resources in dredging and filling U.S. navigable 

 waters. 



The first test of Corps of Engineers authority to 

 deny a permit for reasons other than adverse effect 

 upon navigation is pending in the Federal courts. 

 The case of Zabel v. Tabb^^^ places at issue the 

 discretion of the Corps of Engineers to deny a per- 

 mit for dredging and filling under the Rivers and 

 Harbors Act on grounds other than navigation. The 

 question of Congress's power to give such discre- 

 tion is not challenged in the case. The Corps found 

 that the work would not have an adverse effect 

 upon navigation, but denied the permit because 

 issuance of the permit (1) would result in a harmful 

 effect on the fish and wildlife resources in Boca 

 Ciega Bay; (2) would be inconsistent with pur- 

 poses of the Fish and Wildlife Coordination Act of 

 1958; (3) was opposed by the Florida Board of 

 Conservation, the County Health Board of Pinellas 

 County, and the Board of County Commissioners 

 of Pinellas County, and (4) would be contrary to 

 the public interest. 



At this writing the court has denied the motion 

 of the United States to dismiss the case on 

 jurisdictional grounds, and the case has not yet 

 been heard on the merits. 



However, in denying the motion to dismiss, the 

 court stated that the Fish and Wildlife Coordina- 

 tion Act does not give discretion to the Corps to 

 deny permits on grounds other than navigation. 

 While it is too early to speculate on the outcome, 

 it is clearly an important case testing the very 

 essence of Federal law attempting to protect 

 natural resources through exercise of the naviga- 

 tion power. 



In another pending case, the United States 

 seeks to enjoin a dredging operation in Newfound 

 Harbor, Florida, on objection from the Federal 

 Water Pollution Control Administration and the 

 Florida State Board of Health that the flow of 

 sewage effluent from a nearby sewage treatment 

 plant is being blocked, creating a health hazard. 

 The injunction is sought under the Rivers and 

 Harbors Act of 1899, for failure to obtain a permit 

 for the dredging and filling operations. 



''"Alfred G. Zabel and David H. Russell v. R. H. Tabb, 

 Col, USA, Stanley Resor, Secretary of the Army, and the 

 United States of America, Civ. No. 67-200-T, United 

 States District Court for the Middle District of Florida, 

 Tampa Division. 



G. Summary 



The techniques for regulating land uses are 

 numerous, ranging from public acquisition of fee 

 simple title through a variety of forms of compen- 

 sable regulation, to noncompensated regulation 

 such as classical zoning. The techniques for water- 

 use regulation range from efforts to promote 

 navigation for commercial purposes, through wet- 

 lands protection laws which provide for ecological 

 considerations in regulation, to State-wide water- 

 use zoning, such as that proposed in Hawaii. 



In making plans and decisions to manage the 

 coastal zone, both land and water uses must be 

 taken into consideration in determining the 

 powers to be granted and the functions to be 

 served by any government agency having the 

 responsibility and jurisdiction to manage the 

 coastal zone. 



Economic interests have been well-served by 

 regulatory techniques in the past, and must con- 

 tinue to be strongly represented in future regula- 

 tion. Historically more difficult in our society is 

 the use of regulatory techniques to serve qualita- 

 tive values— aesthetics, conservation of natural re- 

 sources and wildlife, and preservation of open 

 space. 



However difficult it is to serve qualitative 

 values, balanced management of our coastal envi- 

 ronment requires effective planning, regulation, 

 acquisition, and enforcement, consistently applied, 

 to preserve and enhance both the qualitative values 

 and the economic interests found in the coastal 

 zone. 



We have briefly touched upon the legal prob- 

 lems confronting any State or local authority given 

 the responsibility to plan for management of a 

 coastal area. All of these should be considered in 

 granting powers to any governmental agency such 

 as recommended in Chapter 10, i.e., establishment 

 of State authorities or State-established local or 

 regional authorities to manage coastal areas. There 

 we suggest a range of State management authority, 

 including planning, regulatory, and acquisition 

 authority with respect to coastal and lakeshore 

 waters and lands. 



Management might be provided by a single 

 State agency, given all the powers suggested as to 

 land and water uses. A second alternative might be 

 a State agency with authority over water uses and 

 shared jurisdiction with local governments as to 

 land uses. 



III-131 



