and other structures in the waters within their 

 boundaries, and to regulate their use,' ^^ including 

 regulation by zoning under the police power 

 delegated to the municipalities.' ^' 



F. Dredging and Filling 



Earlier chapters of this Report have discussed 

 the impact of dredging and filling for navigation 

 purposes on the ecology and hydrology of coastal 

 areas. Dredging and filling takes many forms, 

 including mining of sand, gravel, and oyster shells, 

 disposal of spoil, pumping of sand to make 

 beaches, of fill and solid wastes for housing and 

 other real estate developments, draining of marsh- 

 land for mosquito control, and reclamation of 

 marshland for agriculture. 



The range of State attitudes toward protection 

 of coastal and estuarine areas varies considerably. 

 Appendix D to this report presents in summary 

 form some means by which States regulate coastal 

 and estuarine areas. It reports that: 



a common denominator of regulation in all or 

 most of the states in participation in Corps of 

 Engineers navigation permit proceedings, general 

 water pollution control laws, fish and game regula- 

 tions, and some controls exercised in conjunction 

 with disposal or lease of state owned underwater 

 lands.' ^^ 



The enumerated controls also appear to be the 

 minimal powers available to our coastal States. To 



Cf., New York: Conservation Uw, §429c; Cal- 

 ifornia: Haiboi and Navigation Cases, §3821; Co- 

 nnecticut: Statutes, §15-7; Mississippi Code Ann., 

 §3374-142; New Jersey: S.A., §40:68-12; South Caro- 

 lina: Code, §41-61. 1-61.2; Louisiana: S.C.C.C, art. 452; 

 Florida: Stat. 167.21. 



*^'See Brady v. Board of Appeals of Westport, 348 

 Mass. 515, 524, 204 N.E. 2d 513 (1965). See also, zoning 

 regulations, Town of Guilford, Conn., §4.5.8.1; City of 

 Richmond, California, Ordinance No. 125 N.S. Examples 

 of special zoning districts for tide and shorelands in 

 California are the City of Chula Vista's Tidelands Zone, 

 established by Ordinance No. 795 (1962); the City of 

 Coronado's Beach Zone, established by Ordinance No. 

 1147 (1967); or the City of Richmond's Special Features 

 Additive District, established by Ordinance No. 122 N.S. 

 (1965); and in Florida the City of Saras6ta's Marine Park 

 District, established by Ordinance No. 1494 (1967). In all 

 of these districts, uses and activities incompatible with the 

 development concept of the whole are either eliminated 

 or severely restricted. 



A Selected Summary of State Activities in Coastal 

 Regulation, Milton S. Heath, Jr., Institute of Government, 

 University of North Carolina, Chapel Hill, North Carolina, 

 July 1968. 



them must be added the powers that several States 

 have granted, extending authority well beyond 

 those stated, and, indeed, ahead of existing Fed- 

 eral legislation. 



In some States, navigation is still the principal 

 criterion for allowing dredging or filling of tide- 



lands. 



However, the role of the Corps of 



Engineers, acting either pursuant to the Fish and 

 Wildlife Coordination Act, or on the basis of State 

 or local objections to proposed dredging or filling 

 operations, can have a significant impact upon 

 preservation of non-navigation values. 



It is the policy of the Corps of Engineers that in 

 cases where a proposed structure or dredging 

 operation is unobjectionable for the purposes of 

 navigation, but State or local authorities decUne 

 their consent to the work, the Corps normally will 

 not issue a permit.' ^^ 



The ultimate authority for use of tidelands and 

 submerged lands, with respect to navigation, lies 

 with the Federal Government and its control of 

 navigation under Article 1, section 8 of the U.S. 

 Constitution, the Commerce Clause. Federal con- 

 trol over dredging and filling to improve navigation 

 is implemented by the Rivers and Harbors Act, 

 based on Congress' power over navigation.' ^ ^ 



While this Act and the cases interpreting give 

 unquestionable authority to the United States to 

 control improvements for navigation, one unset- 

 tled question is the degree, if at all. Congress' 

 power over navigation under the Commerce Clause 

 can be extended to preserve other values in the 

 coastal zone. Under the Fish and Wildlife Coordi- 

 nation Act,' ^'^ the Corps of Engineers is required 

 to consult with the Fish and Wildlife Service of the 

 Department of the Interior before granting a 

 dredging or filling permit, a process administra- 

 tively agreed upon by the Secretaries of the 

 Interior and Army, by their agreement of July 13, 

 1967. 



Both the Fish and Wildlife Coordination Act 

 and the administrative agreement seek to combat 

 pollution and to conserve natural and recreational 



^ See, e.g. Alabama: Ala. Stats Title 38, §122 

 Delaware: Del. Code Ann., Title 23, §150; Virginia: Va 

 Code, §62-2.1 (1966 Supp.). 



132 



Estuarine Hearings, supra note 43, at p. 137. 



'^^Act of March 3 

 (1964). 



'^■^Act of August 12 

 662 (1964). 



1899, 30 Stat. 1151, 33 U.S.C. 403 

 1958, 72 Stat. 563, 16 U.S.C. 



111-130 



