The restriction, and the water-born commerce notion it is tied to 

 date back to the days when interstate commerce Included fur trappers in 

 canoes. A broad definition has evolved that reaches some adjacent 

 wetlands [96]. The broad definition is due in part to the variety of 

 objectives the servitude serves in addition to the protection of commercial 

 shipping [97]. 



In "navigable waters" where the navigation servitude does not exist 

 in its traditional form (because the statutory definition exceeds the 

 limits of the servitude) the Federal Water Pollution Control Act 

 Amendments of 1972, PL 92-500, require some types of permits for 

 activities which pollute the waters of the United States, based on what 

 is called the "Commerce Clause" of the U.S. Constitution [98]. Considerable 

 controversy has been generated over the exact limits of this authority and 

 its relationship to the navigation servitude (see Appendix A). 



A state's regulatory authorities are based on analogous legal concepts 

 and state constitutional provisions [99]. Unless the Congress explicitly 

 declares an exclusive Federal interest, both state and Federal regula- 

 tions have equal validity [100]. The result has been referred to as the 

 "multiple veto," over state coastal waters and shorelands since neither 

 government can override the other. Federal regulations often require 

 state planning and permitting decisions to be completed before considera- 

 tion of Federal permit applications. Of particular importance is the 

 Coastal Zone Management Act of 1972 which provides for a referral process 

 in which Federal actions are reviewed for consistency with approved State 

 Coastal Zone Management Programs under the guidance of the Office of 

 Coastal Zone Management in the Department of Commerce [101]. Others are 

 being developed for specific permit areas, such as dredge and fill (see 

 Section 3.3.1). 



3.1.2 Reasonable Regulation 



Critics of government regulations frequently argue that procedures 

 operate unfairly in particular cases. Fairness translated into legal 

 doctrine is called "due process" [102]. In most general terms, it requires 

 a process including a public, plausible and factually documented explana- 

 tion when otherwise similar situations are treated differently under a 

 particular regulation. It also places outer boundaries on the ways in 

 which government action may affect private property. 



The most commonly cited element of this argument is the "taking 

 issue." A landowner whose land is slated for expropriation for a 

 recreation area or public refuge is protected by the due process "taking" 

 provisions of the U.S. Constitution. Procedures are watcfied closely by 

 state and Federal Courts. Acquisition must be for a legitimate public 

 purpose, and the government must provide "just compensation," usually 

 defined as fair market value of the property excluding any influence from 

 the proposed public improvements. There are no exceptions to this 

 rule [103]. 



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