(a) (codified at 42 U.S.C.A. § 7502).Google Scholar

512 See notes 513-26 supra and text at same.Google Scholar

513 See 344 F. Supp. 253 (D.D.C.) aff'd mem., 4 E.R.C. 1815 (D.C. Cir. 1972), aff'd per curiam by an equally divided Court sub nom. Fri v. Sierra Club, 412 U.S. 541 (1973).Google Scholar

514 Clean Air Act § 101(b)(1), 42 U.S.C.A. § 7401(b)(1) (emphasis added).Google Scholar

515 Id.§ 161, 42 U.S.C.A. § 7471.Google Scholar

516 Id.§ 160(3), 42 U.S.C.A. § 7470(3).Google Scholar

517 Id.§§ 162-164, 42 U.S.C.A. §§ 7472-7474.Google Scholar

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).Google Scholar

519 Clean Air Act § 165, 42 U.S.C.A. § 7475.Google Scholar

520 Cal. Pub. Res. Code § 30250 (West 1977).Google Scholar

521 Id.§ 30253(3) (West 1977).Google Scholar

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.Google Scholar

523 Pub. L. No. 95-95, § 129(a)(1), 42 U.S.C.A. § 7502.Google Scholar

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).Google Scholar

525 See 41 Fed. Reg. 55,524 (1976).CrossRefGoogle Scholar

526 EPA Policy on Growth in Dirty Areas Rapped by State, Local, Industry Groups, [1977] 7 Envir. Rep.-Cur. Dev. (BNA) 1683.Google Scholar

527 Union Elec. Co. v. EPA, 427 U.S. 246 (1976). See Bleicher, Samuel A., 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).Google Scholar

528 427 U.S. at 257 (quoting Train v. NRDC, 421 U.S. at 91 (1975)).Google Scholar

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).Google Scholar

530 Comment, 95th Congress: Midterm Progress on Environmental Issues Reflects Conflicting Priorities, 8 Envir. L. Rep. 10,004, 10,006 (1978).Google Scholar

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 [1977] U.S. Code Cong. & Ad. News 1502, 1508.Google Scholar

532 Cal. Pub. Res. Code § 30001(b) (West 1977).Google Scholar

533 Id.§ 30001.5(b).Google Scholar

534 Id.§ 30001.2.Google Scholar

535 Id.§ 30260.Google Scholar

536 See, e.g., notes 94-149 supra and text at same.Google Scholar

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). Compare 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 Pursuit of Clean Air and Clean Water, 62 Iowa L. Rev. 643 (1977).Google Scholar

538 Water Act § 301(a), 33 U.S.C.A. § 1311(a).Google Scholar

539 Id.§ 402, 33 U.S.C.A. § 1342. See generally 1 Grad, supra note 495, § 3.03[6], at 3-139.Google Scholar

540 Water Act § 402(a)(1), 33 U.S.C.A. § 1342(a)(1).Google Scholar

541 Id.§ 402(b), 33 U.S.C.A. § 1342(b).Google Scholar

542 Id.§ 402(c)(I), (3), 33 U.S.C.A. § 1342(c)(1), (3).Google Scholar

543 Id.§ 402(d)(1), (2), 33 U.S.C.A. § 1342(d)(1), (2).Google Scholar

544 Id.§ 502(14), 33 U.S.C.A. § 1362(14) (definition of “point source”).Google Scholar

545 Id.§ I288(b)(2)(F)-(K). Note the provision in § 208(b)(2)(F)-(K) that allows land use requirements to control pollution from these sources.Google Scholar

546 See generally Michael Jungman, Areawide Planning Under the Federal Water Pollution Control Act Amendments of 1972: Intergovernmental and Land Use Implications, 54 Tex. L. Rev. 1047, 1048 (1976).Google Scholar

547 See Water Act § 101(a)(1), (2), 33 U.S.C.A. § 1251(a)(I), (2).Google Scholar

548 The House Committee on Public Works has called § 208 “the most important aspect of a water pollution control strategy.” 1 Senate Comm. on Public Works, 93d Cong., 1st Sess., A Legislative History of the Water Pollution Control Act Amendments of 1972, at 782 (Comm. Print 1973). See Jungrnan, supra note 546, at 1078-80: “Section 208, although highly promising within the narrow context of water pollution control, illustrates Congress' illogical, piecemeal approach to the broader issue of national land use legislation. For six consecutive years, Congress has considered but refused to pass a land use planning assistance act that would provide grants to encourage states to develop comprehensive land use planning and management programs. …A realistic appraisal of the situation, however, shows that substantial federal intervention into land use planning and control has already occurred. During the same period in which Congress has consistently rejected comprehensive land use planning assistance legislation, it enacted § 208 [of the Water Act], the Clean Air Act of 1970, the Coastal Zone Management Act of 1972, and a host of other statutes having major implications for state and local land use regulatory practices.”Google Scholar

549 Water Act § 208(a)(2), (5), (6), 33 U.S.C.A. § 1288(a)(2), (5), (6).Google Scholar

550 Id.§ 208(b)(1), (2), 33 U.S.C.A. § 1288(b)(1), (2).Google Scholar

551 The grants of 100 percent are available only to programs that received the first grant before Oct. 1977; thereafter, any agency may receive up to 75 percent of such costs.Google Scholar

552 § 208(d), (e), (f)(2), 33 U.S.C.A. § 1288(d), (e), (f)(2).Google Scholar

553 Pub. L. No. 95-95 (codified at various sections of 42 U.S.C.A. §§ 7401-7642).Google Scholar

554 See id.§ 7410(a)(2) for revised section.Google Scholar

555 Id.§ 7410(a)(5)(A)(i).Google Scholar

556 Id.§§ 160-169A, 42 U.S.C.A. §§ 7470-7491.Google Scholar

557 Id.§ 160(2), (3), 42 U.S.C.A. § 7470(2), (3).Google Scholar

558 426 U.S. 833 (1976).Google Scholar

559 See generally J. Ralph Beaird & C. Ronald Ellington, A Commerce Power Seesaw: Balancing National League of Cities, 11 Ga. L. Rev. 35 (1976); Frank I. Michelman, States' Rights and States' Roles: Permutations of “Sovereignty” in National League of Cities v. Usery, 86 Yale L.J. 1165 (1977); Laurence H. Tribe, Unraveling National League of Cities: The New Federalism and Affirmative Rights to Essential Government Services, 90 Harv. L. Rev. 1065 (1977); Comment, At Federalism's Crossroads: National League of Cities v. Usery, 57 B.U.L. Rev. 178 (1977); Recent Cases, 81 Dick. L. Rev. 363 (1977).Google Scholar

560 426 U.S. at 875 (quoting Bethlehem Steel Co. v. New York State Board, 330 U.S. 767, 780 (1947)).Google Scholar

561 Since the 1941 holding in United States v. Darby, 312 U.S. 100 (1941), the Supreme Court has increasingly treated the Tenth Amendment as merely providing that “all is retained which has not been surrendered.” See notes 328-81 supra and text at same. National League signifies a substantial departure from this trend: Justice Rehnquist's opinion may signify, rather, a return to the era of dual federalism. See Brennan, William J., Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 495-98 (1977); Henry J. Friendly, Federalism: A Foreword, 86 Yale L.J. 1019 (1977); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196 (1977); Comment, Constitutional Law-Commerce Power Limited to Preserve States' Role in the Federal System, 30 Rutgers L. Rev. 152 (1976).Google Scholar

562 United States v. Darby, 312 U.S. 100 (1941).Google Scholar

563 426 U.S. at 838.Google Scholar

564 Id. at 852 (quoting Fry v. United States, 421 U.S. 542, 547 (1975)).Google Scholar

565 Id. at 852.Google Scholar

566 Id. at 845.Google Scholar

567 Id. at 843 (quoting Fry v. United States, 421 U.S. 542, 547 (1975)).Google Scholar

568 Id. at 880. A major criticism against National League is its failure to provide a principled method for resolution of conflicts between state sovereignty and a nationally oriented federalism. See, e.g., notes 559, 561 supra and text at same.Google Scholar

569 426 U.S. at 856, 876. See generally Comment, Federalism and the Commerce Clause: National League of Cities v. Usery, 62 Iowa L. Rev. 1189 (1977).Google Scholar

570 See, e.g., Comment, supra note 561, at 165-68 (1976).Google Scholar

571 326 U.S. 572 (1946).Google Scholar

572 Id. at 588, 589.Google Scholar

573 Id. at 589-90 (quoting Metcalf v. Mitchell, 269 U.S. 514, 523-24 (1926)).Google Scholar

574 392 U.S. 183 (1968).Google Scholar

575 421 U.S. 542 (1975).Google Scholar

576 426 U.S. at 855.Google Scholar

577 297 U.S. 175 (1936).Google Scholar

578 Id. at 185.Google Scholar

579 426 U.S. at 855 (quoting Maryland v. Wirtz, 392 U.S. 183, 205 (1968)) (Douglas, J., dissenting).Google Scholar

580 Title II of the Act of Aug. 15, 1970, Pub. L. No. 91-379, 84 Stat. 799, as amended, note following 12 U.S.C. § 1904 (1976). The act was extended five times before it expired on April 30, 1974.Google Scholar

581 426 U.S. at 853.Google Scholar

582 Id. at 845 (quoting Coyle v. Oklahoma, 221 U.S. 559, 580 (1911)).Google Scholar

583 Id. at 845.Google Scholar

584 Id. at 851.Google Scholar

585 Id. at 846. This step might be called the extent-of-interference test, wherein the Court will look to the degree of displacement of state functions. The step can be faulted because it curtails congressional power in areas where the power is arguably most needed, i.e., in regulating activities in those states with the most significant deviation from national norms. See generally Comment, supra note 561.Google Scholar

586 426 U.S. at 847.Google Scholar

587 Id. at 853. The allowance of a greater degree of interference where there is a demonstrable national emergency or an urgent problem threatening the well-being of the nation as a whole could provide the foundation for distinguishing of programs. See also Comment, 60 Marq. L. Rev. 185 (1976).Google Scholar

588 See generally Beaird & Ellington, supra note 559.Google Scholar

589 426 U.S. at 881 (Stevens, J., dissenting).Google Scholar

590 Id. at 858 (quoting Wickard v. Filburn, 317 U.S. Ill, 120 (1942)).Google Scholar

591 See, e.g., notes 412-552 supra and text at same. See also Sierra Club v. EPA, 540 F.2d 1114 (D.C. Cir. 1976), cert, denied. 430 U.S. 959 (1977).Google Scholar

592 426 U.S. at 856. See generally Billups P. Percy, National League of Cities v. Usery: The Tenth Amendment Is Alive and Doing Well, 51 Tul. L. Rev. 95 (1976).Google Scholar

593 431 U.S. 99 (1977).Google Scholar

594 Brown v. EPA [Brown I], 521 F.2d 827 (9th Cir. 1975); Arizona v. EPA, 521 F.2d 825 (9th Cir. 1975); District of Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975); Maryland v. EPA, 530 F.2d 215 (4th Cir 1975). These cases were vacated and remanded, 431 U.S. 99 (1977). See, on reconsideration, Brown v. EPA [Brown II], 566 F.2d 665 (9th Cir. 1977).Google Scholar

595 EPA v. Brown, 431 U.S. at 101.Google Scholar

596 431 U.S. 99.Google Scholar

597 Id. at 104. See Brown II, 566 F.2d 665 (9th Cir. 1977).Google Scholar

598 Gunther, supra note 305, at 243.Google Scholar

599 Id. at 255.Google Scholar

600 See, e.g., notes 609-12 infra and text at same; Hans Linde, Justice Douglas on Freedom in the Welfare State: Constitutional Rights in the Public Sector, 39 Wash. L. Rev. 4, 28-31 (1964); Council of State Governments, State Government Organization and Federal Grant-in-Aid Program Requirements (1962) (deploring “the tendency of federal agencies to dictate the organizational form and structure through which the states carry out federally supported programs”; Gunther, supra note 305, at 257, cites Linde's reference to the 1961 Governors' Conference report).Google Scholar

601 16 U.S.C. §§ 1451-1464.Google Scholar

602 297 U.S. 1, 65-66 (1936). Justice Roberts's opinion discusses the Madison-Hamilton debate concerning the meaning of the ‘general welfare’ provision of the spending power, and notes that “Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position.”Id. at 66. The Court concludes that “the reading advocated by Mr. Justice Story is the correct one.”Id. But cf. Gunther, supra note 305, at 250, asking whether the Butler majority may have adopted the Madison position after all: “If this power to spend for the “general welfare” is not limited by the other grants of power in Art. I, § 8, why was it unconstitutional to spend for the purpose of reducing agricultural production, even though that production could not then be regulated directly under the other powers?”Google Scholar

603 Helvering v. Davis, 301 U.S. 619 (1937). See generally Gunther, supra note 305, at 254.Google Scholar

604 United States v. Gerlach Live Stock Co., 339 U.S. 725, 738 (1950).Google Scholar

605 See notes 365-81 supra and text at same.Google Scholar

606 426 U.S. 833, 852 n.17 (1976). See generally notes 558-97 supra and text at same.Google Scholar

607 Steward Mach. Co. v. Davis, 301 U.S. 548, 585 (1937).Google Scholar

608 330 U.S. 127 (1947).Google Scholar

609 Address by Kingman Brewster, Jr., President, Yale University, Annual Dinner of the Fellows of the American Bar Foundation, Chicago, 111. (Feb. 22, 1975).Google Scholar

610 Introduction to President Derek C. Bole's 1974-75 Annual Report to the Harvard University Board of Overseers, 18 Harv. Today 1 (1976).Google Scholar

611 Brewster, supra note 609.Google Scholar

612 Bok, supra note 610, at 10.Google Scholar

613 Remarks of Robert Knecht, Office of Coastal Zone Management, National Oceanic and Atmospheric Administration, to members of Gov. Askew's staff, in Tallahassee, Fla. (Apr. 7, 1977).Google Scholar

614 FCZMA § 308(a)(1) et seq., 16 U.S.C. § 1456a et seq. Google Scholar

615 426 U.S. 833 (1976). See generally notes 558-97 supra and text at same.Google Scholar

616 326 U.S. 572 (1946). See notes 571-73 supra and text at same.Google Scholar

617 326 U.S. at 589.Google Scholar

618 Steward Mach. Co. v. Davis, 301 U.S. 548, 585 (1937).Google Scholar

619 326 U.S. 572 (1946).Google Scholar

620 330 U.S. 127 (1947).Google Scholar

621 See, e.g., bibliography collected in John Clark, Coastal Eco-systems 173-78 (Washington, D.C.: Conservation Foundation, 1974).Google Scholar

622 See notes 277-89 supra and text at same.Google Scholar

623 See, e.g., Illinois Cent. R.R. v. Illnois, 146 U.S. 387 (1892); State v. Black River Phosphate Co., 32 Fla. 82, 13 So. 640 (1893); Colberg, Inc., v. State ex rel. Department of Pub. Works, 67 Cal. 2d 408, 432 P.2d 3, 62 Cal. Rptr. 401 (1967), cert, denied, 390 U.S. 949 (1968). See generally Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Interpretation, 68 Mich. L. Rev. 471 (1970); Note, The Public Trust in Tidal Areas: A Sometime Submerged Traditional Doctrine, 79 Yale L.J. 762 (1970).Google Scholar

624 See Babcock & Feurer, supra note 410, where the authors “examine the special status land has enjoyed for many centuries, and which distinguishes it from other commodities, and… suggest that land transactions and land use should at least be scrutinized in a manner not unlike the treatment extended to a multitude of other commodities no more ‘affected with a public interest’ than is land.”Id. at 290. The authors conclude: “By any measure, land is a commodity that justifies as much if not a greater degree of public scrutiny and accountability by those private interests profiting from public favors, as does telephone service, the sale of liquor, or wharfingering. The courts and legislatures have not hesitated to extend public regulation to these latter items and many others. If we are serious about reform in land use policy, the time has come to replace old rhetoric and exotic proposals with some ideas that have been around for centuries in respect to public regulation of transactions in other commodities far less affected with the public interest than is the case with land.”Id. at 334.Google Scholar

625 See note 200 supra. Google Scholar

626 See, e.g., note 167 supra and text at same.Google Scholar

627 See, e.g., notes 393-400 supra and text at same concerning the doctrine of preemption.Google Scholar

628 See note 395 supra and appended text.Google Scholar

629 See note 396 supra. Google Scholar

630 See note 382 supra. Google Scholar

631 See notes 384-86 supra and text at same.Google Scholar

632 See, e.g., note 387 supra for the Ninth Circuit's rationale in Construction Indus. Ass'n v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975), cert, denied, 424 U.S. 934 (1976).Google Scholar

633 The courts' “legislative” categorization of many land use decisions, even small-tract rezonings (see note 634 infra), the “fairly debatable” rule, and the presumption of validity of legislative judgments are primary judicial techniques for deferring to legislative judgments. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). See generally Richard F. Babcock, The Zoning Game: Municipal Practices and Policies (Madison: University of Wisconsin Press, 1966); Richard Babcock, The Courts Enter the Land Development Marketplace, reprinted in Billboards, Glass Houses and the Law 49, 64 (Colorado Springs: McGraw-Hill Book Co., [Shepard's] 1977) (“the limited, if essential role of the courts: to act as a predicate to legislative reform; to so dramatize the absurdities and inequities in a fractured system of governmental regulation, designed for a quieter era, that the legislators will get about the business of realigning some of the decisionmaking power and redefining the criteria by which the public regulation of land use is to be measured”). For a recent example of the federal courts' reluctance to become embroiled in land use disputes, see Construction Indus. Ass'n v. City of Petaluma, 522 F.2d 897 (9th Cir. 1975), cert, denied, 424 U.S. 934 (1976) (application of strict standing requirement of Warth v. Seldin, 422 U.S. 490 (1975)). See also Babcock, The Courts Enter, supra, at 49 (“Looking back, I regret my failure to be even more outspoken in warning against bringing exclusionary zoning cases in the federal courts”).Google Scholar

634 Although a few state supreme courts have reconceptualized the small-tract rezoning, e.g., Aldom v. Borough of Roseland, 42 N. J. Super. 495, 127 A.2d 190 (1956); Fasano v. Board of County Comm'rs, 264 Ore. 574, 507 P.2d 23 (1973); Snyder v. City of Lakewood, 542 P.2d 371 (Colo. 1975); City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (Colo. 1974); other state supreme courts, e.g., Olley Valley Estates, Inc. v. Fussell, 232 Ga. 779, 208 S.E.2d 801 (1974), continue to follow the majority position that even a small-tract rezoning is a legislative function. See generally Edward J. Sullivan, Araby Revisited: The Evolving Concept of Procedural Due Process Before Land Use Regulatory Bodies, 15 Santa Clara Law. 50 (1974). For the apparent federal court view, see South Gwinnett Venture v. Pruitt, 482 F.2d 389 (5th Cir. 1973), cert, dismissed, 416 U.S. 901 (1974). (“The adoption of a legislative plan for the entire community must be distinguished from the treatment which a specific tract of land receives when its owner petitions for reclassification under that plan.”Id. at 391); but cf. City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976) (upheld Eastlake, Ohio's city charter provision, which required that proposed land use changes be ratified by 55 percent of the voters. The majority opinion felt this process “ensures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services.”Id. 678-79 (quoting James v. Valtierra, 402 U.S. 137, 143 (1971)).Google Scholar

635 See note 119 supra. Google Scholar

636 See, e.g., Environmental Land and Water Management Act of 1972, Fla. Stat. Ann. ch. 380 (West 1974 & Cum. Supp. 1978); State Comprehensive Planning Act of 1972, Fla. Stat. Ann. §§ 23.011-. 140 (West Cum. Supp. 1978); and the Local Government Comprehensive Planning Act of 1975, Fla. Stat. Ann. §§ 163.3161-.3211 (West Cum. Supp. 1978).Google Scholar

637 Final Report, Environmental Land Management 76-77 (State of Florida, 1973).Google Scholar

638 Water Act § 404(g), 33 U.S.C.A. § 1344(g).Google Scholar

639 Analyzing the program within the analytic framework outlined above, the corps' “public interest review” criteria and its benefit-detriment approach to decision making (notes 150-92 supra) would seem to meet the first test of adequate consideration of competing economic and social values. However, each of the other categories suggests some questions that need further study and explanation.Google Scholar

(1) Is a federal agency the optimum agency to make these benefit-detriment land use decisions decisions that obviously still leave considerable latitude for ad hoc policy judgments? The answer to this question depends in part upon the ability of the corps to promulgate rules which provide reviewable standards and adequately confine its discretion. See notes 183-88 supra and text at same.Google Scholar

(2) Since the § 404 program is not likely to be found to preempt state programs on the same subject, a question clearly foreclosed against preemption in the Clean Water Act Amendments of 1977, Water Act § 404, is there need for a dual state-federal regulatory program, assuming that states could be persuaded to fulfill these regulatory responsibilities and administer wetlands programs? Could the same goals be achieved by state programs administered pursuant to federal standards? The answers to these questions also depend upon a better understanding of regional differences among wetlands and a better understanding of the kinds of wetlands and activities in wetlands that are most likely to have interstate effects.Google Scholar

(3) Will reliance on the Water Act and corps regulations result in ongoing study and planning for wetlands? Are there techniques for encouraging stronger state and local governmental participation, providing impetus for experimentation and modification, better accounting for regional diversities? Note that if states let the federal government carry the major burden, then the impetus for planning and the interstitial development of wetlands management programs will come primarily from the Corps of Engineers.Google Scholar

(4) Since the public ultimately bears the cost of environmental protection programs, are there means of simplifying the process and removing unneeded duplication in permit requirements? Again, the answer depends upon knowing whether certain of the wetlands now within the 404 jurisdiction could be adequately protected by the states or local governments pursuant to federal standards. More scientific study is needed before the functions and interstate relationships are fully understood.Google Scholar

640 See notes 273-324 supra and text at same.Google Scholar

641 16 U.S.C. §§ 1451-1464.Google Scholar

642 Cal. Pub. Res. Code §§ 30000-30900 (West 1977 & Cum. Supp. 1978).Google Scholar

643 Fla. Stat. Ann. §§ 380.012-.10 (West 1974 & Cum. Supp. 1978).Google Scholar

644 See, e.g., Food Task Force, University of California, A Hungry World: The Challenge to Agriculture: General Report (Berkeley: University of California Division of Agricultural Sciences, 1974); notes 368-71 supra and text at same.Google Scholar

645 California Coastal Commissions, supra note 368, at 54-61.Google Scholar

646 Based on several interviews by the author in San Francisco and Sacramento, June 1976.Google Scholar

647 Cal. Pub. Res. Codes §§ 31000-31406 (West 1977). The State Coastal Conservancy (consisting of the chairman of the California Coastal Commission, the secretary of the resources agency, the director of finance, and two members of the public appointed by the governor, id. at 31100) may, among other things, “acquire fee title, development rights, easements, or other interests in land located in the coastal zone in order to prevent loss of agricultural land to other uses and to assemble agricultural lands into parcels of adequate size permitting continued agricultural production.”Id. at 31150.Google Scholar

648 FCZMA § 307(f), 16 U.S.C.A. § 1456(f).Google Scholar

649 Id.§ 307(e)(1), 16 U.S.C.A. § 1456(e)(1).Google Scholar

650 Mandelker, supra note 415, at 245.Google Scholar

651 See FCZMA §§ 302, 303, 16 U.S.C.A. §§ 1451, 1452.Google Scholar

652 See notes 382-402 supra and text at same. But cf. City of Philadelphia v. New Jersey, 98 S. Ct. 2531 (1978), supra note 391 and text at same (holding that New Jersey's solid waste disposal act, which prohibited the importation of most out-of-state solid or liquid waste, violated the commerce clause).Google Scholar

653 426 U.S. 833 (1976).Google Scholar

654 See notes 562-64 supra and text at same.Google Scholar

655 See notes 558-61 supra and text at same.Google Scholar

656 426 U.S. at 852 (quoting Fry v. United States, 421 U.S. 542, 547 (1975)).Google Scholar

657 See notes 449-87 supra and text at same.Google Scholar

658 Cal. Pub. Res. Code §§ 30000-30900 (West 1977 & Cum. Supp. 1978).Google Scholar