For instance, since 1958, the Fish and Wildlife 

 Coordination Act has required that the Corps of 

 Engineers consult with the Fish and WUdlife 

 Service and with the State administrator of 

 wildlife resources "with a view to the conservation 

 of wildlife resources by preventing loss of and 

 damage to such resources."^* By administrative 

 agreement between the Secretary of the Interior 

 and the Secretary of the Army, dated July 13, 

 1967, procedures have been established to review 

 permit applications for dredging or filling. Under 

 the agreement, if the Secretary of the Interior 

 advises that proposed operations will unreasonably 

 impair natural resources or related environment, or 

 reduce water quality below appUcable standards, 

 the Secretary of the Army will either deny the 

 permit or impose such conditions as he determines 

 to be in the public interest. 



At issue is whether Federal power over naviga- 

 tion includes delegation to the Secretary of the 

 Army of discretionary authority to deny dredging 

 and filling permits where no adverse effect on 

 navigation will result, but health, natural re- 

 sources, recreation, and other non-navigational 

 values will be impaired. 



Additional discussion of this issue is continued 

 in Section II-F, Dredging and Filling. The first 

 tests of the Secretary of the Army's discretionary 

 authority under the River and Harbor Act, with 

 respect to non-navigation values, are pending in 

 the courts. 



In addition to the review of Corps of Engineers 

 applications under the Fish & Wildlife Coordina- 

 tion Act, a mechanism is needed to circulate 

 permit applications to all interested Federal agen- 

 cies for comment, such as in those cases involving 

 construction which might affect the submerged 

 lands limits of the States. Such mechanism might 

 be worked out administratively in the beginning, 

 but we foresee a need for legislative direction from 

 Congress. 



F. Submerged Lands 



Marshall McLuhan postulates in "Under- 

 standing Media" that the introduction of new 

 technology creates a new environment which 

 changes the scale or pace or pattern of human 



affairs, and shapes and controls the scale and form 

 of human association and action. By necessary 

 imphcation a new environment creates conflicts 

 and competing uses, and, of course, the need for 

 new order that previously did not exist. The 

 technological capability to exploit oil and gas 

 offshore is an example of a new environment 

 created by technology, which, in turn, has had 

 substantial impact upon the development not only 

 of domestic law but also of international law. 



The new environment required definition of 

 ownership and boundaries of the submerged lands 

 surrounding the United States, particularly 

 between the Federal Government and the coastal 

 States, and from the new technological capability 

 has grown major litigation and legislation in the 

 United States, and led to the Geneva Conferences 

 on the Law of the Sea in 1958 and 1960. 



The starting point is the principle that both 

 title and dominion, where the tide ebbs and flows, 

 of all the lands below high water mark, are in the 

 sovereign.^ ' For a long time it was believed in the 

 United States that each coastal State of the United 

 States was a sovereign, to which title to lands 

 under navigable waters had passed, either by 

 succession to the sovereignty of the Crown as to 

 the original 13 States,^ ^ or upon their later entry 

 into the Union, as to the Territories.'' Exploita- 

 tion of petroleum resources off the coast of 

 California began in 1897, and continued without 

 State or Federal control until 1921, when the 

 Cahfornia legislature adopted an exploration and 

 leasing act.* " 



From 1921 through 1945, apparently on the 

 assumption that the rules stated above applied 

 equally to all lands beneath navigable waters, 

 including those beyond the outer limits of inland 

 waters, California controlled the exploitation of 

 petroleum through leases and permits.* ' 



'*Act of March 10, 1934, 48 Stat. 401, as amended, 16 

 U.S.C. 661-666C. 



"See Shively v. Bowlby. 152 U.S. 1, 11 (1893). See 

 also cases cited supra note 15. 



^^ Martin v. Waddell, 16 Pet. 367 (1842). 



^^ Pollard's Lessee v.Hagan. 3 How. 212(1845). 



Recent discussions of the submerged lands contro- 

 versies are found in Swarth, "Offshore Submerged 

 Lands," 6 Land and Natural Resources Division Journal 

 109-57 (April 1968), a publication of the Department of 

 Justice; and Browning, "Some Aspects of State and 

 Federal Jurisdiction in the Marine Environment," a paper 

 presented at the Third Annual Law of the Sea Institute, 

 June 1968. 



See Krueger, "State Tidelands Leasing in California," 

 5 U.C.L.A. L. Rev. 427 (1958). 



111-115 



