394 



Some fundamental legal questions on estuarine use are (V-2-1) : 



( 1 ) How much of the estuarine zone is owned by Federal, State, 

 local governments, and by private parties ? 



(2) How was ownership acquired (e.g., colonial or legislative 

 grants, adverse possession, condemnation, leases) ? 



(3) What limitations are there on ownership — what rights and 

 privileges does the public have to use estuaries and their resources 

 mcluding privately owned lands? 



(4) What kinds of legislation and regulatory tools are consti- 

 tutional and offer the best framework for management of the 

 estuarine zone ? 



BASIC STATE-LEVEL LEGAL PRINCIPLES 



The above questions indicate the variety of legal and policy prob- 

 lems. However, some basic legal principles and trends can be outlined, 

 even though their application has varied historically from State to 

 State. A fundamental doctrine dating from its English common law 

 origin is that of the public trust and right — that these coastal and 

 submerged lands are held by the State in trust to be used by all the 

 people for certain purposes, such as navigation, commerce, hunting 

 and fishing, and (more recently) for parks and recreation. Public 

 ownership usually inchides four types of lands : 



(1) submerged lands (beds of navigable waters owned by the 

 State up to the 3-mile territorial limit) and 



(2) tidelands (generally defined as the coastal area between 

 mean high and low tides) . 



The extent of the public's right to use and have access is less clear 

 in the case of 



(3) marshlands oi swamplands (subject to extremely high 

 tides) and 



(4) abutting lands which are affected by water uses. 



Subject to the paramount Federal interest in protecting navigation, 

 the States generally control the uses of water within their territorial 

 limits. Under their police power they may regulate pollution, sew- 

 age disposal, control harbor lines, grant fishing and hunting licenses, 

 and issue boating permits. The land-use prerogatives of the State, 

 such as zoning, have usually been delegated to the municipalities and 

 local governments. 



Although held by the State in trust for the public, some tidelands 

 have been purchased by private owners. However when sold, the public 

 has the right of commerce, navigation, and fishing in these areas. 

 These use rights remain until the area is dredged or so changed physi- 

 cally that these rights can no longer be exercised. 



OWNERSHIP PROBLEMS 



In practice, problems of estuarine zone ownership and use rights 

 abound in every coastal State. Desj^ite the commonly accepted public 

 trust doctrine, States can and have transferred ownership to private 

 individuals by outright grants. Short of purchasing the land, individ- 

 uals have acquired rights and more limited interests through leases. 



