398 



Finally, and most controversial, substantive due-process, not allow- 

 ing any property to be taken without just compensation, can be inter- 

 preted to disallow use restrictions that may deprive or damage prop- 

 erty owners. Courts vary in their interpretation of the States' police 

 power and the extent to which they will permit use restrictions without 

 declaring them to amount to a taking of property without due com- 

 pensation. It is particularly unclear if a State can repeal, modify, 

 or deprive private owners of their future improvement rights. Espe- 

 cially in the case of fill control, there are few yardsticks as to what 

 compensation or fair return must be allowed an owner. The variation 

 in dredge-and-fill regulations among the coastal States is indicated in 

 the following table V.2.2. It also points out the States which apparently 

 do not have a state-level regulatory permit system for dredge-and-fill 

 operations. 



Most State laws are considered to be legitimate exercies of the 

 police power under a presumption of validity, although there have 

 been some significant exceptions to this rule. Thus, to avoid involved 

 litigation and possible annulment, State laws must be carefully drafted 

 to avoid being successfully contested on the above grounds. 



MODEL STATUTE GUIDELINES 



Many of the coastal States expressed a need for quidelines for 

 assistance, especially from the Federal Government, for the develop- 

 ment of adequate or strengthened regulations for the use control of 

 resources in estuarine areas, or portions thereof. 



In response to this call for assistance, the national estuarine pol- 

 lution study, through a contract awarded to the University of Mary- 

 land School of Law, developed a model statute for Chesapeake Bay 

 Basin management. The Chesapeake Bay was selected for this project 

 because it possesses many characteristics, benefits, potentials, and 

 problems which are common to many of the estuarine areas of the 

 United States. The model statute, developed under this contract, is 

 included in the following chapter 9 of this part V of the report. 



TABLE V.2.2.— STATE-LEVEL REGULATORY SYSTEMS FOR DREDGE AND FILL IN COASTAL AREAS 



The statute is considered to be applicable in principle to other 

 estuarine areas of the United States, and it is presented as suggested 

 guidelines which could be tailored by the coastal States to meet their 

 needs in important estuarine areas in order to improve or strengthen 



