7—
RIPARIAN SYSTEMS AND THE LAW

THE LEGAL AND LEGISLATIVE FRAMEWORK FOR PROTECTION AND UTILIZATION

Is There a National Interest in Wetlands

The Section 404 Experience^[1]

John R. Kramer^[2]

Abstract.—Section 404 of the Federal Water Pollution Control Act requires a permit from the US Army Corps of Engineers for the placement of dredge or fill material in the waters of the United States. As interpreted by the courts, this law provides significant federal protection for wetlands and similar sensitive aquatic ecosystems. Recent court decisions have used detailed analysis of biologic, hydrologic and edaphic information in defining the scope of Section 404 jurisdiction. These decisions demonstrate that Section 404 can prevent the destruction of wetlands and the species they support. Yet, Section 404 has been the subject of substantial controversy since the first court decisions interpreting its scope. Federal protection of wetlands would be severely curtailed if legislation now pending in Congress is enacted.

Introduction

Controversy and litigation over regulatory programs which affect land development have always been the cutting edge of environmental law. The controversy which has attended the development of Section 404 of the Federal Water Pollution Control Act^[3] (FWPCA) has been no exception to this. Section 404 began as a program narrowly defined by the US Army Corps of Engineers (CE) to regulate fills in traditionally navigable waters and disposal of dredge spoil at designated dumping sites. It has evolved into a major federal regulatory program charged with protecting the nation's wetlands and sensitive aquatic ecosystems from further unnecessary loss or damage.

Section 404 requires a permit from the CE for any activity that results in the disposal of dredge material, or the placement or disposal of dredge material, or the placement of any fill or structure in the waters of the United States.^[4] Certain activities, like normal farming, silviculture and ranching activities are exempt from this permit requirement.^[5] However, the purpose of Section 404 is not the direct regulation of land-use activities. Its objective, like the other provisions of the Clean Water Act,^[6] is to restore and maintain the chemical, physical and biological integrity of the nation's waters.^[7]

When Congress enacted the FWPCA in 1972, it knew that "water moves in hydrologic cycles" and declared that the purpose of the act is to control the discharge of pollutants of the source.^[8] Since that time, the knowledge of hydrology has increased significantly, and it is

[1] Paper presented at the California Riparian Systems Conference. [University of California, Davis, September 17–19, 1981].

[2] John R. Kramer is Attorney, California Department of Water Resources, Sacramento. The views and opinions expressed are exclusively those of the author and do not necessarily reflect the official policies and views of the State of California or the Department of Water Resources.

[3] PL 92-500, 86 Stat. 884, 33 U.S.C. Sec. 1344, as amended by the Clean Water Act of 1977, PL 95-217, 91 Stat. 1566 (1977).

[4] Section 404(a), 33 U.S.C. Sec. 1344(a).

[5] Section 404(f)(1), 33 U.S.C. Sec. 1344(f)(1).

[6] See note 3, supra . The 1977 amendments indicated that the entire act, formerly known as the Federal Water Pollution Control Act (FWPCA), may be referred to as the Clean Water Act. This paper will refer to the act as amended as the Clean Water Act. Reference to the FWPCA refers to the act as it was prior to the 1977 amendments.

[7] Ibid ., Section 101(a), 33 U.S.C. Sec. 1251(a).

[8] See S. Rep. No. 414, 92d Congress, 1st Session 77, reprinted in Volume 2, Congressional Research Service, "A Legislative History of the Water Pollution Control Act Amendments of 1972," 1495 (1973) (hereinafter cited as "Legislative History").

apparent that all parts of an aquatic ecosystem are interconnected. It is recognized that wetlands are important in biologic functions including food chains, habitats, spawning and nursery areas, and resting sites for aquatic and terrestrial species. Wetlands also shield other areas from wave and storm erosion. They moderate the effects of flood by absorbing and moderating the rush of floodwaters; they also moderate the effects of drought by slowly releasing their stored water.^[9] One court summarized the value of a wetland to the biological and physical integrity of the water this way:

Most of us are accustomed to defining a river by the width of its flowing waters, just as we mark the edge of the sea by the shore where its waves meet the land. In fact, the boundaries of these waters are much more elusive. The neighborhood of the river, the transition area between flowing water and dry land, is as important as the river itself to the continued productivity of both land and water.^[10]

The broad scope of Section 404 has brought the Clean Water Act's objective of restoring and maintaining the integrity of the nation's waters into direct conflict with traditional land-use approaches to wetlands. In traditional approaches to land use, wetlands are allowed to be filled and converted to uses such as waste disposal, development, or agriculture. Controversy has raged unabated over the scope of Section 404 jurisdiction since 1975, when a court ordered broad national protection from the adverse effects of dredge and fill activities to the maximum extent permitted under the Constitution.^[11]

This paper summarizes the development of Section 404 into a major federal regulatory program which now affords significant protection to wetlands. It also discusses how recent judicial interpretations of the Clean Water Act have used the word "wetlands" as a jurisdictional term^[12] to include protection of some riparian systems. Finally, the paper considers several controversial problem areas with Section 404 jurisdiction which have brought about calls for legislation which could seriously curtail the present scope of protection.

It should be noted that there are many other federal laws, beyond the scope of this paper, that may also afford protection to wetlands and riparian systems, including Section 10 of the Rivers and Harbors Act of 1899,^[13] the Fish and Wildlife Coordination Act,^[14] the Wild and Scenic Rivers Act,^[15] the Endangered Species Act,^[16] the Coastal Zone Management Act,^[17] the National Historic Preservation Act of 1966,^[18] and the National Environmental Policy Act of 1969.^[19]

Section 10

The Precedent

Following enactment of the Rivers and Harbors Act of 1899,^[13] the CE became the guardian of the nation's navigable waterways.^[20] Section 10 of that act makes it unlawful without the prior permission of the CE to:

1) create an obstruction to the navigable capacity of the waters of the United States; or

2) build any structure in any navigable water outside of established harbor lines; or

3) excavate, fill, or otherwise alter or modify the course, location, or capacity of any navigable water of the United States.^[21]

As the United States Supreme Court further defined the scope of permissible regulation under the commerce power in the Economy Light^[22] and Appalachian Power^[23] cases, CE jurisdiction under the Rivers and Harbors Act attained what is fundamentally its present scope. This is fre-

[9] For a summary of wetland values considered by the CE in determining whether a permit is in the public interest, see 33 C.F.R. Sec. 320.4(b).

[10] United States v. Weisman , 489 F. Supp. 1331, 1347 (M. Dist. Fla., 1980).

[11] Natural ResourcesDefense Council v. Calloway , 392 F. Supp. 685 (DC, 1975).

[12] See, e.g., Avoyelles Sportsmen's League v. Alexander , 511 F. Supp. 278 (W.D.La. 1981).

[13] 33 U.S.C. Sec. 402. This paper will briefly compare the scope of jurisdiction under Section 10 and Section 404. For a detailed analysis of Section 10, see Barker (1976).

[16] U.S.C. Sec. 661–666(c). See Shipley (1974).

[15] 16 U.S.C. Sec. 1271–1287.

[16] 16 U.S.C. Sec. 1531–1543.

[17] 16 U.S.C. Sec. 1451–1464. Where a state has an approved coastal zone management program, a Section 404 permit must be consistent. See 33 CFR Sec. 320.3(b) and Sec. 325.2(b)(2).

[18] 16 U.S.C. Sec. 470–470(t). See also 33 CFR part 305 (preservation and mitigation of cultural resources in Corps permit procedures).

[19] 42 U.S.C. Sec. 4321–4327.

[20] Navigable waters subject to federal authority in 1899 were defined in The Daniel Ball case (77 U.S. [10 Wall] 557, 563 [1870]), as those which are "used or susceptible of being used in their ordinary condition as highways for commerce . . ."

[21] 33 U.S.C. Sec. 403.

[22] Economy Light and Power Co . v. United States , 256 U.S. 113 (1921). A waterway once navigable in interstate commerce retains its identification as navigable regardless of subsequent modifications.

[23] United States v. Appalachian Power Co ., 311 U.S. 377 (1940). If "reasonable improvements" can make a waterway suitable for navigation in interstate commerce, it is subject to federal jurisdiction.

quently referred to as "traditional navigability." The touchstone for federal jurisdiction is navigability—the physical ability (or the potential) of a waterway to carry interstate commerce. The shoreward boundary of federal authority under the Rivers and Harbors Act is the ordinary highwater mark of rivers and lakes^[24] and the mean high-tide line of tidal areas.^[25]

The CE has almost always asserted the highwater mark as the basic limit of Section 10 jurisdiction. Projects beyond the point of traditional navigability or outside the high-water mark are subject to jurisdiction only if they affect the course, location, or condition of the waterbody in such a manner as to impact on the navigable capacity of the waterbody.^[26] Within this jurisdictional boundary, however, the CE has discretion to consider impacts beyond navigable capacity. Its mandate to consider ecological impacts stems from the National Environmental Protection Act and the Fish and Wildlife Coordination Act.^[27]

The CE's jurisdiction over traditionally navigable waters had a major impact on the development of Section 404. The presence of this in-place regulatory program influenced Congress' decision to avoid regulatory redundancy when it structured and strengthened the weak national water pollution laws by enacting the Federal Water Pollution Control Act Amendments of 1972.^[3] Traditional Section 10 jurisdiction has also been used by the opponents of the present Section 404 program as a model of the appropriate limits of federal jurisdiction.

Section 404

Emerges

The 1972 amendments to the FWPCA created a complex and comprehensive array of administrative procedures which were consolidated in a new federal agency—the Environmental Protection Agency (EPA). Section 404, however, which was a part of these amendments, placed the CE in charge of permits for the disposal of dredged or fill material; Congress, in effect, recognized the CE's historic role in protecting the nation's navigable waterways.^[28]

The legislative history of Section 404 is contradictory.^[29] Most of the debate over Section 404 was concerned with designating sites for the dumping of dredge spoil. In several instances, Senator Muskie, the prime architect of the FWPCA, indicated that the purpose of Section 404 was to recognize the CE jurisdiction over traditionally navigable waters.

The conferees were uniquely aware of the process by which dredge and fill permits are presently handled and did not wish to create a burdensome bureaucracy in the light of the fact that a system to issue permits already existed. At the same time, the Committee did not believe that there could be any justification for permitting the Secretary of the Army to make determination as to environmental implications of either the site to be selected or the specific spoil to be disposed of in a site. Thus, the conferees agreed that the Administrator of the Environmental Protection Agency should have the veto over the selection of the site for dredge spoil disposal and over any specific spoil to be disposed of in any selected site.^[30]

Muskie apparently held to the view that the main purpose of Section 404 was regulation of dumping sites. During 1976 hearings he said:

Section 404 is designed to require the Corps, because of their existing authority, to maintain navigation, to regulate the dumping of polluted dredge spoil at specific

[24] United States v. Rands , 389 U.S. 121 (1967)

[25] Borax Consol . Ltd . v. City of Los Angeles , 296 U.S. 10 (1935). The CE, for a while, asserted Section 10 jurisdiction to mean the higher high-tide line on the West Coast. Citing Borax Ltd ., the Ninth Circuit Court of Appeals held this to be beyond the scope of jurisdiction under the traditional navigational authority (Leslie Salt Co . v. Froehlke , 578 F. 2d 742 [9th Cir. 1978]).

[26] 33 C.F.R. Sec. 322.3(a). See also United States v. Rio Grande Irrigation Co ., 174 U.S. 690 (1899) (diversions from non-navigable portion of the river affect its navigable capacity downstream); United States v. Sexton Cove Estates , Inc ., 526 F. 2d (5th Cir. 1976) (work above high-tide line alters course and capacity). The CE has proposed a regulation requiring a permit for work which alters the physical capacity, but it has not been adopted. See 45 Fed. Reg. 62744.

[27] Zabel v. Tabb , 430 F. 2d 199 (5th Cir. 1970). Cert. denied, 401 U.S. 910 (1971).

[28] The Senate version of the 1972 amendments called for regulating dredged and fill material within the NPDES system with a CE certification that a disposal site is reasonably available. The House version established a separate permit system administered by the CE. The conference committee adopted the basic approach of the House version, but with a veto power in the administration of the EPA over any Section 404 permit issued by the CE. See 1 Legislative History: 324; also Sec. 404(c), 33 U.S.C. Sec. 1344(c). Another reason for giving the program to the CE may have been the strong support of the dredging industry for the House version (Caplin 1977).

[29] For a good review of the legislative history of the 1972 and 1977 amendments, see Myhrum (1979).

[30] Exhibit to remarks of Senator Muskie, Debates on Senate Consideration of Conference Committee Report, October 4, 1972, reprinted in 1 Legislative History: 177.

disposal sites, the EPA having veto power over the selection of the sites. This was the intent precisely and specifically stated.^[31]

The final language of Sections 404(a) and (b) enacted by Congress appeared at first glance to be consistent with this purpose. It read:

a) The Secretary of the Army, acting through the Chief of Engineers, may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.

b) Subject to subsection (c) of this subsection [the EPA permit veto], each such disposal site shall be specified for each such permit by the Secretary of the Army: 1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary of the Army, which guidelines shall be based upon criteria comparable to the criteria applicable to the territorial seas, the contiguous zone, and the ocean under Section 403(c); and 2) in any case where such guidelines under clause 1) alone would prohibit the specification of a site, through the application additionally of the economic impact of the site on navigation and anchorage.^[32]

Interestingly, Section 404 did not refer specifically to wetlands (it still does not). In the early days of the FWPCA, the CE interpreted Section 404 as not enlarging its historic jurisdiction under the 1899 Rivers and Harbors Act. It promulgated regulations defining "navigable waters" for all purposes, including the FWPCA, as "those waters of the United States which are subject to the ebb and flow of the tide, and/or ar presently or have been in the past, or may be in the future, susceptible for use for the purposes of interstate or foreign commerce."^[33]

This traditional definition of "navigable waters" did not prevail. While there is some legislative history, such as Muskie's statements, supporting a traditional definition, Section 404 uses words defined elsewhere in the act in a substantially more expansive manner. It was the intent of Congress, with respect to the FWPCA as a whole, that ultimately prevailed when the courts had to construe the scope of Section 404.

To accomplish the objective of the act—namely, the restoration and maintenance of the chemical, physical and biological integrity of the nation's waters^[7] —the discharge of a pollutant from any "point source" into the nation's waters is forbidden unless authorized under Section 402^[34] or 404.^[35] "Discharge of a pollutant" is defined in part as "any addition of a pollutant to navigable waters from any point source."^[36] The act defines "pollutant" and "point source" very broadly.

The term "pollutant" means dredged spoil , solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical waste, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock , sand , cellardirt , and industrial, municipal, and agricultural waste discharged into water^[37] (emphasis added).

The term "point source" means any discernible confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.^[38]

Finally, the act defines "navigable waters" as "the waters of the United States, including the territorial seas."^[39]

Section 404 uses the phrase "navigable waters" without any qualification to indicate that any different meaning of the term is intended. The joint statement of the Conference Committee explained the act's definition.

The Conferees fully intend that the term "navigable waters" be given the broadest possible constitutional interpretation unencumbered by any agency determinations which

[31] Section 404 of the Federal Water Pollution Control Act Amendments of 1972, hearings before the Committee on Public Works, United States Senate, 94th Congress, 2d. Session (1976). Cited hereafter as "404 Hearings."

[32] PL 92-500 Sec. 404(a) and (b). The 1977 amendments defined the phrase "secretary" to mean the Secretary of the Army and dropped the repeated reference to the Army. Also, a provision was added to 404(a) requiring the CE to issue a public notice within 15 days after an application is submitted, (33 U.S.C. Sec. 1344[a] and [b]).

[33] 39 Fed. Reg.12115 (1974).

[34] 33 U.S.C. Sec. 1342. Section 402, the National Pollutant Discharge Elimination System (NPDES) requires permits for discharges of liquid effluent (or solids in some instances) from the EPA or from a state to which the program has been delegated.

[35] Sec. 301(a), 33 U.S.C. Sec. 404(f)(1) exempts certain discharges, e.g., from normal farming, silviculture, and ranching, from the act.

[36] Sec. 502(12), 33 U.S.C. Sec. 1362(12).

[37] Sec. 502(6), 33 U.S.C. Sec. 1362(6).

[38] Sec. 502(14), 33 U.S.C. Sec. 1362(14).

[39] Sec. 502(7), 33 U.S.C. Sec. 1362(7).

have been made or may be made for administrative purposes.^[40]

In debates on the Conference Report in the House, Representative Dingell quoted this explanation and said:

Thus, this new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the Corps of Engineers going to govern matters covered by this bill.^[41]

Representative Dingell's statement proved to be prophetic. It was the legislative history of the act's broad definitions and the declaration of its purpose^[42] that controlled judicial interpretation of Section 404. Section 301(a), which forbids discharges of pollutants without a permit, makes the act's definitions of "pollutant," "point source," and "navigable waters" specifically applicable to Section 404. Judicial construction of Section 404 in the context of these other provisions made it inevitable that Section 404 would apply beyond the boundaries of traditional navigability.

NRDC v. Calloway

The CE Takes 404 up the Proverbial Creek

The first judicial construction of the scope of Section 404 was United States v. Holland .^[43] The case involved an enforcement action brought by the EPA against a land-fill project in a mangrove wetland in Florida. The project was beyond the ordinary high-tide line. The court reviewed the legislative history of the act (including the definition of "navigable water") and concluded that the FWPCA defined away the traditional test of navigability. It noted that the legislative history "manifests a clear intent (of Congress) to break from the limitations of the Rivers and Harbors Act to get at the sources of pollution."^[44] Comparing Sections 101(a) and 404, the court concluded:

What these sections do is reveal a sensitivity to the value of a coastal breeding ground. Composed of various interdependent ecological systems (i.e., marshes, mudflats, shallow open water, mud and sand bottom, beaches and dunes), the delicately balanced coastal environment is highly sensitive to human activities within its confines . . . The FWPCA embodies the realization that pollution of these areas may be ecologically "fatal."^[45]

The Holland case is the seminal interpretation of Section 404. The case clearly establishes that:

1. wetlands are a part of the nation's aquatic ecosystem, and they are necessary to the quality and biological productivity of the nation's waters;

2. the discharge of fill materials which causes damage to wetlands is a source of pollution regulated by the act;

3. loss of wetlands has serious effects on interstate commerce, and Congress is not limited by traditional definitions of navigability in regulating these impacts; and

4. while the high-water line may be relevant for other purposes, "it has no rational connection to the aquatic ecosystems which the FWPCA is intended to protect.^[46]

While the Holland case clearly established that Section 404 is not limited by the traditional definitions of navigability, it did not involve the CE regulations limiting their jurisdiction to traditional navigability. The CE did not change its interpretation following the decision.^[47]

In late 1974, the Natural Resources Defense Council brought a declaratory judgment action seeking to compel the CE to rescind its regulation limiting Section 404 jurisdiction to traditionally navigable waters.^[48] On March 27, 1975, the District Court granted the plaintiff's motion for partial summary judgment, ordering the CE to propose new regulations "clearly recognizing the full regulatory mandate of the Water

[40] Conference Report, S. Rep. No. 92-1236 (1972) reprinted in 1 Legislative History. This explanation is quoted in many cases.

[41] 1 Legislative History.

[42] Sec. 101(a). The report of the House Committee on Public Works, which accompanied the House version of the bill referred to the phrase "integrity of the nation's waters"; the word "integrity," as used, is intended to convey a concept that refers to a condition in which the natural structure and function of ecosystems is maintained (H. Rep. No. 92-911, 92d Congress, 2d Session (1972), reprinted in 1 Legislative History.

[43] 373 F. Supp. 665 (M.D.Fla. 1974).

[44] Ibid ., at 673.

[45] Ibid ., at 624–625.

[46] Ibid ., at 676.

[47] Leslie Salt Co . v. Froehlke , 403 F. Supp. 1292 (N.D.Calif. 1974). Modified, 578 F. 2d 742 (9th Cir. 1978), also held that Section 404 jurisdiction extends beyond traditionally navigable waters. Compare United States v. Ashland Oil and Transportation Co ., 364 F. Supp. 349 (W.D.Ky. 1973)—EPA definition of "navigable waters."

[48] The EPA had also criticized the limited CE definition and had urged the CE to expand its definition. See 3 Env. L. Rep. 1240 (1973) and letter of June 19, 1974, from John Quarles to Lt. Gen. W.C. Gribble, reprinted in 404 Hearings.

Act."^[49] The court specifically noted the conference report conclusion that "navigable waters should be given the 'broadest constitutional interpretation'."^[40]

In response to the court's order, the CE published four alternative regulatory scenarios on May 6, 1975.^[50] Two of the proposed definitions extended regulatory jurisdiction to most waters touched by interstate commerce. The other two were slightly broader than the traditional definition.^[51] At the same time, the CE issued an infamous press release.

The press release, which basically described the alternative scenarios, began as follows:

Federal authority to regulate the disposal of dredged or fill material in the waters of the United States will be greatly expanded under proposed regulations published in the Federal Register today and would include practically all lakes, streams, rivers, and wetlands in the United States.

Under some of the proposed regulations, Federal permits may be required for the rancher who wants to enlarge his stock pond or the farmer who wants to deepen an irrigation ditch or plow a field, or the mountaineer who wants to protect his land against stream erosion.^[52]

The infamous press release provoked a storm of protest. It united the opponents of expanded jurisdiction. No mere notice in the Federal Register could provoke as much controversy. The CE received over 14,000 pages of public comment.^[53] The EPA protested the press release,^[54] and from the floor of the Senate Senator Muskie demanded a retraction.^[55] Further, the outraged comments of the agricultural and forest products interests impelled some Congressmen to act. Legislation attacking 404 jurisdiction has been introduced in almost every session of Congress since.^[56]

NRDC v. Calloway elicited two responses from the CE which have had ongoing impacts on federal wetlands protection. First, the infamous press release helped to galvanize the act's opponents. Second, the CE drafted a well thoughtout, orderly and reasonable regulation in response to the court's order. The July 25, 1975, "Interim Final" regulations^[57] established that Section 404 could be administered to protect wetlands without the unreasonable intrusions suggested in the press release.

The Interim Final regulations accommodated the broad jurisdiction mandated by NRDC v. Calloway by incremental expansion in three phases over a period of two years.^[58] Phase I, which took effect immediately, asserted jurisdiction over traditionally navigable waters plus adjacent wetlands. Phase II added primary tributaries to traditionally navigable waters plus all lakes greater than 4 ha. (10 ac.). Phase III included all other waters. The regulations defined "navigable waters" to include coastal and freshwater wetlands. The definition of "navigable waters" was very similar to the definition developed by EPA in 1974 for Section 402 NPDES jurisdiction.^[59] The regulations also included separate definitions for coastal and freshwater wetlands, defining both as areas periodically inundated by water and normally characterized by vegetation that requires saturated (or salty) conditions.^[60]

The regulations defined "dredged material" and "fill material," which were not defined in the FWPCA. The definitions of both terms exempted materials resulting from normal farming, ranching and silviculture activities.^[61] Materials used in emergency reconstruction were also exempted.

To avoid the mass of permit applications inherent in broad jurisdiction (since Section 301(a) forbids discharges without a permit), the regulations authorized CE District Engineers to issue "general permits." A general permit authorized general categories of work found to have insignificant environmental impacts.^[62] The general permit remains a significant feature of the CE regulatory process. It allows the permit

[49] Natural Resources Defense Council v. Calloway , 392 F.Supp. 685, 686 (D.D.C. 1975), reprinted in 404 Hearings.

[50] 40 Fed. Reg. 19766–94 (1975).

[51] See "Wetlands Protection Under the Corps of Engineers' New Dredge and Fill Jurisdiction" 28 Hastings L.J. 223 (1976).

[52] Press release. May 6, 1975. Department of the Army, Office of the Chief of Engineers. Reprinted in 404 Hearings.

[53] Statement of Victor Vesey, Assistant Secretary of the Army for Civil Works, July 29, 1976, in 404 Hearings.

[54] Letter of May 16, 1975, from Russel Train to General Gribble. Reprinted in 404 Hearings.

[55] 121 Congressional Record 17347 (1975). Reprinted in part in 404 Hearings.

[56] See discussion of Breaux, Wright and Tower Amendments below.

[57] 40 Fed. Reg. 31, 322–43 (1975). For a detailed analysis of the 1975 and 1977 regulations see Myhrum (1979).

[58] 33 C.F.R. Sec. 209.120(e)(2).

[59] 40 C.F.R. Sec. 125.1(p) (1975). The CE definition included traditionally navigable waters, interstate waters, and intrastate waters affecting interstate commerce (e.g., used by travellers in interstae commerce). See 33 C.F.R. Sec. 209.120(d)(2)(i) (1975).

[60] Compare 33 C.F.R. Sec. 209.120(d)(2)(i)(b) with Sec. 209.120(d)(2)(i)(h) (1975).

[61] Compare 33 C.F.R. Sec. 209.120(d)(4) and (d)(6)(1975).

[62] 33 C.F.R. Sec. 209.120(i)(2)(ix)(a) (1975).

process to focus on controlling major projects and preventing damage to wetlands.^[63]

During Phase I of the 1975 Interim Final regulations, the CE held hearings around the nation to encourage further public comment. The Interim Final regulations were to be made final in 1977 after Phase III of jurisdiction was implemented. Partly in response to public confusion over the 1975 regulations, and partially to stave off congressional attacks on Section 404, the CE in 1977 revised the regulations into their present form, making several significant changes.

The 1977 regulations dropped the complicated definition of "navigable waters" which had been taken from the EPA regulations.^[57] Instead, the regulations referred to "waters of the United States," the FWPCA term.^[64] This avoided confusion between waters subject to the CE 404 jurisdiction and their traditional Section 10 jurisdiction. The definition of waters of the United States dropped the illogical distinction between coastal and freshwater wetlands. The definition of wetlands also was modified in a manner that would better apply Section 404 to riparian systems. The 1975 regulations had defined a freshwater wetland as one "characterized by the prevalence of vegetation that requires saturated soil conditions" (emphasis added).^[60] The 1972 regulations defined "wetland" as follows:

The term "wetlands" means those areas that are inundated or saturated by surface or groundwater at a frequency and duration to support, and that under normal conditions do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas . . .^[65]

The 1977 regulations also provided an additional mechanism for excluding activities from individual permit review. The "nationwide permit" permitted certain activities in the regulations themselves. For example, discharges into certain identified waters under specified conditions are permitted for utility line crossing, bank stabilization, and minor road crossings.^[66] If an activity described in the nationwide permit categories may have significant individual or cumulative effects on the aquatic environment, an individual permit can still be required.^[67]

The scope of federal authority required by Section 404 and the Calloway case required an effective program to avoid an avalanche of individual permit applications and yet carry out the purposes of the FWPCA. The CE effectively met this challenge by placing regulatory emphasis on larger projects that adversely affect wetlands, while avoiding individual review of all activities that may individually or cumulatively affect water quality.^[68] The regulations made it possible for the CE to provide effective protection to sensitive aquatic ecosystems within their manpower and budgetary constraints. More important, however, the reasonable approach taken by the regulations probably saved Section 404 from legislative attack in 1976 and 1977.

Congress Considers Calloway

Wetlands or Ship Channels?

Congressional response to the controversy caused by NDRC v. Calloway and the CE press release was inevitable. Once Section 404 attracted the attention of Congress, that attention never waned. Congressional efforts in 1976 almost succeeded in returning Section 404 jurisdiction to traditionally navigable waters.

On April 13, 1976, the House Committee on Public Works amended a bill dealing with pollution control authorizations. The amendment, offered by Representative Breaux of Louisiana, would have added two subsections to Section 404:

(d) the term "navigable waters" as used in this section shall mean all waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to their mean high water mark (mean higher high water mark on the west coast);

(e) the discharge of dredged or fill material in waters other than navigable waters is not prohibited by or otherwise subject to regulation under this Act, or section 9, section 10, or section 13 of the Act of March 3, 1899.^[69]

The approach taken by the Breaux amendment would have had serious effects on federal protection of wetlands, which go beyond the issue of

[63] 33 C.F.R. Sec. 209.120(g)(2)(iv) provides that projects in wetlands will not be approved unless required by the public interest.

[64] Sec. 502(7), 33 U.S.C. Sec. 1362(7). See 40 C.F.R. Sec. 323.2(a).

[65] 33 C.F.R. Sec. 323.2(c).

[66] See 33 C.F.R. Sec. 323.4-323.4-3.

[67] 33 C.F.R. Sec. 323.4-4.

[68] Some commentators have noted that the CE regulatory approach avoids the cumulative effects of smaller discharges. See, e.g., Blumm (1980) (a good detailed analysis of the CE' procedures). Yet, that approach was sanctioned by the 1977 Clean Water Act amendments which statutorily exempted certain activities.

[69] H.R. 9650, 94th Congress, 2d Session (1976), Sec. 17. Substantially similar language appears in several bills pending [at the time of this writing] before Congress. See, e.g., S. 777 (Tower) and H.R. 3083 (Hall), 97th Congress, 1st Session (1981).

Section 404. The amendment deleted historical navigability from the traditional Section 10 jurisdiction.^[22] Furthermore, it would have removed Section 10 jurisdiction from discharges in wetlands outside traditionally navigable waters, but which affect the course, condition, or physical capacity of such waters.^[70] The Breaux amendment was defeated in the House on June 3, 1976, in favor of an amendment offered by Representative Wright of Texas. The Wright amendment would have added adjacent wetlands to the Breaux definition.^[71] It also would have allowed the CE to regulate additional areas with the consent of a state. The Wright amendment passed in the House 234 to 121.^[72]

When the Wright amendment was referred to the Senate, Senators Baker and Randolph substituted language for the Wright amendment. It limited CE jurisdiction to traditionally navigable waters and regulated other point source discharges under Section 402.^[73] The Senate Committee on Public Works approved the Baker-Randolph amendment. On the floor, Senator Tower offered the Wright amendment in lieu of the Baker-Randolph amendment and won the first vote 39–38.^[74] Senator Baker then succeeded in getting reconsideration, and on the second vote the Wright amendment failed 39–40.^[75] Had the Wright amendment passed, it is very likely that Section 404 and Section 10 jurisdiction would have been severely curtailed in 1976. As it was, a joint conference committee was unable to work out a compromise, and Section 404 remained unaffected.

The 1977 Clean Water Act Amendments

In 1977, the Wright amendment became a part of the House version of amendments to the FWCPA,^[76] which the House quickly passed.^[77] The Senate passed amendments to the FWPCA which included the Baker-Randolph amendment.^[78]

This time the conferees were able to agree on a compromise which resulted in the Clean Water Act Amendments of 1977.^[6]

Section 404 jurisdiction was not curtailed. Section 404(e), added by the amendments, authorizes the issuance of general permits on a regional, state, or nationwide basis. The term of these permits cannot exceed five years.^[79] This section confirmed the previously questionable authority for general permits and nationwide permits.

Subsection (f) dealt with the major subject of debate during 1976 and 1977: exemption of farming and silviculture. Discharges from normal farming, silviculture and ranching activities, emergency construction, construction of stock ponds and farm and forest roads, and maintenance of drainage ditches are not subject to regulation under Section 404.^[80] Discharges incidental to such activities, which change the use of a waterbody, or impair its flow or circulation are not exempted.^[81] In addition, discharges authorized by an approved state Section 208 plan are exempt.^[82]

The conferees gave great importance to state assumption of dredged and fill material regulation.^[83] While the CE must retain jurisdiction over traditionally navigable waters and adjacent wetlands, a state may apply to the Administrator of the EPA for certification of its regulatory program to issue permits for other water in a manner similar to 402 NPDES programs.^[84]

While the legislative history of the 1972 FWPCA Section 404 contains no reference to wetlands, the 1977 Clean Water Act legislative history is replete with references to wetlands and the purposes they serve.

Implementation of the 404 decision-making process is essential if we are to achieve that goal [restoration of the physical, chemical and biological purity of the nation's waters]. Section 404 represents an essential tool for moderating the degradation and sometimes the irrevocable destruction of aquatic areas that naturally control the

[70] See United States v. Sexton Cove Estates .^[26]

[71] 122 Congressional Record H. 5267 (June 3, 1976). For a detailed comparison of the Wright and Breaux amendments, see 404 Hearings.

[72] 122 Congressional Record H. 5280. The Wright amendment was renumbered as S. 2710 when it was referred to the Senate.

[73] See 122 Congressional Record at 15167-8, 94th Congress, 2nd Session (1976).

[74] Ibid ., at S. 15183.

[75] Ibid ., at S. 15184. For a detailed account of the efforts to pass the Wright amendment, see Caplin (1977).

[76] H.R. 3199, 95th Congress, 1st Session (1977), Sec. 16. See "A Legislative History of the Clean Water Act of 1977; A continuation of the Legislative History of the Federal Water Pollution Control Act (1978), Volume 4, Congressional Research Service. Cited as "4 (or 3) Legislative History."

[77] The vote was 361-43; 123 Congressional Record H. 3063 (April 5, 1977); 4 Legislative History: 1363–65.

[78] S. 1952, 95th Congress, 1st Session (1977) Sec. 49, 4 Legislative History: 619–630.

[79] 33 U.S.C. Sec. 1344(e).

[80] 33 U.S.C. Sec. 1344(f)(1).

[81] 33 U.S.C. Sec. 1344(f)(2).

[82] 33 U.S.C. Sec. 1341(f)(1).

[83] See Conference Report No. 95-830, 95th Congress, 1st Session at 101–105. Reprinted in 3 Legislative History.

[84] Sec. 404(g)-(1), 33 U.S.C. Sec. 1344(g)-(1).

quality of water, including those vital areas of shallow water known as wetlands.^[85]

Even Senator Muskie, who had not been enthusiastic about expansion of Section 404 jurisdiction^[30] said:

First there is the problem of protecting wetlands, that is one of national interest . . . There is no question that the systematic destruction of the nation's wetlands is causing serious ecological damage . . . The wetlands and bays, the estuaries and deltas are the nation's most biologically active areas . . . They are a principal source of food supply. They are the spawning grounds for much of the fish and shellfish which populate the oceans and they are passages for numerous upland game fish. They also provide nesting areas for a myriad of species of birds and wildlife.^[86]

The presence of a clear and unambiguous legislative history directly linking Section 404 with protection of aquatic systems has not been lost on the courts. They have since utilized the intent of Congress, as expressed in the 1977 amendment, defining the boundaries of Section 404 jurisdiction in biological and hydrological terms.^[87] Furthermore, the 1977 amendments have buttressed the CE administrative interpretations which have focused mainly on wetlands. This is further indication, perhaps, of the unusual evolution of the Section 404 program, since the amendments occurred after the 1977 regulations were effective.

Judicial Interpretation and Enforcement

Section 404 has evolved through the dynamic interaction of all three branches of government. The FWPCA was enacted and amended by Congress; it was interpreted (narrowly at first), expanded, and implemented by the CE through its regulations. However, the role of the federal courts has been fundamental to the expansion and ongoing usefulness of Section 404. Section 404 became a major environmental program because in NRDC v. Calloway a court, interpreting the intent of Congress, ordered the CE to make it into one.

The evolution of Section 404 has not stopped with the 1977 amendments. It is the recent decisions of federal courts that fully illustrate the extent to which Section 404 can prevent irreversible damage to sensitive aquatic ecosystems.

The definitions of terms such as "point" source^[88] discharge of dredged or fill material,^[89] or "wetland"^[90] have an importance beyond questions of scientific precision. The courts interpret these definitions with reference to the purpose of the Clean Water Act and its history. These defined phrases are jurisdictional terms which answer a public policy need as well as a scientific one. They determine whether particular activities or locations fall within federal protection.^[91] Examples of several recent cases illustrate how the courts have construed terms used in the act to apply to a wide diversity of activities that harm aquatic systems.

Is a Dam a "Pollutant"?

In Minnehaha Creek Watershed Dist . v. Hoffman ,^[92] the Eighth Circuit Court of Appeals was confronted with the question of whether construction of dams and riprap are "pollutants" regulated by the Clean Water Act. The case involved issues of traditional navigability and Clean Water Act jurisdiction over Lake Minnetonka and Minnehaha Creek in Minnesota.

The lower trial court held that the CE had no jurisdiction over the lake and creek under Section 10 and Section 104.^[93] With respect to Section 10 jurisdiction, the trial court held that while the lake itself was navigable, its outflow did not form a highway over which commerce could be conducted with other states. With respect to Section 404 jurisdiction, the trial court held that since there was no evidence that dams or riprap significantly affect water quality, ". . . there is no federal interest under the [Clean Water Act] in the activity."^[94] The court declared that the CE regulations defining "discharge of dredged and fill material" invalid insofar as they regulated the construction of dams and riprap.^[95]

The Eighth Circuit Court of Appeals affirmed the trial court's holding on Section 10 jurisdiction, but it reversed the holding on Section 404, noting that the court had interpreted the scope of the act too narrowly. Section 301(a) requires

[85] Remarks of Senator Baker during debate on S. 1952, 123 Congressional Record S. 13561, 95th Congress, 1st Session (1977), 4 Legislative History.

[86] 123 Congressional Record S. 13564, 95th Congress, 1st Session (1977). Reprinted in 4 Legislative History.

[87] See, e.g. Avoyelles Sportsmen's League v. Alexander .^[12]

[88] Sec. 502(14), 33 U.S.C. Sec. 1362(14).

[89] Sec. 502(16), 33 U.S.C. Sec. 1362(16).

[90] The act does not define "dredged" or "fill" material. See C.F.R. Sec. 323.2(j) and (m), respectively.

[91] Much as the definition of "navigable waters" determined the scope of jurisdiction in 1975.

[92] 597 F. 2d 617 (8th Cir. 1979).

[93] Minnehaha Creek Watershed Dist . v. Hoffman , 449 F.Supp. 876 (D.Minn. 1978).

[94] Ibid ., at 896.

[95] Ibid ., see 33 C.F.R. Sec. 323.2(n).

a Section 404 or 402 permit for the discharge of pollutants. The Court of Appeals noted that the act's definition of "pollutant" includes "rock, sand and cellar dirt."^[44] it concluded:

We believe that the construction of dams and riprap in navigable waters was clearly intended by Congress to come within the purview of Sections 301 and 404 of the Act. By including rock, sand and cellar dirt in the list of polluting substances, Congress recognized that the addition of these substances could affect the physical as well as the chemical and biological integrity of the waterbody.^[96]

The court held that this interpretation is buttressed by the 1977 Clean Water Act amendments. Since Section 404(f)(1)(B)^[97] specifically exempts maintenance of such structures, it is obvious that such an exemption is necessary if the structures are subject to permit requirements.^[96]

A related issue is whether the water quality effects of storage of water in the reservoir constitutes a "pollutant." The issue was raised in South Carolina Wildlife Federation v. Alexander .^[98] The court found that loss of dissolved oxygen and increase of metallic substances could constitute the "addition of a pollutant into navigable waters" if the plaintiffs prove that the dam caused water quality degradation. The decision only considered the United States' motions to dismiss for which the court deemed plaintiffs' allegations to be true. No federal decision on the merits of dam-induced water quality degradation has been rendered. If included within the Clean Water Act, dam-induced degradation would be regulated under Section 402—NPDES permits.

Construction of a dam is subject to Section 404 jurisdiction even if it is placed across an artificial canal and is privately owned.^[99]

Section 404 jurisdiction over construction of dams continues to be controversial. Most western states, except perhaps California, have seen Section 404 as an unjustified federal intrusion into their sovereign powers to grant and regulate water rights.^[100] Furthermore, the states and local jurisdictions have objected to the possibility that a Section 404 permit to construct a dam may include conditions affecting the way it is constructed or operated.

Does Clearing a Riparian Forest Involve a "Discharge of Dredged or Fill Material"?

Much agriculture in California and the southern states is conducted on land which was originally riparian forest or freshwater wetland (Kahrl 1979). In Louisiana, over 22 million acres of wetlands in the Mississippi River alluvial plain have been cleared; only 3 million acres of riparian woodland remain.^[101]

In Avoyelles Sportsmen's League v. Alexander ,^[87] Judge Nauman Scott was faced with the question of whether clearing of riparian forest in Louisiana, to convert the land to soybean production, was covered under Section 404. The land involved in the case consists of 8,100 ha. (20,000 ac.) within an area generally known as the Lake Long Tract. It is in the Bayou Natchitoches Basin, which is an overflow area of the Red River. The land subject to the clearing operation represented one-quarter of the remaining forest in the basin.

The land was being cleared by bulldozers equipped with shearing blades, which cut off the trees just above ground level. After shearing, the felled trees were bulldozed into windrows where they were burned. Soil and leaf litter were also pushed into the windrows as a result of the clearing operation.

The plaintiffs sought to compel the CE to regulate this activity under Section 404. In response to a court order, the CE surveyed the area and designated portions of the tract as wetland. The CE also determined that:

[a] Section 404 permit is not required for the shearing of trees, where no earth, (other than de minimis ) is moved in the process and the trees are promptly removed through burning or other means. However, under the facts as they are known to the government, a Section 404 permit will be required for the construction of drainage ditches in the wetland area . . .^[102]

The court bifurcated the trial, determining first whether the land clearing-activities came within Section 404. Next, the validity of the CE wetland determination was to be litigated.^[103]

To determine whether land clearing involved the disposal of dredged and fill material, the court had to determine: 1) whether a point source discharge was involved; 2) whether the activity would result in a discharge of dredged

[96] 597 F. 2d at 625–626.

[97] 33 U.S.C. Sec. 1344(f)(l)(B).

[98] 457 F. Supp. 118 (D.S.C. 1978).

[99] United States v. DeFelice , 641 F. 2d 1169 (5th Cir. 1981).

[100] California and Florida have supported broad federal jurisdiction under Section 404 since NRDC v. Calloway .

[101] See Louisiana State University Sea Grant Legal Program, "Louisiana Coastal Law," July, 1980.

[102] 473 F. Supp. 529.

[103] The court's second opinion on the wetland determination is reported in Avoyelles Sportsmen's League v. Alexander , 511 F. Supp. 278 (W.D.La. 1981).

or fill material; and if so, 3) whether the activity was a normal farming and silviculture activity exempt under Section 404(f).

The point source issue was simple. Several previous decisions held that bulldozers are point sources.^[104] The second issue, whether sheared trees, scraped soil, and leaf litter constitute dredged or fill material, had no precedents. The court first turned to the CE definition of a wetland, namely those areas which are periodically inundated and which "support a prevalence of vegetation typically adapted for life in saturated soil conditions."^[65] The court noted that "[a] basic policy of the FWPCA is the protection of our nation's wetlands and the important functions they serve."^[105] The court then reviewed the important functions that wetlands perform,^[9] and it found that each function was served by the riparian woodland involved in the case.^[106] The functions include production of forest detritus, an important link in the aquatic food chain, fish spawning and nursery, and wildlife habitat. If the wetland were cleared, sedimentation and erosion would increase, and greater runoff would occur from cleared farmland. The court concluded that:

The FWPCA would be emasculated insofar as wetlands are concerned were we to conclude that the permanent removal of the wetland's vegetation in the process of converting it to agricultural land was not subject to the Section 404 program. . . . . [W]etlands are important to the public interest because of the important functions they perform. If one destroys a wetland's ability to perform these functions, he has in effect destroyed the wetland insofar as the public interest is concerned.^[107]

Common sense dictates that an activity that results in the destruction of a wetland resource should be subject to regulation under an Act that has as its purpose the restoration and maintenance of the "chemical, physical and biological integrity" of our nation's wetlands."^[108]

The court found that the clearing activity did not constitute normal farming or silvicultural activities exempt under Section 404(f)(1), because that section only exempts ongoing activities. Furthermore, the clearing activity would not be exempt because Section 404(f)(2) denies the exemption to activities that convert a wetland to another use where the flow or circulation of the water may be impaired.^[108] The court rejected the CE statement that no permit was required for land clearing that only moves a "de minimis " amount of earth.

If you clear the wetland where no earth (other than deminimis ) is moved; you can clear and destroy every acre of wetlands in the United States with impunity and without applying for a permit.^[109]

Interestingly, the CE does not follow the decision in the Avoyelles case outside the district where it was decided. The decision does not appear to reflect current CE policy. The following is from a memorandum to all Division Engineers from the Chief of Engineers' Office:

The Corps will continue to determine what activities will constitute a discharge of dredge or fill material in the waters of the United States. Specifically, land clearing may or may not constitute a discharge depending on how it is conducted. That decision shall be made by the District Engineer. The rationale of Avoyelles Sportsmen's League v. Alexander  . . . shall not be used for authority under Section 404 outside the Western District of Louisiana. This issue is also being discussed at the Washington level between the Corps and EPA.^[110]

It should be noted that federal district court decisions generally are not binding precedents outside the circuit where they are decided, though they are persuasive authority.

The CE reluctance to embrace the Avoyelles rationale may be politically motivated. The case would seem to cut dangerously close to the politically forbidden area—regulating agricultural practices. Yet the case is well reasoned and distinguishes routine agricultural practices from activities which result in the permanent destruction of wetlands. Its rule that land clearing is subject to Section 404 (when performed in a wetland to change existing wetland uses) is clearly consistent with Section 404(f)(2) and should be followed nationwide. The decision reflects the maturation of Section 404 into an environmental program designed to prevent the loss of wetlands.

What Is a Wetland?
The Importance of Expert Testimony

Both the opinion in the second Avoyelles case^[103] and United States v. Weisman^[10] illustrate the importance of expert professional opinions in the areas of soils, hydrology, and biology. The courts rely on expert testimony to determine whether an area is a wetland and thus subject to Section 404.^[111]

[104] See, e.g., United States v. Fleming Plantations , 12 E.R.C. 1705 (E.D.La. 1978) (marsh buggies and draglines), United States v. Weisman^[10] (bulldozers).

[105] 476 F. Supp. at 533.

[106] 473 F. Supp. at 533–535.

[107] Ibid ., at 534.

[108] Ibid ., at 535.

[109] Ibid ., at 536.

[110] Memorandum from Major General E.R. Heiberg III, to Division Engineers, May 26, 1980.

[111] See, e.g., Avoyelles , 511 F. Supp. at 288.

The CE 1975 Interim Final regulations defined a freshwater wetland as one which, in effect, supports vegetation that requires saturated soil conditions.^[60] The 1977 regulations changed this to an area that supports "a prevalence of vegetation typically adapted for life in saturated soil conditions."^[65] This change was critical to the result of the second Avoyelles opinion. The court undertook a detailed review of the plant species that occur in the Lake Long Tract and their relative tolerance to periodic saturation.^[112] The 1977 definition of wetland phrase "typically adapted for life in saturated conditions" was construed to include those plant species that can tolerate periodic saturation, rather than just vegetation that must spend its life in saturated conditions. The court held that the definition of wetland includes all vegetation which is capable of and does adapt to saturated conditions.^[113] Thus, a wetland is characterized by the "dominance of tolerant species to the virtual exclusion of purely upland intolerant or nonaquatic species."^[114]

The court clearly saw that "wetlands are transition areas lying between the aquatic and the terrestrial zone."^[115] Thus, the analysis to determine whether an area is a wetland requires expert testimony on the type of soils in the area, the degree and frequency of inundation, and the type of vegetation.^[115]

Expert testimony is also important in determining whether an illegally filled wetland will be restored. The CE regulations provide for court-ordered restoration as a civil remedy when it is in the public interest.^[116] The courts have required illegally filled wetlands restored to their natural conditions.^[117] In United States v. Weisman ,^[10] an illegal road fill that destroyed 0.9 ha. (2.2 ac.) of wetland was ordered removed, and the natural wetland forest replanted at an estimated cost of $19,600. The court found that the natural wetland forest performed substantial natural functions essential to adjacent tidal waters.

The wetland forest on the Weisman property is like productive farm land producing a crop which is harvested not by man but by the natural action of the seasons and the tides . . . The detrital material [produced by the forest], according to testimony, forms the base of the food chain and is relied upon by many aquatic organisms. Though shrimp are the first to profit from this bounty man is the ultimate beneficiary.^[118]

The court found that the continuation of these natural functions was essential to the biological health of the adjacent tidal slough and bay.

In the Avoyelles case, no restoration was ordered because the defendants had cleared some wetland areas in good faith reliance on an initial determination by the CE that the land was not wetland.^[119]

The Avoyelles opinions are probably the most significant decisions insofar as protection of riparian forests are concerned, because the court clearly recognized that transition zones between inundated areas and uplands may come within the Section 404 definition of wetlands. However, the last chapter of Avoyelles has not been written. The determination that clearing activities were subject to Section 404 was appealed to the Fifth Circuit in 1979, but review of the case was held up pending a decision on the wetlands issue. Thus, both issues are, at the time of this writing, before the Court of Appeals.

The Future of Section 404

Some Problems That Must Be Resolved

In 1980, Senator Tower and Representative Paul of Texas introduced legislation which would limit CE jurisdiction under Section 404 and Section 10 to traditionally navigable waters. The bill was similar to the Wright Amendment considered by Congress in 1976 and 1977.^[120] The bills failed to be heard in their respective public works committees. In 1981 Senator Tower and Representative Hall of Texas again introduced legislation restricting 404 jurisdiction.^[121] The legislation is closer to the Breaux amendment of 1966^[69] in that it limits jurisdiction strictly to traditionally navigable waters. Adjacent wetlands would not be protected. If either of these bills or similar proposals were to become law, the scope of federal protection of wetlands outlined in this paper would be lost. The opponents of Section 404 have exploited two major federal-state issues in their efforts to thwart jurisdiction. These are the issues of state water rights and state assumption of Section 404 jurisdiction.

State Water Rights and Minimum Streamflow Requirements

The relationship between Section 404 and state water rights permit systems is important

[112] Ibid ., at 283–4.

[113] Ibid ., at 290.

[114] Ibid ., at 291.

[115] Ibid ., at 289.

[116] 33 C.F.R. Sec. 326.4.

[117] See, e.g., United States v. Fleming Plantations ;^[104]Parkview Corp . v. Corps of Engineers , 490 F. Supp. 1278 (E.D.Wis. 1980); United States v. Holland .^[43]

[118] 489 F. Supp. at 1346.

[119] See 473 F. Supp. at 536–537.

[120] The bills were numbered S. 2970 and H.R. 7245, respectively (96th Congress, 2d Session 1980).

[121] S. 777 and H.R. 3083 (97th Congress, 1st Session 1981).

and often controversial. A major undecided issue is the extent to which the CE can condition a Section 404 permit to construct diversion works on maintaining minimum streamflows. The 1977 amendments to the Clean Water Act included Section 101(g), which reads:

(g) It is the policy of Congress that the authority of each state to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any state. Federal agencies shall cooperate with state and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.^[122]

This section would appear to prohibit conditioning Section 404 permits where conflicts with state water rights allocations would result. However, the legislative history indicates that this section is only declaratory of existing law and not intended to prohibit Section 404 or 402 permit conditions that may incidentally affect water rights.^[123]

The CE has taken the position that Section 101(g) does not prohibit conditioning or denying a Section 404 permit where necessary to protect the national interest. Rather, it is interpreted to be consistent with Senator Wallop's statement as prohibiting unnecessary interference with state water rights entitlements.^[124] Actually, the CE rarely imposes conditions such as minimum streamflows on its own motion. Rather, it responds to comments received during its public interest review and attempts to meet the concerns of commenting agencies, particularly the USDI Fish and Widlife Service and state fish and game agencies.^[125]

The scope of the CE authority to condition permits in a way that interferes with state water rights entitlements is argued in a case pending at the time of this writing before the Tenth Circuit Court of Appeal. In Riverside Irr . Dist . v. Stipo ,^[126] two local water districts have argued that the CE cannot regulate operation of a dam because their jurisdiction extends only to construction activities, and because regulation of operation would interfere with water rights granted under state law. The public agencies were informed that an individual permit was required for a dam and reservoir project in Morgan County, Colorado, because the project could have a significant impact on Whooping Crane habitat 402 km. (250 mi.) downstream. Rather than apply for the permit, the plaintiffs brought suit for declaratory, injunctive, and mandatory relief. The district court dismissed all claims, and the districts appealed. They argue that the CE cannot abrogate allocations of water made in an interstate compact and granted pursuant to state law. They also argue that the CE decision that an indiviual permit is required violates Section 101(g).^[126]

Federal compliance with state substantive water law requirements has been a major issue with the western states, particularly since the United States Supreme Court decided California v. United States^[127] and United States v. New Mexico .^[128] They interpret these decisions to mean that the United States must comply with state substantive law, except where a federal reserved water right, the federal navigation servitude, or clear congressional directives to the contrary are involved. Many states see Section 404 permit conditions as a violation of this principle, particularly where a permit requires minimum flows.

The conflict between state water rights and Section 404 has not been lost on supporters of the Tower bill^[120] , who have urged substantial reduction of Section 404 jurisdiction as a means of dealing with the water rights problem. At recent meetings of the National Governors' Association (NGA) and the Interstate Council on Water Problems (ICWP), efforts to obtain resolutions specifically endorsing the Tower bill were defeated. The majority of NGA and ICWP members (including California and Florida) voted instead for a position which supports retention of broad Section 404 jurisdiction. However, the positions adopted by both organizations state that Section 404 should be amended so that a permit cannot be denied or conditioned in derogation of state water allocation decisions.^[129] While this position does not urge Congress to restrict the scope

[122] 33 U.S.C. Sec. 1251.

[123] Senator Wallop, the sponsor of the Conference Report, stated that Section 101(g) was "not intended to change present law" and that "the requirements of Section 402 and 404 permits may incidentally affect individual water rights . . . It is not the purpose of this amendment to prohibit those incidental effects" (3 Legislative History).

[124] Letter from Major General Charles McGinnis to Brigadier General Richard Wells, April 6, 1979. The CE regulations provide that, where a state has approved a proposed project, a Section 404 permit will be denied only where there are "overriding national factors of the public interest that necessitate denial." 33 C.F.R. Sec. 320.4(i)(4).

[125] The Fish and Wildlife Coordination Act requires the CE to consult with federal and state wildlife agencies and identify mitigation measures to be adopted. 16 U.S.C. Sec. 662.

[126] Nos. 80-2142, 2141 and 2142 (10th Cir.). See E.L.R. Pending Litigation at 65682-3.

[127] 438 U.S. 645 (1978).

[128] 438 U.S. 696 (1978).

[129] See The Clean Water Act, National Governors' Association, policy position adopted August 1981.

of Section 404, introduction of any amendments to the Clean Water Act offers an opportunity for the supporters of the Tower Bill, as the 1976–77 legislative maneuvers have shown.

One way to reduce the controversy over water rights would be administrative interpretation of Section 101(g) by the CE in regulations. While the CE regulations give deference to state approvals of a project, there are no specific standards interpreting Section 101(g). Adopting such standards could provide clear guidelines and procedures for resolving potential conflicts over water rights with no or minimal disturbance to the basic water right. In general, the policies should defer to state water rights law, except where such deference would clearly frustrate the purposes of the Clean Water Act, namely (for Section 404) the protection of wetlands from unavoidable loss or damage. Furthermore, the procedures could require that a decision affecting water rights should be made at a higher level than the District Engineer, and after an oppportunity for the affected state water rights agency to present its views. While such an approach would limit the ability of Section 404 to require minimum streamflows, particularly at existing facilities, hard choices need to be made. Section 404, as interpreted by the courts, has been demonstrated effective in protecting wetlands. To the degree that Section 404 is expanded into a minimum streamflow law, its chance of being curtailed increases. Such limitation would, of course, include curtailing the protection of wetlands under Section 404.

State Assumption of Section 404 Jurisdiction

Although most provisions of Section 404 have worked well, an exception occurs in Section 404(g)(1), providing for state assumption of Section 404 jurisdiction of all except traditionally navigable waters, have not worked. While the 1977 Conference Report stated that the assumption provisions in Section 404 would minimize federal-state conflicts,^[130] no state has taken over a Section 404 permit program. This is probably due to several factors. The procedures for state assumption are very complicated, and the act provides a mechanism for an EPA veto of a proposed state permit.^[131] A state could not assume jurisdiction over traditionally navigable waters and adjacent wetlands, so most states (especially coastal states) would have jurisdiction over only a portion of the activities that may affect the state's wetlands. While Section 404 provides for state assumption, no source of funding is available for setting up and operating a state program. Finally, in most coastal states the CE is already operating a permit program effectively, and there is little incentive to take the program over at additional cost to the state.

Many multi-state organizations have adopted positions urging that Section 404 be amended to provide for simiplified assumption of Section 404 jurisdiction. For example, the NGA position asks Congress to amend Section 404 to permit the CE (instead of the EPA) to approve a state proposal. Once assumed, federal agencies could comment on a proposed permit, but could not veto it.^[132]

It is likely that legislative proposals will be introduced to modify the existing procedures for state assumption. Unlike the water rights issue, there is little the CE can do about the assumption issue.

Conclusion

The title of this paper asks, somewhat rhetorically, whether there is a national interest in wetlands. There clearly is one, as recognized by almost every court that has construed Section 404. However, while Section 404 has evolved into a major national regulatory program to protect wetlands, it remains a captive of its past history.

Section 404 is the fortuitous product of its inclusion in the FWPCA, the initial reluctance of the CE to administer the program, and a citizens' suit that precipitated expansion of the program to the full extent of FWPCA jurisdiction. In some respects, the fact that Section 404 is the product of this interaction makes it more vulnerable to change today, notwithstanding the 1977 amendments which confirmed its scope.

The various forces that brought Section 404 to its present point continue to interact. Those who oppose federal regulation of local activities in wetlands are still seeking an amendment like the original Breaux amendment. Environmental organizations and fish and wildlife agencies continue to seek strict enforcement of its requirements. Some states, buoyed by stirrings of new federalism, see Section 404 as an unwarranted invasion on state sovereignty. Now the CE itself is suggesting legislative modifications. In a speech in San Francisco in August 1981, Assistant Secretary of the Army for Civil Works, William Gianelli, told the American Society of Civil Engineers that Section 404 has "gone far beyond its originally envisioned scope, and more importantly beyond the appropriate role of the federal government in regulating the development of public and private resources involving our nation's water and wetlands."^[133] Gianelli indicated that he

[130] See 3 Legislative History.

[131] Sec. 404(j), 33 U.S.C. Sec. 1342(j).

[132] The Western States Water Council has also taken a similar position. See "Position Statement of the Western States Water Council Concerning Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899," (January 15, 1981). California did not vote for the WSWC position.

[133] Water Information News Service 6(9) (August 21, 1981):1–3.

would like to see wetlands legislatively defined and designated "rather than to try the piecemeal, back-door approach applicable to the land fill areas under CE programs."^[133] So the old arguments continue with the CE entering the fray.

How Section 404 will survive in the current anti-regulatory atmosphere of the Reagan administration is far from clear. Section 404 became what it is largely because of a citizens' suit in 1975. Several other major judicial interpretations of Section 404 (e.g., the Avoyelles case) are also due to citizen involvement. While the policy and purpose of Section 404 is perfectly clear to courts enforcing the act, that policy is less clear in the political arena. The survival of Section 404 may depend to a large extent on continued public involvement in identifying preservation of wetlands as a national priority.

Literature Cited

Barker. 1976. Sections 9 and 10 of the Rivers and Harbors Act of 1899: Potent tools for environmental protection. 109 p. 6 Ecology L.Q.

Blumm. 1980. The Clean Water Act's Section 404 program enters its adolescence: an institutional and programmatic perspective. Ecology L.Q. 8:419–436.

Caplin. 1977. Is Congress protecting our water? The controversy over Section 404, Federal Water Pollution Control Act Amendments of 1972. 445 p. U. Miami L. Rev.

Karhl, W. (ed.). 1977. The California water atlas. Prepared by the Office of Planning and Research. 117 p. California Department of Water Resources, Sacramento.

Myhrum. 1979. Federal protection of wetlands through legal process. 567 p. 7 Boston College Env. Affrs. Rev.

Shipley. 1974. The Fish and Wildlife Coordination Act's application to wetlands. p. 2–49 to 2–59. In : Reitze. Environmental planning: law of land and resources.

The Clean Water Acts and the Principles of the Public Trust Doctrine

A Discussion^[1]

Felix E. Smith^[2]

Abstract.—Congress passed PL 92-500 and PL 95-217, referred to as the Clean Water Acts. These acts provide for restoration and maintenance of the chemical, physical, and biological integrity of the nation's waters. The acts also enable states, upon meeting certain criteria, to assume the authority to regulate dredge and fill activities and discharges into non-traditional navigable waters and wetlands. The development of aggressive state programs would give the states an opportunity to affirm their stewardship responsibilities for the management of water, streams, wetlands, and associated resources consistent with the Public Trust.

Introduction

The nation's rivers and streams, from their headwater springs and adjacent wetlands to their receiving waters (estuaries or the oceans) are one of our most valuable natural resources and are held in trust. These unique resources are part of our natural heritage. Much of our water for agriculture, industrial purposes, drinking, and other domestic use comes from these waterways. Watercourses, from major rivers to small streams, are habitats for salmon, steelhead, trout, black bass, catfish, and numerous other fishes. Aquatic and riparian wetlands with their respective vegetations are habitats for numerous waterfowl species and other migratory and resident species of wildlife.

These rivers, streams, and wetlands also provide recreational, scenic, and aesthetic enjoyment; are natural drainage and floodway systems; are used to generate electricity; are conduits for supply of groundwater recharge; are transportation corridors for goods and services; and are of historic and scientific value. However, we have not managed these waters and lands with sufficient care to allow them to provide continuing and long-term values to society, either as functioning ecosystems or as a resource. Rivers were dammed and their waters diverted; wetlands were drained or otherwise reclaimed; streams were channelized, stripped of their riparian vegetation, mined of their gravels, and otherwise modified. Sediments and pollutants entered what remained of these same streams, further reducing their capacity to support valuable fish and wildlife resources, or to provide for the restorative needs of our minds and bodies.

Historical Background

Over the years laws were passed which emphasized the need for stewardship of our waters, waterways, and adjacent wetlands. The Rivers and Harbors Act of 1899 was designed to regulate activities which could obstruct the navigability of the nation's waterways. All activities were prohibited unless permitted by the US Army Corps of Engineers (CE). Regulated activities included the placement of fills; construction of such structures as bridges, piers, docks, levees, etc.; and deposition of industrial or urban waste, oils, pollutants, or refuse of any kind. However, this act was administered as a development act, not as a conservation act (Morris 1978). The nation was rushing to become an industrialized power. Industries needed water, so rivers were dammed. Wetlands, bays, and rivers were convenient places to dump waste or to place fill. In this rush, little meaningful thought was given to conserving natural resources, including the water in lakes, rivers, and estuaries. There was little, if any, balance in the administration of the Rivers and Harbors Act and little real effort to protect the quality of the nation's waters or the resources in those waters, both of which are held in trust and belong or are "common" to the people.

Freedom to develop or use lakes, rivers, streams and wetlands—which can be considered "commons" or property belonging to the people—and the administration of the Rivers and Harbors

[1] Paper presented at the California Riparian Systems Conference. [University of California, Davis, September 17–19, 1981.]

[2] Felix E. Smith is Senior Staff Specialist, USDI Fish and Wildlife Service, Sacramento, Calif.

Act of 1899, parallel the "tragedy of the commons" described by Garrett Hardin (1968). Hardin illustrates the tragedy of the commons by describing a pasture open to use by a number of herdsmen. Each herdsman seeks to maximize his own gain and does so by trying to raise as many cattle as possible on public commons, i.e., the pasture. A question faced by each herdsman is: what is the utility to me of increasing my herd by one animal? Since each herdsman receives all the proceeds from the sale of each animal, the positive component of this utility is nearly equal to the value of one animal. The negative component of this utility is a function of the additional overgrazing of the commons due to the additional animal. The effects of overgrazing, however, are distributed among all the herdsmen, and thus the negative component of the utility for the single herdsman is considerably less than the positive component. Because the net utility to the individual is positive, the practical herdsmen will conclude that the rational decision for him is to add the additional animal. Each herdsman sharing the public pasture reaches the same conclusion.

Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in the commons brings ruin to all . . . the individual benefits as an individual . . . even though society as a whole, of which he is a part, suffers. (ibid .)

A "common resource" or "common pool resource" as described by Baden (1977) is a resource for which there are multiple owners (or where a number of people have rights to use the resource) and where one or a set of users can have adverse effects upon the interests of other users. In the situation where there is no agency with the power to coordinate, restrict, or ration use, or an agency so empowered fails to do so, actions which are individually rational can be collectively disastrous. This is the central point of the tragedy of the commons.

The tragedy of the commons can be identified in the administration of past and present permit systems regulating the use of water, waterways, their shorelines, and associated resources. This is comparable to a society allowing the exploitation or use of the common resources, the resources held in trust—". . . the air, running water and the sea and hence the shores of the sea" (Althaus 1978), without guidance or regulation. The developer or user profits, with the costs in lost public resources and opportunities assessed against present and future generations, as a social cost of such development or use. A society without the knowledge or awareness to formulate and implement controls or restrictions on the use or exploitation of the commons will destroy the commons, and itself as well (Hardin 1968; Hickle 1971).

By the 1950s and 1960s, people were aware of the adverse impacts that unregulated, as well as regulated, activities and uses were having on the nation's waters. The adverse impacts were widespread and of increasing concern to the public. Drainage had destroyed a considerable portion of the nation's wetlands. Filling of estuaries and lakes was occuring at an alarming and ever-accelerating rate. Dams and diversions had altered many streams and even dried some of the nation's rivers, destroying them as functioning ecosystems. Some were degraded to the point that they no longer supported significant fish and wildlife resources of previous regional, national or international importance, or significant public use or contact. In addition, evidence of water pollution, as well as land pollution, was now widespread. Few if any of the nation's waters were spared the impacts of water diversion, sedimentation, or pollution.

Congressional Action and Its Implementation

Public concern alerted the Congress to what was happening to the nation's waters and wetlands. The Congress requested documentation. The National Estuarine Pollution Study (U.S. Department of Interior 1969) and National Estuary Study (U.S. Department of Interior 1970) were prepared. These reports alerted the Congress to what was really happening to the nation's waters and waterways and the resources in and industries dependent upon those waters and their associated resources. The future was not bright if the statusquo of laws and their enforcement was maintained. In addition, it was being realized with much chagrin that restoring quality to a damaged environment was far more costly than retaining the quality of the original environment. This applied particularly to efforts to restore fish and wildlife resources and the integrity of their habitats.^[3]

While the evidence was being gathered and reports prepared, Congress passed the Wild and Scenic Rivers Act^[4] in 1968. In this act's declaration of policy, Congress stated that the established national policy of permitting dams and other construction at appropriate sections of the rivers of the United States needed to be complemented by a policy of preserving other selected rivers or sections thereof in their freeflowing condition. The goals of the latter policy were to protect the water quality of such rivers and to permit them to fulfill other vital conservation purposes for the benefit of present and future generations.

[3] Ketchum. 1969. Panel on ecology and the environment, National Water Commission.

[4] PL 90-542.

In response to the evidence and the national concern to protect the quality and resources of the nation's waters, Congress passed the Federal Water Pollution Control Act Amendments of 1972^[5] and the Clean Water Act of 1977.^[6] Congress recognized its stewardship responsibilities for restoring and maintaining the integrity of the nation's waters in a declaration of goals and policy:

1) It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985;
2) It is the national goal that wherever attainable an interim goal of water quality which provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the waters be achieved by July 1, 1983;
3) It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;
4) It is the national policy that Federal financial assistance be provided to construct publicly owned waste treatment works;
5) It is the national policy that area-wide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State and;
6) It is the national policy that a major research and demonstration effort be made to develop technology necessary to eliminate the discharge of pollutants into the navigable waters, waters of the contiguous zone and the ocean.^[7]

These activities would be accomplished in cooperation with all the states.^[8]

Congress recognized its stewardship responsibilities and left no doubt in anyone's mind about its concern for the chemical, biological and physical integrity of all the nation's waters, including streams and groundwater aquifers. It made it clear that due regard shall be given to improvements necessary to conserve such waters for: a) the protection and propagation of fish, shellfish and other aquatic life and wildlife; b) recreational purposes; and c) the withdrawal of these waters for public water supply, agricultural, industrial and other purposes. Congress clearly recognized that protecting the integrity of water as a resource and an ecosystem was a national concern and in the long-term public interest.

The goals stated and policy language used are definitely those of a "trustee"; a nation concerned with stewardship and management of its waters, wetlands, and associated resources and environmental needs.

With passage of the Federal Water Pollution Control Act amendments, Congress created new permit programs, outlined in Section 402, the National Pollutant Discharge Elimination System (NPDES), and Section 404 to control the many activities and impacts associated with dredging and placing fill. The permit programs were formulated by the Environmental Protection Agency (EPA) and the CE. The discharge of any pollutant is regulated by the NPDES (Section 402) permit, which basically replaced Section 10 of the Rivers and Harbors Act of 1899. In California this program has been delegated to and administered by the State Water Resources Control Board (SWRCB) and the Regional Water Quality Control Boards (RWQCB). The intent of the program was to reduce the amount of toxic material and other waste entering lakes, rivers, or coastal waters. It was by then realized that reliance on "dilution as the solution" to rendering innocuous all our wastes was, for our society, no longer possible.

The CE proceeded to administer the Section 404 program in traditional navigable waters, as it had the permit program under Section 10 of the Rivers and Harbors Act of 1899. In consequence, the Natural Resources Defense Council filed suit against the CE alleging that the CE definition of the nation's waters was too restrictive and not within the meaning of the Clean Water Act. The court, in Natural Resources Defense Council , Inc . v. Callaway^[9] ordered the CE to include virtually all the nation's waters under Section 404. With the court's ruling and implementation of new permit regulations and penalties for violations came the needed police powers to protect and preserve wetlands and the beds and bottoms of streams and lakes. These latter are as important to the health and integrity of aquatic environments as the quality of the water itself.

The basic philosophy and intent of the laws and regulations concerning the nation's waterways and associated ecosystems are clear. They are to protect the public interest from harm or degradation; to foster stewardship in resources management; and to protect resources from being degraded or destroyed, while providing for uses consistent with sound policies of stewardship and public use. There is, for example, a theoretical prohibition against all degradations or encroachments into, across, or upon all waters of the United States under both the Rivers and Harbors Act of 1899 and the Clean Water Act. The Section 10 permit system was established to provide a variance to this prohibition so that works or activities supposedly consistent with aiding navigation; aiding, fostering or protecting fishery or ecosystem functions; or assisting or

[5] PL 92-500.

[6] PL 95-217.

[7] PL 92-500; 86 Stat. 816, codified at 33 U.S.C. 1251 (a).

[8] 33 U.S.C. 1251 (b).

[9] 392 F. Supp. 685 (1975).

providing for the movement of commerce (i.e., goods or services); and in the public interest, could be constructed and operated.

The Rivers and Harbors Act prohibits unreasonable obstruction or use of the nation's waters. Some idea of just what the term unreasonable encompasses can be found in a statement made by then-Assistant Secretary of the Interior Stanley Cain, testifying in a hearing before Brigadier General Ray T. Dodge (CE) regarding a fill and intake proposal of Bethlehem Steel Corporation in Lake Michigan:

Section 10 and the related provisions of the Rivers and Harbors Act of 1899 embrace affirmatively and positively the proposition that the people of the United States are to be protected against all unreasonable occupancies of navigable waters of the United States. Those occupancies may be unreasonable because they pollute, or because they offend our sense of aesthetics or natural beauty, or because they interface with the right of the public to enjoy a natural resource of national significance, or because they threaten in a harmful way to upset the ecological balance of nature, or simply—if you please—because to permit the occupancy would confer a valuable privilege without either necessity therefore or a fair return to the public in whose name the privilege would be bestowed. Stating the matter somewhat differently, it is the applicant who must establish that the public interest will be served by bestowing this privilege.^[10]

This testimony of about 15 years ago provides practical guidelines for managing the nation's waters, associated lands, and their ecological components, whether under the Rivers and Harbors Act of 1899 or the present Clean Water Act.

A CE permit is issued when works or activities are deemed consistent with the public interest. When a permit is issued, the general public's right to utilize the permit area, its resources, or other benefits are restricted, altered, or withdrawn for the benefit of the permit holder. In essence, public rights and interests are subordinated when permits are issued allowing placement of fill in a lake, river, or estuary; construction of a restaurant, homesite, wharf, pier, or bulkhead; construction of a dam on a river to generate electrical energy; impoundment or diversion of water; or riprapping or channelizing of a stream. As a result, permits confer an extremely valuable privilege or concession to the permit recipient, allowing the recipient to develop or utilize one or more aspects of public property or a public resource, all too frequently, for the personal use or gain of the permit holder or a few individuals at the most.

Implications of the Public Trust Doctrine

Sax (1970) indicated that the Public Trust Doctrine, of all the concepts in American law, seems to have the breadth and substantive content to make it a useful tool for general application in developing a comprehensive legal approach to resource management problems. Others such as Cohen (1970), Dunning (1980), Johnson (1980), Stevens (1980), and Wilkinson (1980) are also very supportive of the Public Trust Doctrine and its principles in the management of natural resources. The Clean Water Act provides federal and state governments with opportunities to affirm the principle of stewardship and to become trustees in the administration of water resources for the benefit of present and future generations.

Public Trust Doctrine concepts have persisted in European, English, and American law throughout history. Their roots trace back to Roman times. The Institutes of Justinian in the sixth century stated: ". . . by the law of nature these things are common to mankind—the air, running water, the sea and consequently the shores of the sea." This was also considered the "law of nations." The Justinian complications were a restatement of a law which was already considered ancient at the time (Althaus 1978). The reference to ". . . things . . . common to mankind . . ." implies that such things were common property, that is public property, held in trust for all the people and for future generations. This definition is similar to the common pasture described in "Tragedy of the Commons" (Hardin 1968) and the common pool reources of Baden (1977).

The Pubic Trust Doctrine generally imposes upon the states a trust obligation for publicly owned resources on behalf of all the people. For example, under the trust principles, resources or objects in which the public has a special interest are held, subject to the duty of the states not to impair the resources, even if private interests are also held. In a traditional sense, the Public Trust Doctrine imposes a trust in favor of public rights and uses of navigable waters, publicly owned bottoms or beds of such waters, including submerged land and submersible tidelands, shorelands, and stream channels, and fish and wildlife resources. The doctrine has been interpreted by some states to apply to waters over privately held beds when the waters are considered navigable under state motor boat or pleasure craft tests. Public rights are considered superior to private rights. The trust is generally considered inalienable. If title is conveyed to private use, the property is still subject to the trust and paramount state interests (Althaus 1978; Stevens 1980).

[10] Letter of Frank J. Berry, U.S. Department of the Interior, Office of the Solicitor, to Henry Wright, Oil and Gas Association. 8 December 1966.

Over the years courts have broadened the scope of the Public Trust Doctrine to meet contemporary situations and changing public needs. The California Supreme Court in Marks v. Whitney^[10] helped redefine the scope of the state's interest in navigable waters and tidelands. It recognized and clarified the uses encompassed within the tidelands trust. It held that in addition to the traditional purposes of navigation, fishery, and commerce, the trust also includes the preservation of those lands in their natural state for their value as open space and as environments which provide food and habitat for birds and marine life and which favorably affect the scenery and climate of the area. The court recognized that tidelands, with their plant and animal life, water over and in the sand, and gravel or mud substrate all interacting, are a valuable ecosystem having high attendant values and uses.

There is no doubt that there is great public interest in the water, instream flows, stream channels, riparian vegetation, and the fish and wildlife resources associated with water, stream, and wetland ecosystems. Research findings from agriculture, forestry, and hydrology indicate that riparian and near-stream vegetation can: a) reduce temperature-associated water quality problems; b) reduce undesirable nutrient and sediment transport from the upland to the aquatic ecosystem; and c) reduce bank erosion. In addition, maintaining a more natural riparian vegetation and channel morphology results in a more productive, diverse, and stable stream biota, which includes fish and wildlife resources (Karr and Schlosser 1978).

The broadened public trust definition and the knowledge and concern for tidelands ecosystems expressed in Marks v. Whitney could easily be applied to a stream, including the streambed with its water-, sand-, and gravel-associated vegetation and aquatic life. Thus, for the state to exercise the maximum public trust responsibilities for its rivers, streams and wetlands (and their associated fish and wildlife), state management jurisdiction should include the water in a stream to at least the headwater springs and the streambed to at least the ordinary within-bank or bankful high water mark. Similar conditions now apply to lakes (in California v. Superior Court [Lyon]^[11] and California v. Superior Court [Fogerty]^[12] ). In California both water and the fish in the water are public resources held in trust by the state in its sovereign capacity (Robie 1974, Schneider 1978). In addition, for protection of the stream ecosystem, state jurisdiction should include the riparian vegetation corridor adjacent to the stream as well as the stream channel itself.

In 1892, the close of the nineteenth century and some thirteen centuries after the Institute of Justinian, the United States Supreme Court decided the leading American public trust case. In Illinois Central Railroad Company v. Illinois^[13] , the court held that state ownership of lands under the waters of Lake Michigan could not be surrendered or delegated except for public purposes:

It is a title held in trust for the people of the State that they may enjoy the navigation of the water, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties—The Trust devolving upon State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining.

The Court further stated:

A grant of all the lands under the navigable waters of a State has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The State can no more abdicate its trust over property in which the whole people are interested , like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of peace . In the administration of government, the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the State the right to revoke those powers and exercise them in a more direct manner, and one more comfortable to its wishes. So with trusts connected with public property , or property of a special character , like lands under navigable waters ; they cannot be placed entirely beyond the direction and control of the State . (emphasis added)

[10] 6 Cal. Report 790, 491 P. 2d 374 (C197 ).

[11] 29 Cal. 3d 210 (1981).

[12] 29 Cal. 3d 240 (1981).

[13] 146 U.S. 387, 36 Led 1018 (1892).

The Court recognized that it is the public ownership of the water over the bed of Lake Michigan that gave the lakebed special character. The beds and bottoms of all lakes, streams, and rivers are also special in character relative to the chemical and biological integrity of the nation's waters.

The Oregon Supreme Court in Morse v. Oregon Division of State Lands^[14] recognized the special character of the waters and bottom of Coos Bay. Regarding a permit to fill 13 ha. (32 ac.) of Coos Bay for an airport runway, which it found to be inconsistent with the public trust, it wrote:

Because the trust is for the public benefit, the State's trustee obligation is commonly described as the protection of specified public usages, e.g., navigation, fishery and, in more recent cases, recreation. The severe restriction upon the power of the State as trustee to modify water resources is predicated not only upon the importance of the public use of such waters and lands but upon the exhaustible and irreplaceable nature of the resources and its fundamental importance to our society and to our environment . These resources, after all, can only be spent once. Therefore, the law has historically and consistently recognized that rivers and estuaries once destroyed or diminished may never be restored to the public and, accordingly, has required the highest degree of protection from the public trustee. (emphasis added)

Not only was the navigation servitude of Coos Bay involved, but the integrity of the physical aspects and biological components of an estuary and tributary rivers were at stake.

The statement by the Oregon Court is a clear indication that it realizes the ecosystem nature of Coos Bay waters and their resources, uses, and values to society. It also seems clearly understood by the Court that rivers are an integral system from their headwaters to their estuary, and, once destroyed or greatly diminished in a physical and ecological sense may never be restored. As such they deserve the highest degree of protection from the state as public trustee.

It must be remembered that in many instances governmental agencies, the trustees of public resources and interests, are the ones primarily responsible for excessive degradation of the physical, chemical, and biological components of the nation's waters and associated resources. By issuing permits for road construction, tideland fillings, discharges into public waters, spoil disposal, dam construction, factory or industrial park construction, riprapping, and stream channelization, and myriad seemingly minor land/water interface intrusions (e.g. bulkheads, piers, and docks), all too often in the name of progress and necessity, public trust values are progressively and irrevocably lost.

While each individual action seems rational, evidence indicates the collective result of these actions can be disastrous. This is the central point of the tragedy of the commons. In addition, the impact of the fill or project construction, made possible by the issuance of the permit, lasts into perpetuity. The permit results in the loss forever of a piece of tideland, marshland, stream reach, or shoreline with its associated resources, public uses, and economic and non-economic values.

The Clean Water Act, the Rivers and Harbors Act of 1899, the Fish and Wildlife Coordination Act of March 10, 1934, as amended, the Fish and Wildlife Act of 1956, and, of course, the National Environmental Policy Act should be read with the principles and obligations of the Public Trust Doctrine in mind. In these legislative acts, Congress fully intended to protect, preserve, and manage resources of great national wealth, such as fish and wildlife resources, water, and aquatic ecosystems, for the well-being of its people, in a manner similar to that of a trustee, not as a proprietor.

The Clean Water Act rests in the middle between the preservation and protection provided by the Wild and Scenic Rivers Act and the development/exploitation made possible in a multitude of acts for constructing dams, dredging waterways, channelizing streams, draining wetlands, or otherwise modifying the nation's wetlands, streams, rivers, and waterways. The Clean Water Act provides federal and state governments an opportunity to affirm their stewardship responsibilities and support the principles of the Public Trust Doctrine in the administration and management of water and related resources, for the benefit of the present and future generations to whom these resources belong. For example, in California the State has the obligation to protect and promote the public trust and public uses of its waters, the beds of such waters, and adjacent lands, as an ecosystem consistent with, but not limited to, navigation, fisheries, recreation, fish and wildlife, water quality and quantity, and aquatic ecosystem maintenance and renewability.

The obligation on the state, as trustee, should be to protect and promote these water-related resources as property held in trust. This is based not only upon the importance to the public of such waters, but upon the exhaustible and irreplaceable nature of these complex ecosystems and their associated resources, and their fundamental importance to our society and our total environment. The implementation of an aggressive state/federal Section 10/404 program is a logical step in restoring and maintaining the chemical, physical and biological integrity of the nation's waters.

[14] 285 Or. 197, 590 P. 2d 709. Affirmed 34 Or. App. 853 P. 2d 520.

Under a program built on Public Trust principles, public resources and associated interests would be treated as property to be maintained and protected for the benefit of present and future generations. They would be subject to infringement only: a) when it could be demonstrated that some other need is paramount (i.e., public health and safety); b) when the activity could be carried out in a manner consistent with the public trust, with minimum unavoidable harm; and c) when it can be shown that harmful effects would be offset to the greatest degree reasonably possible.

In the Section 10/404 program, it is the protection of public health, public uses, and the vitality and renewability of aquatic and related land ecosystems and associated resources that is at stake. The public trust responsibility must be given priority when considering the demands of other users with respect to other available alternatives, existing and potential technology, and the possibility of less harmful methods or locations of the development or activity.

The state, as trustee, and the permitting and reviewing agencies, as an integral part of their stewardship responsibilities, should stress the following during review of Section 10/404 permit applications.

1. Does the proposed activity conflict or interface with the paramount policy of state and federal agencies to protect, preserve, and promote the uses of its water, waterways, and adjacent lands, as biological and/or ecological resources, for fish, fishing, wildlife, navigation, and numerous recreational activities?

2. Is the proposed activity consistent with resource conservation policies?

3. Does the proposed activity interface with or endanger public use, health, or safety in the area?

4. Could significant external costs be incurred by an entity other than the project sponsor as a result of the proposed activity?

5. Is the proposed activity consistent with any existing comprehensive plan for the use of the waters of the basin, sub-basin, or planning area?

6. How will public resources and uses be protected from any adverse effects of the proposed activity?

7. Has the applicant adequately described how the proposed use of public land and/or water is in the overall public interest and how the proposed activity adequately provides for the protection of public uses and resources affected by the proposed activity?

8. Could the cumulative impacts of similar activities lead to the degradation of the resources held in stewardship by the Public Trust Doctrine?

9. Are public uses, resources, and opportunities being protected and promoted in a manner consistent with the public trust?

10. Are the mitigation and compensation measures feasible and capable of accomplishing the desired results?

11. Have practical alternatives to the proposed activity been considered and the least damaging alternative selected for permit processing?

If the state, acting as trustee, is lacking in understanding of the resources and ecosystems protected by the Public Trust Doctrine, it cannot possibly be a responsible steward.

For projects which the permitting agencies find acceptable, the formulation of permit terms and conditions should include measures to prevent or minimize adverse impacts to the values, functions, resources, and opportunities of the area. Where adverse impacts are unavoidable, resource compensation or mitigation measures should be required as an integral part of the proposed activity. These measures, needed to protect one resource, should not be developed at the expense of another. We have been forcibly reminded from our past experience of trying to clean up or protect our environment, of having to pick up after past resource management decisions that it is the consumer who eventually pays the bill. Society might as well include the cost of protecting, repairing, or restoring the environment in the price of today's project, rather than deferring it to future generations. Their environmental and resource protection costs will be high enough without having to shoulder today's costs as well.

The concept of the public trust puts the cost of protecting and stewarding resources such as those under the Clean Water Act on a pay-as-you-go basis. The costs for protecting the public interest in such resources should be included as a cost of doing business, just as the rent and electric bill, and workers wages are included in the cost of producing goods and services.

The states, in partnership with the federal government, should develop a conservation program for the nation's waters and wetlands which is consistent with trustee obligations and responsibilities of the states. The overall intent of an aggressive commenting, reporting, and monitoring program is to protect the public and its interests from ruin or degradation, to permit reasonable resource uses consistent with sound management practices, and to prevent or severely restrict uses or practices harmful to the land, water, or the beds or bottoms of such waters. The beneficiaries of this vigilance will be future generations of Americans.

The reduction or relaxation of enforcement of public trust responsibilities and obligations in any section of the Clean Water Act (e.g., 208, 402, or 404, or Section 10 of the Rivers and Harbors Act) could lead to the degradation or loss of part or all of the chemical, physical or biological components necessary for the integrity of the nation's waters or wetlands. To protect resources or ecosystems under one rule or law only to lose them because of another is pure folly in the administration and management of the nation's waters.

Conclusions

In managing the nation's waters, wetlands and associated resources, it is clear that society must not make or perpetuate the mistakes of the past. We no longer have the margin for errors that we once had. The concepts of the Public Trust Doctrine provide a tool for the management of natural resources by the state, for all the people. However, does the absence of broad public support for the public trust in natural resources management and in efforts to protect the public equity account for our seeming failure to protect such resources from loss or degradation?

Does the lack of public awareness that lakes, rivers, streams, wetlands, and fish and wildlife are resources held in trust account for what has happened to these resources as administered under past laws and regulations designed to protect them? Can we expect future generations to believe that we could not find alternatives to the continued degradation of our environment nor the funds to correct past mistakes and restore the physical, chemical and biological integrity of the nation's waters?

The future of the Public Trust Doctrine as a tool to protect the quality of water in streams, the ecological integrity of those streams, the beds of lakes and streams, and the riparian vegetation associated with them will be dependent upon the creativity and assertiveness with which it is applied. The states must recognize and aggressively meet their trust obligations and the needs of future generations to whom, in the final analysis, the waters and associated resources belong. The states in partnership with the federal government can do this through an aggressive action program of evaluation and monitoring, developed under provisions of the Clean Water Act and consistent with the principles of the Public Trust Doctrine.

Literature Cited

Althaus, H.F. 1978. Public trust rights. 421 p. U.S. Department of Interior, Office of the Solicitor under contract for the USDI Fish and Wildlife Service, Portland, Ore.

Baden, J. 1977. A primer for the management of common pool resources. In : G. Hardin and J. Baden. Managing the commons. 421 p. W.H. Freeman and Co, San Francisco.

Cohen, B.S. 1970. The Constitution, the Public Trust Doctrine, and the environment. Utah Law Review 3:388–394.

Dunning, H.C. 1980. The significance of California public trust easements for California's water rights law. U.C.D. Law Rev. 14(2): 357–398.

Hardin, G. 1968. The tragedy of the commons. Science 162:1243–1248.

Hickle, W.J. 1971. Who owns America? 398 p. Prentice-Hall, Inc., Englewood Cliffs, New Jersey.

Johnson, R.W. 1980. Public trust protection for stream flows and lake levels. U.C.D. Law Rev. 14(2):233–267.

Karr, J.R., and I.J. Schlosser. 1978. Water resource and the land-water interface. Science 201:229–234.

Morris, J.W. 1978. The Corps of Engineers and the American environment: Past, present, and future. EP-360-4-15. Office of the Chief Engineer.

Robie, R.B. 1974. Modernizing state water rights laws: some suggestions for new directions. Utah Law Review 4:760–784.

Sax, J.L. 1970. The public trust doctrine in natural resources law: effective judicial intervention. Michigan Law Review 68:471–566.

Schneider, A.S. 1978. Legal aspects of instream water uses in California. Staff Paper No. 6, Governor's Commission to Review Water Rights Law, State of California, Sacramento. 131 p.

Stevens, J.S. 1980. The public trust: a sovereign's ancient prerogative becomes the people's environmental right. U.C.D. Law Rev. 14(2):195–232.

U.S. Department of the Interior. 1969. National estuarine pollution study. Pursuant to Public Law 89–753.

U.S. Department of the Interior. 1970. National Estuary Study in Response to Public Law 90–454.

Wilkinson, C.F. 1980. The public trust doctrine in public land law. U.C.D. Law Rev. 14(2): 269–316.

The Public Trust and Riparian Systems

A Case for Preservation^[1]

David B. Anderson^[2]

Abstract.—The Public Trust Doctrine may be a strong tool for preserving riparian systems when competing human interests are few. But where they are many and established, the public trust is particularly unsuited for use as a preservation or management rationale, because it remains a vague and purist doctrine with little integration into the positive law. Its utility, or even its own preservation, requires that limits on it be advanced in a timely manner by those interested in resource protection.

It is natural to look to the Public Trust Doctrine as a vehicle for protecting riparian systems. In the 1971 case of Marks v. Whitney , the California Supreme Court noted that preserving tidelands in their natural state for ecological study, open space, or aesthetic value was a proper and protectible trust purpose.^[3] This case broke clearly with the traditional requirement that the protected public uses of trust waters relate to navigation or the "incidents" of navigation.^[4] The California Supreme Court in the Lake Tahoe case (decided early in 1981) focused heavily on the ecological importance of the shorezone of navigable lakes in deciding that the area between ordinary high and low water is impressed with a public trust servitude, which the State has not been equitably estopped to assert.^[5] And in the City of Berkeley case,^[6] the Court set forth a balancing test under which the public trust remains impressed on alienated tidelands as long as they have not been filled, i.e., as long as they remain in their natural state.

These cases emphasizing the natural integrity of the trust resource may betoken a departure from prior cases which have held that the promotion of any kind of commerce, whether through the construction of freeway bridges or tidelands oil drilling,^[8] is a proper exercise of trust power by the State, notwithstanding the impairment of use of the trust resource in its natural state. It has always been considered proper for the state as trustee to impair or eliminate portions of the resource where the effect was to improve the remainder for its natural uses. Navigation and harbor improvements are examples of this. But this is far different from an impairment which does not redound to the benefit of the resource itself, but instead serves the same class of purpose though in a manner not related to the exercise of trust rights by the public. The proposition that the furtherance of commerce, for example, is a proper trust purpose does not support the corollary that everything done to advance commerce falls within the state's powers and duties under the trust.

Of these recent cases, the Lake Tahoe and Clear Lake^[9] cases have the most importance for riparian systems. By expanding the recognized trust area to include the shorezone, these cases bring a portion of the riparian environment directly under legal protection. In addition, because of the very sensitivity of this area to landward influences this protection may be extended beyond the high-water mark to protect the more terrestrial reaches of the natural riparian system. Carried by the momentum of recent judicial successes, even more profound and creative

[1] Paper presented at the California Riparian Systems Conference. [University of California, Davis, September 17–19, 1981].

[2] David B. Anderson is Attorney with the California Department of Water Resources, and serves as Legal Counsel to the Reclamation Board, Sacramento, Calif.

[3] Marks v. Whitney , 6 Cal. 3d 251 (1971).

[4] Ibid . at 259; Bohn v. Albertson , 107 Cal. App. 2d 738 (1951).

[5] State of California v. Superior Court (Fogerty) , 29 Cal. 3d 240 (1981).

[6] City of Berkeley v. Superior Court,   26 Cal. 3d 515 (1980).

[7] Colberg, Inc . v. State of California ex rel. Department of Public Works , 67 Cal. 2d 408 (1967).

[8] Boone v. Kingsbury , 206 Cal. 148 (1928).

[9] State of California v. Superior Court (Lyon) , 29 Cal. 3d 210 (1981).

theories may be put forward to liberalize the application of the doctrine to California's riparian environments. But the point of this paper is not to urge expansion of the doctrine, which seems often to attend discussions of the public trust's potential. Its point is to advise caution and the need to limit the Public Trust Doctrine.

Where the natural riparian system is remote from competing human needs and development, the public trust, as it exists today, may well be a suitable tool. But where the riparian system includes residential and agricultural pressures for land and water—and this is where these pressures naturally gravitate—the Public Trust Doctrine appears today to be particularly ill-suited to the protection of environmental values. Such consumptive water and land uses may include using a river as a source or a conduit; flood control structures such as levees, dams, weirs, pumps, and bypasses; forest harvesting; sand and gravel extraction; sewage disposal; or any of the variety of things that are "useful to commerce".

Addressing a similar point, the Final Report of the Governor's Commission to Review California Water Rights Law^[10] remarked:

The California Wild and Scenic Rivers Act does provide direct and substantive protection for natural stream resources. But it . . . is essentially an 'all-or-nothing' approach. This approach, while appropriate for the rivers included under the Act, is unsuited for the protection of many streams which must accommodate both instream and offstream uses and equities, which vary widely from stream to stream.

The reason which underlies the need for caution is that the Public Trust Doctrine is fundamentally ill-defined and has remained a general political concept rather than a developed body of positive law. Its definition in the positive law, in actual controversies decided by courts, is burdened with a unique and vague terminology, of "juspublicum " and "jusprivatum ", of "imperium " and "dominium ", which aid very little in integrating the public trust into the traditional and familiar legal framework. Furthermore, the California Legislature, in whom trust powers formally reside, has done almost nothing to define or implement the trust.

The basic question remains: does the public trust rest on the police power or does it derive from state property power? On the one hand, the argument has been made that it is a species of police power.^[11] But property notions, imparted in its very name, run throughout the public trust cases in this state and elsewhere: public trust "easements" and "servitudes"; the idea that navigable waters are "owned" by the people; the division of legal and equitable title, as in the first Ivanhoe case;^[12] the application of private trust law principles in Mallon v. City of Long Beach ;^[13] the coincidence of the public trust in tidelands with the original state ownership of the underlying land; and a burdening of private property interests beyond the accepted scope of the police power.

It has been said that the public trust easement is a "type of public property right" (Dunning 1980). Even commentators on the federal navigation servitude, derived from the Commerce Clause of the U.S. Constitution, describe it as being of a "proprietary" nature (Morreale 1963). Others argue the public trust arises from the original state ownership of the underlying soil. But if state property in the beds is the source of the public right to use the water, then what is the source of the public right to use waters whose beds are in private ownership, i.e., those "non-navigable" under the federal test and for which is recognized a state "navigation servitude"?

In fact, California cases have consistently mixed the language of public trust and navigation servitude, and cited these cases interchangeably as authority.^[14] As far as "ownership" of the water goes, it has been repeatedly declared that private ownership of running water is impossible; and public "ownership," finding no correspondence in the private law, either means nothing or must denote some significant sovereign interest uniquely associated with the trust resource. But then, ownership would not be the source of the public trust, it would be the public trust (Trelease 1957).

It is possible that the association of trust rights and powers with ownership of the underlying land has been evolved as a convenient physical limitation on a government power and public right which is virtually absolute. On its face, "trust" connotes a property relationship, and we may have fallen into a problem of unfortunate nomenclature, just as public and private nuisance law has tended over time to be confused.^[15] Finally, the property concept is useful in the cases where private property rights are abridged by the assertion of the trust. The idea of subordinating one property right to a superior property right is readily understood and accepted, and this device may serve the objective of property law to preserve expectations, or at least to "forestall outrage" when those expectations are violated (Michelman 1967).

[10] December 1978.

[11] See Sax (1970).

[12] Ivanhoe Irr . Distr . v. All Parties , 47 Cal. 2d 597 (1957).

[14] 44 Cal. 2d 199 (1955).

[15] See, for example, the Colberg case.^[7]

[15] See Restatement of the Law, Second, Torts 2d Comment, Sec. 821, 13, p. 85–87, 93 (1979).

Certainly, the concurrent state ownership of the beds underlying navigable waters can give greater scope of action to the state as trustee, and to the public, under the Public Trust Doctrine than might otherwise be socially tenable. But this proposition does not support the converse that property in the state is a necessary pre-condition to public trust rights and powers. In the end, neither the police power nor state property rights theories explain what has been the most traditional aspect of the trust: the limitation on governmental power, in favor of the public, to terminate or impair the trust in a particular resource.

The danger in this lack of definition in the public trust is not that its authority is diminished. The danger is that its ostensible authority as a potential tool and as a proposition of positive law is practically unrestrained. State power to administer the trust has been broadly expanded, as have been the public rights of use. It has been stated that, when the state so elects, it may enter and take possession of resources subject to the trust and exercise its absolute power over them, regardless of the legal title in a private person. ^[16] The doctrine itself brooks no limits, whether competing interests are asserted by individuals or by public entities in furtherance of other social policies.

But nothing in political reality or positive law is absolute. Even the most valuable of civil rights must have its limits, such as those which have been painstakingly evolved for freedom of speech. And principles which are not founded in constitutional law are especially at risk. Limitation may well mean attenuation, but it is also the key to effectiveness, if not to preservation.

The invocation of equitable estoppel in City of Long Beach v. Mansell^[17] corresponds to the observation in the City of Berkeley case, that long reliance or the development of trust lands conveyed into private ownership will effect the termination of the trust easement otherwise retained by the state upon alienation of the property. This is an attempt by the courts to preserve substantial private expectations and values, in essence, to place limits on the trust in terms of the constraints and duties it imposes on government activity. But notably, even this type of limitation is an all-or-nothing approach: trust and competing values are not balanced, accommodated, or mutually compromised; either the trust exists or it is completely terminated.

The Mono Lake case^[18] is an excellent example of the danger to the present trust doctrine. Water law and water rights cases have evolved a solid and elaborate legal doctrine in this state. Considerable investment, as well as social and economic growth and development patterns have occurred in reliance on property rights established under this doctrine. Furthermore, water law has, primarily through the constitutional principles regarding waste and unreasonable use of water and through administrative consideration of the "public interest"—which as has been noted "spreads a large tent"^[19] —developed the capacity to embrace and reconcile or to interact with myriad social values. The public trust, on the other hand, remains largely a purist doctrine, with little integration into the positive law and consequently with essentially no capacity to accommodate other values.

The property claims of Los Angeles to the waters feeding Mono Lake are firm and well established, over 40 years old. The economic benefit derived from power generation is substantial. There nonetheless may well be room for adjustment and compromise. Unfortunately, the Public Trust Doctrine does not suffer compromise. The State Attorney General has urged, and the trial court has agreed, that the public trust is "subsumed" in the administration of water rights and the State Water Resources Control Board (SWRCB) unreasonable-use authority.

Although this holding does not dispose of the central question of whether and to what extent the public trust uses and values of Mono Lake will prevail, it does represent a defeat for the National Audubon Society by the trust's loss of equal doctrinal dignity with and subordination to the more flexible water rights system. It may be going too far at this point to say that the Audubon society setback resulted from its failure to demonstrate how the public trust and property values could coexist at Mono Lake, or how, if the trust prevailed at Mono Lake, this would not have cataclysmic implications for all water development throughout the state. But the result, given this perspective, is not at all unexpected.

If the SWRCB is found to have continuing jurisdiction to consider and enforce public trust values over Los Angeles' water rights, the Audubon Society will still have the opportunity to make its case on the central issue, despite whatever disadvantages it may feel in a water rights administration forum. It still, therefore, has the opportunity to fashion some flexibility—some limitations—for the public trust to obtain as favorable a decision as possible from the SWRCB.

One may say that Mono Lake is such a special resource that its protection must be unyielding. But the hazard is that when significant competing values are arrayed against the trust theory, in the Mono Lake case, with implications for the state's entire water rights system, the result may well be the evisceration of the trust. The

[16] People v. California Fish Co . 166 Cal. 576 (1913).

[17] 3 Cal. 2d 462 (1970).

[18] National Audubon Society , etal . v. Department of Water and Power , etal ., County of Alpine, Civil No. 639.

[19] Duprey. 1977. Unpublished paper on F.E.R.C. permits, May, 1977.

lawyer's role is to provide courts or administrative boards in such circumstances with limitations on the trust that can preserve the trust's strong role in resource protection while assuring that competing values, while diminished, will not be destroyed. If limitation is inevitable, then it is in the definite interests of those who wish to advance trust objectives to control or influence the limitations which are bound to be devised in any case.

The public trust remains perhaps the closest thing to "natural law" in the field of resources law. The role of natural law or its functional counterparts is to legitimize the exercise of power. But power itself in a republic resides in the domain of positive law. As there is great need so is there great room for the translation of the public trust into the positive law and into the day-to-day decisionmaking of judicial, managerial, and regulatory bodies. At the very least, trust values may be more readily injected into the existing public interest authority of these bodies. But even this first step will require managers and regulators, as well as those challenging governmental action, to devise limitations for the implementation of these values so that they may reasonably coexist with competing social concerns.

Literature Cited

Dunning, H. 1980. The significance of California's public trust easement for California water rights law. UCD L. Rev. 19:357–364.

Michelman. 1967. Property, utility,and fairness: comments on the ethical foundations of "Just Compensation" Law. Haw. L. Rev. 1165.

Morreale, E. 1963. Federal power in western waters: the navigation power and the rule of no compensation. Nat. Res. J. 3:1.

Sax. 1970. The Public Trust Doctrine in natural resource law: effective judicial intervention. Mich L. Rev. 68:473.

Trelease. 1957. Government ownership and trusteeship of water. Cal. L. R. 45:638.

The State as Public Trustee

Neutral Umpire or Activist Guardian?^[1]

Jan Stevens^[2]

Abstract.—The public trust doctrine has been commonly characterized as an inhibition on the power of legislatures to deal with navigable waters and the lands underlying them. However, it may also impose affirmative duties on government to consider trust values and to engage in positive planning for the protection of trust uses. Such responsibilities may be expressed in state constitutions or statutes.

Introduction

The Public Trust, like the Ten Commandments, has historically been phrased in prohibitory terms. "Thou shalt not abdicate the State's general control over its navigable waters," the courts have said. "Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such water for the use of the public".^[3]

The public trust doctrine in this country has traditionally been expressed as follows: With the Revolution, the thirteen colonies received all the rights of the Crown in the beds of navigable waters. These waters are held in trust for the common use of the people; the states have no power to make wholesale grants of them, and a grant of these waters, if effective at all, passes only bare title, subject to public trust rights. Our navigable waters were, in the words of the Northwest Ordinance and innumerable later acts of statehood (including California's), to be "common highways, and forever free." The sovereign power itself ". . . cannot, consistently with the principles of the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right."^[4] "It would be a grievance," said the court, "which never could long be bourne by a free people."

The public trust played a valuable role in the settlement of the frontier and the development of commerce. In 1842, Justice Taney was observing that:

(T)he men who first formed the English settlements, could not have been expected to encounter the many hardships that unavoidably attended their emigration to the new world, and people the banks of its bays and rivers, if the land under the water at their very doors was liable to immediate appropriation by another as private property; and the settler upon the fast land thereby excluded from its enjoyment, and unable to take a shellfish from its bottom, or fasten there a stake, or even bathe in its waters without becoming a trespasser upon the rights of another.^[5]

For, as the Court said 74 years later, ". . . the public authorities ought to have entire control of the great passageways of commerce and navigation to be exercised for the public advantage and convenience."^[6]

Thus as it evolved in this country the trust was characterized in terms of commerce: the public trust for commerce, navigation, and fisheries, and it developed in terms of a limitation on the right of a sovereign state to divest itself of the lands underlying such waters, thus impairing the people's right to use these great passageways of commerce and depriving future legislatures of the opportunity to regulate and develop them.^[7]

[1] Paper presented at the California Riparian Systems Conference [University of California, Davis, September 17–19, 1981].

[2] Jan Stevens (A.B., LL.B., University of California) is Deputy Attorney General, State of California. The views expressed are those of the author and do not purport to represent those of the Attorney General.

[3] Illinois CentralRailroad Co . v. Illinois , 146 U.S. 387, 452–453 (1892).

[4] Arnold v. Mundy 6 N.J.L. 1, 78 (1821).

[5] Marten v. Waddell , 41 U.S. (16 Pet.) 367, 14 (1842).

[6] Barney v. Keokuk , 94 U.S. 324 (1876).

[7] E.g., Illinois Central Railroad v. Illinois , supra .

Two factors began to complicate this equation: the extension of trust uses to recreation and environmental protection, and the concurrent recognition that coping with the pressures of growth—whether in a police power or a public trust context—requires more than a passive or negative role on the part of government.

Marks v. Whitney

Environment and the Four-Day Weekend

In its traditional common law form, the public trust was designed to prevent improvident kings or legislatures from disposing of the great public waterways. The doctrine was based on the protection of commerce . The 1821 New Jersey court in Arnold v. Mundy found no problem in the legislature's erecting "ports, harbours, basins, docks, and wharves . . ." from banking off the waters and reclaiming the land upon the shores, and from building dams, locks, and bridges "for the improvement of the navigation and the ease of passage . . ."^[8] And to this day, there are jurisdictions that stubbornly adhere to the proposition that the historic rights of the public to use of the foreshore are limited to fishing and bathing, and certainly do not include lying on the beach.^[9] Not so in most American courts. By 1893, the Minnesota court had pointed out: "There are innumerable waters—lakes and streams—which will never be used for commerce, but which have been, or are capable of being used for sailing, rowing, fishing, fowling, bathing, skating and other public purposes, and . . . it would be a great wrong upon the public for all time to deprive the public of these uses merely because the waters are either no used or not adaptable for commercial purposes."^[10]

A California appellate court identified the rationale: "With our ever increasing leisure time (witness the four- and five-day weekend), and the ever increasing need for recreational areas (witness the hundreds of camper vehicles carrying people to areas where boating, fishing, swimming and other water sports are available), it is extremely important that the public not be denied use of recreational water by applying the narrow and outmoded interpretation of 'navigability.'"^[11]

The penultimate statement of public trust uses came from the California Supreme Court in 1971. The court made it clear that the public trust encompassed such recreational purposes as bathing, swimming, fishing, hunting, boating and general recreation, as well as use of the bottom for anchoring, standing or similar purposes. But that was not all:

The public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs . . . (T)he state is not burdened with an outmoded classification favoring one mode of utilization over another . . . . There is a growing public recognition that one of the most important public uses of the tidelands—a use encompassed within the tidelands trust—is preservation of these lands in their natural state, so that they may serve as ecological units for scientific study, for open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.^[12]

Implementation of the Public Trust or, Can Defeat Be Snatched from the Jaws of Victory

The public trust, then, comes to us in the shape of an elephant described by each interest group in terms of its own needs and desires. To the petroleum engineer, who, as Doonesbury points out, has just as much of a right to enjoy the environment as the Sierra Clubber, the public trust encompasses exploration and extraction of oil from the tide and submerged lands. To the port of Oakland, it represents the ability to develop docks and industrial parks. And government, representing as it presumably does, all the people, finds itself in the ambivalent position of weighing the competing needs of seagulls and urban consumers of water.

The interesting questions then arise: can it weigh such needs? Must it? And if it must, what is the role to be given to public trust considerations in the application of complex statutory schemes affecting the welfare of millions of people?

This is the next chapter in the developing law of public trust, and it is presently being played out in courts all over the country—from the Mono Lake litigation in Sierra County to 2.1 Million Acres of Trees v. Bert L . Cole , a superior court action filed in Thurston County, Washington, against the Commissioner of Public Lands for injunctive relief against threatened acts that will be left to your imaginations. However, we have been given a few clues from some recent past decisions. These decisions suggest that the public trust is most valuable when it is

[8] Arnold v. Mundy , supra , 6 N.J.L. 1, 78.

[9] Cf . Tucci v. Salzhauer , 69 Misc. 2d 226, 329 N.Y.S. 2d 825 (S. Ct. 1972), modified 336 N.Y.S. 2d 721, affd. 352 N.Y.S. 2d 198; cf. Blundell v. Catteral , 106 Eng. Rep. 1190 (Ex. 1821)

[10] Lamprey v. State , 52 Minn. 181, 199, 53 N.W 1139, 1143 (1893).

[11] Peopleex rel Baker v. Mack , 19 Cal. App. 3d 1040, 1044, 97 Cal. Rptr. 448, 451 (1971).

[12] Marks v. Whitney , 6 Cal. 3d 251, 259–260; 491 P. 2d 374, 380, 98 Cal. Rptr. 790, 796 (1971).

applied as part of a statutory scheme for regulation of a valuable resource. Because it involves the enforcement of rights the public always had, it avoids the objection of taking with which police power regulations are invariably met. And because it is a doctrine that cries for reasoned legislative judgements, it acts admirably well as a device to compel planning for the present and future.

One of the famous examples of this is the justly celebrated case of Just v. Marinette County ,^[13] a decision from the Supreme Court of one of the states longest concerned with the public trust—Wisconsin. Acting pursuant to legislative direction, Marinette County adopted a model shoreland zoning ordinance requiring a permit for projects on lands within 305 m. (1,000 ft.) of the normal high-water elevation of navigable lakes, ponds or flowages, 91 m. (300 ft.) from a navigable river or stream or to the landward side of the floodplain, whichever distance is greater.^[14] The purpose of the state law pursuant to which the ordinance was adopted was to "aid in the fulfillment of the state's role as trustee of its navigable waters and to promote public health, safety, convenience and general welfare."^[15] Under the ordinance the filling, drainage or dredging of wetlands^[16] required a permit.

Before the ordinance was passed, the Justs had purchased 14.7 ha. (36.4 ac.) of land on the south shore of Lake Moquebay, with a lakefront frontage of 386.1 m. (1,266.7 ft.). After selling five parcels, the Justs retained property with a frontage of 111.8 m. (366.7 ft.), half with a stand of cedar, pine, and various hardwoods (birch and red maple); and the half closer to the lake largely populated with "various plant grasses and vegetation including some plants which N.C. Fassett in his manual of aquatic plants . . . classified as 'aquatic."' Six months after the ordinance became effective, Ronald Just, without the benefit of a permit, filled more than 500 square feet of wetlands contiguous to the water and with surface drainage toward the lake. When the trial court found he had violated the ordinance, he claimed that his land had been taken by Marinette County and the State of Wisconsin without compensation.

The Supreme Court disagreed. The regulation was valid, it was held, in part because "(l)ands adjacent to or near navigable waters exist in a special relationship to the state . . . and are subject to the state public trust powers."^[17]

The state of Wisconsin under the trust doctrine has a duty to eradicate the present pollution and to prevent further pollution in its navigable waters. This is not, in a legal sense, a gain or a securing of a benefit by the maintaining of the natural status quo of the environment. What makes this case different from most condemnation or police power zoning cases is the interrelationship of the wetlands, the swamps and the natural environment of shorelands to the purity of the water and to such natural resources as navigation, fishing, and scenic beauty. Swamps and wetlands were once considered wasteland, undesirable, and not picturesque. But as the people became more sophisticated, an appreciation was acquired that swamps and wetlands serve a vital role in nature, are part of the balance of nature and are essential to the purity of the water in our lakes and streams. Swamps and wetlands are a necessary part of the ecological creation and now, even to the uninitiated, possess their own beauty in nature . . . An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others. The exercise of the police power in zoning must be reasonable and we think it is not an unreasonable exercise of that power to prevent harm to public rights by limiting the use of private property to its natural uses . . . the active public trust duty of the state of Wisconsin in respectto navigable waters requires the state not only to promote navigation but also to protect and preserve those waters for fishing recreation , and scenic beauty .^[18]

"The active public trust duty of the state," said the Court. But the traditional common law trust was a prohibition; a shield rather than a sword. And only lately has it been suggested that the existence of the public trust alone justifies the imposition of permit requirements on shorezone or wetlands developments.^[19]

It is a short distance from Just v. Marinette County to the policy decision of the California Resources Agency that wetlands should be preserved in perpetuity, and that no state authorization or approval of projects detrimental to wetlands will be made unless, among other

[13] 56 Wis. 2d 7, 201 N.W. 2d 761 (1972).

[14] Ibid ., 201 N.W. 2d 764 (1972).

[15] Ibid ., at 765.

[16] Wetlands are defined as "areas where groundwater was at or near the surface much of the year or where any segment of plant cover is deemed an aquatic according to N.C. Fassett's 'Manual of Aquatic Plants.'"

[17] Ibid ., at 769.

[18] Ibid ., at 768 (emphasis added by author).

[19] Cf. T. McKnight, Title to Lands in the Coastal Zone, 47 Calif. State Bar J. 408, 471 (1972).

things, the public trust is not adversely affected.^[20]

This "active duty" it appears, is most active when it is implemented by the people through constitutional amendment or statute. And even then, of course, the plaintiffs don't always win. The enactment of Pennsylvania's constitutional provision guaranteeing the people "a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment," and describing the Commonwealth as "trustee" of the state's public natural resources,^[21] nevertheless did not provide absolute protection against the widening of a street in an historical section:

We hold that Section 27 was intended to allow the normal development of property in the Commonwealth, while at the same time constitutionally affixing a public trust concept to the management of public natural resources of Pennsylvania. The result of our holding is a controlled development of resoures rather than no development.^[22]

Courts do not file actions. They preside over them and attempt to resolve the controversies of determined adversaries. While they may describe the public trust as an active one, the activity must come from the parties. The framework in which the courts most successfully operate is provided by statutes reflecting recognition of and respect for the public trust, and determined efforts to reconcile competing trust uses with social and political realities.

When the Legislature enacted a statute modifying, by implication, a previous grant of tidelands to the City of Emeryville in the interests of greater protection for the San Francisco Bay, the court saw to it that its intent was carried out.^[23]

When the Legislature empowered a state agency to reject the construction of dams when they did not serve "the public good," it permitted a finding that their effects on sports fishing, white water canoeing and streambed outweighed the alternate recreational and financial benefits accruing from a 21-acre reservoir.^[24]

Where an historic state trust interest in wild game is threatened by the failure of a diverter of water to construct adequate fish screens, the diverter will be compelled to stop diverting until greater protection is provided, notwithstanding his water rights.^[25] And even where a modern water pollution statute provides for statutory penalties, a polluter may be held equally liable under common law principles for the destruction of fish.^[26]

Again, when the City of Madison proposed a plan to fill portions of a lake as part of a general plan for improvement of a city park, the court declined to apply the trust as a mechanistic prohibition. Finding that overall, more area would be made available for beach and related recreational uses, the court upheld the City's plan. In doing so, it observed:

(I)t is not the law, as we view it, that the state, represented by its legislature, must forever be quiescent in the administration of the trust doctrine to the extent of leaving the shores of Lake Michigan in all instances in the same condition and contour as they existed prior to the advent of the white civilization in the territorial area of Wisconsin.^[27]

It has long been recognized that application of the public trust involved the balancing of public trust uses and the extinguishment of the trust in small and isolated parcels at times when it is necessary to futher overall public trust uses. Thus, the court was impressed by the fact that notwithstanding part of the lakebed would be filled for a parking area and appurtenant highway, "(1) public bodies will control the use of the area; (2) the area will be devoted to public purposes and open to the public; (3) the diminution . . . will be very small as compared to the whole of Lake Windgra; (4) none of the uses of the Lake as a Lake will be destroyed or greatly impaired; (5) the disappointment of those members of the public who may desire to boat, fish, or swim in the area to be filled . . . is negligible when compared to the greater convenience to be afforded those members of the public who use the City Park."^[28]

Again, in approving the exchange of land between the City of Milwaukee with a steel company, with city harbor development in mind, the court took and affirmative position:

The trust reposed in the state is not a passive trust; it is governmental, active, and administrative. Repre-

[20] "Policy for Preservation of Wetlands in Perpetuity," September 19, 1977, as modified July 30, 1980.

[21] Art. I, sec. 27, Pennsylvania Constitution.

[22] Payne v. Kassab , 11 Pa. Cmwlth. 14, 312 A 2d 86, 94 (1973).

[23] People ex rel S. F. Bay etc. Com. v. Town of Emeryville , 69 C. 2d 553, 549, 72 Cal. Rptr. 790, 446 P. 2d 790 (1968).

[24] Appl'n of Hemco, Inc. (Vt. 1971) 283 A. 2d 246; see, also, Muench v. Public Service Commission , 261 Wis. 492, 53 N.W. 2d 514 (1952).

[25] People v. Glenn-Colusa Irr . Dist ., 127 Cal. App. 30 (1932).

[26] State v. Jersey Central P&L Co. , 125 N.J. Super. 97, 308 A. 2d 671 (1973).

[27] State v. Public Service Commission , 275 Wis. 112, 120, 81 N.W. 2d 71, 74 (1957).

[28] Ibid ., 81 N.W. 2d at 73 (1957).

senting the state in its legislative capacity, the legislature is fully vested with the power of control and regulation. The equitable title to those submerged lands vests in the public at large, while the legal title vests in the state, restricted only by the trust, and the trust, being both active and administrative, requires the law-making body to act in all cases where action is necessary, not only to preserve the trust, but to promote it.^[29]

One final example will suffice to illustrate the extent to which the public trust can compel appropriate planning: the case of United Plainsmen v. North Dakota State Water Conservation Commission .^[30] There, the United Plainsmen sought to restrain the State Engineer from issuing water permits for coal-related power and energy production facilities until a comprehensive short- and long-term plan for conservation and development of the State's natural resources had been developed. It was contended that such planning was required by a statutory declaration that accruing benefits from land and water resources could best be achieved through such planning. Second, the United Plainsmen contended that the discretionary authority of state officials to allocate such vital state resouces was circumscribed by the public trust doctrine. The court agreed. It held that in performance of the statutory duty to allocate resources consistent with the public interest:

(T)he Public Trust Doctrine requires, at a minimum, a determination of the potential effect of the allocation of water on the present water supply and future water needs of this State. This necessarily involves planning responsibility . . . Confined to traditional concepts, the Doctrine confirms the State's role as trustee of the public waters. It permits alienation and allocation of such precious state resources only after an analysis of present supply and future need.^[31]

This is not to say that such decisions will or should be left to the governmental guardians of our environment. Effective application of the obligations imposed by any doctrine as rich and ambiguous as the public trust requires participation from all segments of the environmental spectrum. It is clear in California that members of the public, as well as concerned organizations and individuals with a direct stake in controversies, may sue to enforce the trust (Marks v. Whitney , supra ). An analagous example of what can happen in such cases arose under federal law in the recent Redwood Park cases.^[32] There the federal district court found that the Secretary of the Interior had both general and specific obligations to preserve the Redwood Park from damage threatened by logging operations on lands adjacent to and upstream of the park, and ordered the National Park Service to use all of its powers to protect the lands, to attempt to negotiate contracts with the private loggers, to consider acquisition of the private adjacent lands, and even to lobby Congress for funds to buy out some of the private landowners.

The public trust is more effectively enforced through such statutory and constitutional foci than by lawsuits seeking to vindicate the deeply felt but evanescent rights of thousands of trees, rocks and jellyfish. When Margaret Fuller's inspirational statement, "I accept the universe," was brought to the attention of Thomas Carlyle, his reaction was said to have been, "She'd better!"

Or, as the Pennsylvania court said in more directly applicable form:

We must recognize . . . that decision makers will be faced with the constant and difficult task of weighing conflicting environmental and social concerns in arriving at a course of action that will be expedient as well as reflective of the high priority which constitutionally has been placed on the conservation of our natural scenic, esthetic, and historic resources.^[33]

[29] Milwaukee v. State , 193 Wis. 423, 214 N.W. 820, at 830, 54 ALR 419 (1927).

[30] 247 N.W. 2d 457 (N.D. 1976).

[31] Ibid ., at 462–463.

[32] Sierra Club v. Department of the Interior , 376 F. Supp. 90 (N.D. Cal. 1974); Sierra Club v. Department of the Interior , 398 F. Supp. 284 (N.D. Cal. 1975); Sierra Club v. Department of the Interior , 424 F. Supp. 172 (N.D. Cal. 1976).

[33] Payne v. Kassab , supra , 312 A. 2d at 94.

Riparian Regulations

Random, Redundant, or Rational?^[1]

Sari Sommarstorm^[2]

Abstract.—New approaches to riparian regulation will be necessary in the 1980s if past legal gains are to be maintained and new ones achieved. An evaluation of the present local, state, and federal regulatory framework for riparian system protection is presented to identify under- and overlapping authorities and possible areas of improvement.

Introduction

Regulation is like medication. Too little a dose may not cure the problem and too much may kill off the patient. In the 1960s and 70s, we were in an era of concern about too little environmental regulation; now in the 80s, rightly or wrongly, we are in an era of concern about over-regulation. Although California's riparian systems are still vulnerable to destruction, the use of regulation to protect them is being seriously challenged. To respond to this challenge, those of us concerned about the health of our riparian systems should seek to find the proper regulatory dosage before we lose the patient.

The purposes of this paper are several:

1. to identify the primary local, state, and federal regulatory agencies and laws responsible for conserving riparian systems on private lands;

2. to analyze these regulatory responsibilities from the perspective of the regulators as well as those regulated;

3. to propose some improvements in the current regulatory approach; and

4. to stimulate discussion regarding our traditional assumptions about environmental regulation as a conservation tool.

The riparian systems to be emphasized in this paper are mainly the riparian resources along inland rivers and streams rather than aquatic wetlands or lakes. This paper also takes a statewide perspective rather than that of a single geographical area. Of course some bias cannot be helped. I am partly approaching this subject from the perspective of a resource planner in a rural county which is innately resistant to any new regulations. The county is also extremely reluctant to accept or enforce mandatory directives from the state or federal level. The burden of proof is on me to justify any new local regulations to protect riparian vegetation when the county's decisionmakers feel there are too many regulations already.

The basic questions we need to ask ourselves and to honestly try to answer are the following.

1. Can we justify any new regulations for riparian zones?

2. Are riparian systems already overregulated?

3. Can we streamline the present regulatory process without stripping streams of their riparian vegetation?

A Reconnaissance of Riparian Regulations

A review of environmental laws reveals that the term "riparian" does not have to be explicitly stated for a law to include the riparian zone. Implicit regulations of activities in the riparian zone appear in the permit process for projects in a variety of ways. The scope of such permits involves: a) project location; b) project activities; and c) resources affected by the project (California Office of Planning and Research 1980). Table 1 illustrates the wide range of concerns in these three categories which can pertain to the riparian zone.

Identifying the range of concerns is the first step toward analyzing the specifics of regulation. Each item listed in table 1 has a unique set of regulations, or lack thereof, associated with it. Some of these will be explored later on in this paper.

[1] Paper presented at the California Riparian Systems Conference. [University of California, Davis, September 17–19, 1981].

[2] Sari Sommarstrom, Ph.D., is Natural Resource Policy, Planning and Management Consultant, Covelo, Calif.

Before describing the pertinent regulatory agencies, it is important to note that they all reflect the scope of the laws establishing their existence. Most began as governmental entities designed to carry out a single purpose: water quality control; water rights control; game protection; timber harvest regulation. Because of new public concerns, some have evolved to add other purposes: endangered species protection; soil erosion control; nongame wildlife habitat concern. In addition, some agencies, particularly state and local, have had to reflect hierarchical directives for implementation from the federal level. New environmental laws are not necessarily reviewed, prior to passage, for their overlap or conflict with existing laws or agency responsibilities. All of the above factors add up to creating the regulatory bureaucracy we have today, for better or worse.

An exhaustive survey of every local, state, and federal riparian regulation in California is beyond the scope of this paper. Other papers (e.g., Jones 1983; Kramer 1983) provide a more indepth examination of the present legal framework. Focusing instead on the primary regulations and agencies allows an examination of the basic "who, what, where, why questions."

Local Regulations

Local government can use its police powers for protecting public health, safety, and welfare in establishing regulations. Several mechanisms are available which can be applied to regulating uses in streamside areas. These ordinances are briefly described below, from most to least common and in a general sense, rather than as specifically used in one locality. In most cases, the planning agency is the one responsible for administering the applicable ordinances, but sometimes public works, building, flood control, or water departments are also involved.

Zoning Ordinance

This measure is the most common form of local land-use regulation. It establishes the types of uses permitted on all private land within the city's or county's borders and can thereby influence riparian land use. Each zoning district establishes a list of permitted uses (e.g., single family residential; agricultural); prohibited acts (e.g., mineral extraction); and conditional-use procedures. Special requirements may be added, within reason, to use and conditional-use permits to ensure conformity to general plan policies. Floodplain regulations are assumed in this analysis to be administered as a floodplain overlay zone.

Grading Ordinance

Most local governments have adopted at least the minimal excavation and grading regulations established by Chapter 70 of the Uniform Building Code (International Conference of Building Officials 1979), which is mainly concerned with safeguarding private property. Others have either amended the zoning or subdivision ordinance or established a separate ordinance to minimize erosion or sedimentation from a project (Thurow etal . 1975). Grading controls can be used to minimize or prevent disturbance of riparian vegetation and "drainage channels."

Mining Ordinance

In addition to zoning controls on mining operations, counties were required by the California Surface Mining and Reclamation Act of 1975 (SMARA)^[3] to adopt ordinances which require the reclamation of mining lands. Counties may either adopt the state model ordinance or a stricter one. Gravel extraction is the most common mining operation with the potential to affect riparian resources.

Riparian Ordinance

Also referred to as a watercourse or stream environment protection ordinance, this site-specific regulation is the least commonly used. It may be typified for scope and authorities by the "Model Riparian Ordinance" developed by the California Department of Fish and Game (1980). While specifically designed to protect riparian vegetation, the model ordinance also encompasses riparian lands not fringed by plant species.

[3] Section 2710-1793 Public Resources Code.

State Regulations

California Permit Handbook

The California Permit Handbook (California Office of Planning and Research 1980) provides a concise description of the "who, what, where, how" of the various state regulatory requirements for development projects. Based on this source, only four state agencies may require permits for projects affecting riparian resources. Two of these agencies, the Coastal Commission and the Reclamation Board, are eliminated from the following discussion because their jurisdictions are not statewide in scope.

Department of Fish and Game

Department of Fish and Game (DFG) Code Sections 1601–1603 require a Stream Alteration Agreement for any work undertaken below the mean highwater mark of a body of water containing fish or wildlife resources or where the project will use material from the streambed. While technically not a permit, the agreement includes specific conditions which must be met by the applicant to mitigate potential problems.

Department of Forestry

Timber harvesting of commercial species requires a Timber Harvest Plan to be approved by the Department of Forestry (DF). The plan must conform to the rules and regulations of the Board of Forestry, the Forest District, and the Z'berg-Nejedly Forest Practice Act of 1973 (as amended).^[4] A small number of riparian forest trees, mostly in the north coast, are included as "commercial species": red alder, white alder, coast redwood, pepperwood, and others. A "Watercourse and Lake Protection Zone" is now established in the rules which requires a certain minimum width for special protection measures. No approval is required for timber operations on less than 1.2 ha. (3 ac.). Conversion of private commercial timberland to a use other than growing commercial timber requires a Timberland Conversion Permit.

State Water Resources Control Board—Division of Water Rights

According to the California Water Code, a Permit to Appropriate Water must be obtained from the State Water Resources Control Board (SWRCB) by any person or public agency who proposes to divert water from a surface stream for use on non-riparian land. Conditions are attached to such permits to assure that permittees prevent waste, practice water conservation, and put the water to the "fullest beneficial use". Water diversion under a riparian claim only requires a Statement of Water Diversion and Use, which is for informational purposes only. The SWRCB jurisdiction for issuing permits and licenses for underground water is limited to "subterranean streams flowing through known and definite water channels" which will be applied to nonoverlying land. In general, most groundwater use does not require such a permit.

Regional Water Quality Control Boards

The nine regional water quality control boards (RWQCB) are delegated permit-issuing authority by the SWRCB for waste discharges into any surface waters or groundwater. Both point (e.g. from a pipe or confined channel) and nonpoint (e.g. erosion from soil disturbance) sources of water pollution may require a permit or waste discharge requirements, based upon the water quality standards adopted in the regional board's Basin Plan. Logging, construction, or associated activities in the riparian zone would be affected. Legal authority for the regional boards is derived from the Porter-Cologne Water Quality Control Act^[5] and other related Water Code sections, and the Federal Clean Water Acts.^[6]

California Environmental Quality Act

Without belaboring the specifics, this discussion of regulation must at least note that agencies other than the above may have to review a project under the California Environmental Quality Act (CEQA)^[7] referral process. These non-permit issuing agencies can make their own comments concerning a project's impacts. An example of a CEQA Referral List is provided in Table 2, a case study of gravel extraction permits. For the majority of private projects, the lead agency is usually a local rather than a state agency. The lead agency must determine whether the project will have a significant effect on the environment. This "significant effect" includes riparian concerns, such as the substantial reduction of habitat for fish, wildlife or plants. Exempted from CEQA requirements are "minor alterations to land."

Federal Regulations

Most federal laws which pertain directly or indirectly to riparian systems are administered at the state or local level. Only one federal regulatory agency is potentially involved with private projects.

US Army Corps of Engineers

Under the authority of Section 404 of the Clean Water Act (as amended), the US Army Corps of Engineers (CE) may require a permit for projects involving the location of a structure in or on, or the excavation or discharge of dredge or fill material into "navigable waters". This

[4] Section 4511-4628 Public Resources Code.

[5] Section 13000-13998 Water Code.

[6] 86 Stat. 816; 91 Stat. 1566.

[7] Section 21000-21178 Public Resources Code.

jurisdiction now includes wetlands, rivers, and intermittent streams below the ordinary highwater mark. Although the riparian zone appears to be excluded, certain activities affecting riparian resources are covered by this permit (e.g. riprap, levees). [See Kramer (1981) and F. Smith (1981) for a thorough discussion of the Section 404 process and scope.]

Reductionistic Reflections

Regulated Activities

Comparing the primary regulations just described with a representative sample of project activities from table 1 can lead to some useful insights. Such a comparison is facilitated by table 3. A slightly different description is offered for the local ordinances. Since these local regulations are not uniform throughout the state, it seems necessary to distinguish between an existing situation and a potential one. For each ordinance type, the left-hand symbol represents the present Mendocino County regulatory situation, which may be typical of rural counties. The symbol to the right indicates the potential authority which such a local ordinance might assume within its scope. This potential authority is based on "model" ordinances where possible (Thurow etal . 1975; California Department of Fish and Game 1980).

As one can see from table 3, the number of permits potentially required range from zero or

one for grazing to four or five for streambed alteration. Both under- and overlapping authorities become apparent: groundwater use, water diversion based on riparian rights, and vegetation removal (non-timber) are essentially unregulated; timber harvesting and gravel extraction are regulated by two or more agencies. The implications of this observation depend upon one's point of view.

The regulated individual, or the applicant who wants to carry out a project in the riparian zone, will be concerned that, for example, he may need as many as five permits for a gravel extraction operation. He may have to deal with the time-consuming permit process of each federal, state, and local agency. The separate permit requirements may also be contradictory, for example, one agency demanding cross-sections every 50 ft. for a gravel operation, another requesting them every 75 ft., and a third stating the stream impacts are not important enough for a cross-section requirement. Such confusion, which is not unusual, may cause the applicant to take out his frustrations in the political arena, which can lead to poor publicity and possible weakening or loss of the law (Sommarstrom 1981).

Regulators should observe from this table which other agencies have overlapping authorities. The need for good coordination between regulators becomes obvious. Without consistency between the agencies' recommendations, the applicant may exploit the communication gap and play one agency against the other. The different expertise and enforcement powers of the various agencies need to work together and complement one another where possible. Aside from the overlap, certain agencies have the sole responsibility for regulating an activity, such as the appropriation of stream water by the SWRCB or the control of vegetation removal by a local agency through a riparian ordinance. Protection of the resource in these cases is dependent upon the ability of that particular agency to carry out its duties.

Regulatory Objectives

Another way to analyze regulations is to contrast the legal concerns or objectives of each of the agencies, as shown in table 4. CEQA has been added in order to compare its mandates.

Table 4 reveals that land-use regulation is solely a responsibility of local government while water quality is addressed at all three levels. These objectives only come into play, it should be noted, if a permit is required from the agency. The CE, for instance, is only concerned about protecting endangered species if a project occurs within its jurisdiction.

Several interpretations can be made of this table. Under- and overlapping objectives become obvious, as with table 3, and the problems and needs are similar to the preceding discussion. In addition, CEQA requires the lead agency to address each of the listed concerns through the environmental review process.

The column under each agency/regulation presents another set of information. The RWQCB, for instance, is primarily a single-purpose agency for water quality, although it is required to take other issues into consideration. Following much controversy, DF is now required to protect both the productivity of timberland and water quality through its timber harvest plan review.

Riparian regulatory programs are criticized by Kusler (1978) for having limited objectives which handicap their effectiveness. For example, floodplain regulations are directed to minimize flood hazards but not to protect wildlife, he states. The local zoning ordinance column in table 4 illustrates this criticism for the present situation; it also shows that zoning ordinance has the potential to address broader concerns and objectives.

The bottom line of this entire discussion on regulations is, of course, enforcement. Without adequate enforcement, one might as well place zeros in all of the columns in tables 3 and 4.

"Adequate" enforcement means the proper exercise of executive or police power when permit conditions are violated, as well as an effective "disincentive" penalty for violations.

Repackaging the Rules

Repackage is defined in the dictionary as to put into a more efficient or attractive form. It certainly can be argued from the above analysis that the current approach toward riparian regulation could be made more efficient if the rules are to be productive of desired effects. With the array of single-purpose agencies and overlapping laws described, the present system is vulnerable to criticism despite the legal gaps also present. We must try to clean up our regulatory act while, at the same time, striving to improve riparian protection.

Reforming the Overlap

The public's perception of being "overregulated" is directly related to the number of agencies involved, the number of permits required, the time it takes for approval, the expense of the permits, and the reasonableness and number of conditions on the permits. These concerns can be at least partly remedied in a variety of ways.

Streamlining the Permit Process

Streamlining is now a state directive under AB 884, which requires standardized procedures and strict time limits for state permits. Accomplishing this mandate will take some time and quite a bit of creativity. Several handbooks which describe successful techniques, such as a common application form and a one-stop permit center, are available on the subject (Vranicar etal . 1980; Bosselman etal . 1976).

Inter-agency Communication

Permit administrators need to meet and confer on mutual concerns more often. When the "bureaucrats" remain faceless to one another, the rapport necessary to make the system flow smoothly does not usually develop. Obtaining organizational charts and permit-processing flow charts of each agency can improve one's understanding of how each agency functions (theoretically, at least). Informal or formal inter-agency agreements may also facilitate permit review responsibilities, by coordinating field inspections, consolidating data-collection efforts, and strengthening enforcement, for example.

Intra-agency Communication

Any agency employee knows how frustratingly difficult it often is to adequately communicate within one's organization. Large, decentralized agencies, such as DFG, must especially learn to bridge the communication gap, or else biologists, enforcement officers, engineers, planners, and environmental specialists may end up working at cross-purposes. Despite problems inherent to the structure of governmental institutions, there are means of overcoming internal inertia (Downs 1967; Henning 1974).

Re-evaluating the Rules

Cleaning up the language of regulation goes a long way toward making friends, or at least fewer enemies. The CE learned this lesson in its "Section 404" program, which started out using unintelligible jargon but later switched to simpler terms and diagrams. One cannot expect people to comply with all the rules if they cannot understand them.

Rectifying the Underlap

The lack of authority or responsibility to protect certain riparian resources remains a problem. Concerned citizens may look at tables 3 and 4 and conclude that more regulations are definitely needed, especially to prevent the removal of riparian vegetation. Several options are recommended.

Expand the Scope of Existing Regulations

Instead of creating a new agency or commission, it would seem more prudent to expand the authority of the present regulators to cover the jurisdictional gaps. This could be accomplished by either adding new objectives or extending the jurisdiction of an agency. For instance, a state mandate to protect riparian vegetation could be assigned to the DF. While its current scope is limited to commercial tree species or the stream protection zone associated with a timber harvest plan, DF authority could be expanded to control all vegetation removal in the riparian zone. At the local level, existing zoning and grading ordinances could be amended as shown in tables 3 and 4.

Create Incentives

Like legislating morality, the establishment of regulations which are not supportable or realistic is doomed to failure. The requirement to fence streams from grazing livestock, as proposed in the DFG model riparian ordinance, is one such example. Even if a rancher is sympathetic, he may be unable to afford the cost of the fencing, if he is typical of most land-rich but cashpoor ranchers in rural California. Instead, concerned citizens and government should encourage the use of cost-share programs (e.g., California Forest Improvement Program, Agricultural Conservation Program) to help get the job done. We must remember that the purpose of environmental programs is not to penalize people but to protect resources. When regulations will not work, incentives may be the answer.

Use-Performance Standards

Environmental performance standards attempt "to preserve or maintain the natural performance

of the land already there", as opposed to controlling man-made features (Thurow etal . 1975). They are an improvement over traditional zoning by providing more equity in land controls and reducing the administrative problems of ordinances. As the result, impacts on the riparian system from both on- and offsite sources may be more successfully mitigated.

Conclusions

Yes, riparian regulations are random. They have evolved from many different sources for a variety of purposes and have followed no master plan. Not all of the resources associated with the riparian zone are protected by governmental controls. Riparian regulations are also redundant, however. They overlap in both permit authorities and regulatory objectives, with some project activities requiring as many as five permits. Whether riparian regulations are rational or not depends upon one's perspective and expectations. Certainly improvements can be made in the present regulatory system to assist both the regulators and those regulated.

This analysis is not intended to be a comprehensive examination of riparian regulations. It is intended to stimulate a greater understanding of how we can make the regulatory process work to meet its real purpose—not to kill the patient but to keep it healthy.

Literature Cited

Bosselman, Fred, D. Feurer, and C. Siemon. 1976. The permit explosion: coordination of the proliferation. 86 p. Urban Land Institute, Washington, D.C.

California Department of Fish and Game. 1980. Model riparian ordinance. 6 p. Region 3, Yountville. Unpublished.

California Office of Planning and Research. 1980. California permit handbook. 270 p. California Office of Planning and Research, Sacramento.

Downs, Anthony. 1967. Inside bureaucracy. 292 p. Little, Brown, and Company, Boston, Mass.

Henning, Daniel H. 1974. The environmental administative process. p. 36–52. In : Environmental policy and administration. 205 p. American Elsevier Company, New York, N.Y.

International Conference of Building Officials. 1979. Uniform Building Code. 734 p. I.C.B.O., Whittier, Calif.

Jones, Bruce. 1983. A state mandate for riparian wetland system preservation. In : R.E. Warner and K.M. Hendrix (ed.). California Riparian Systems. [University of California, Davis, September 17–19, 1981]. University of California Press, Berkeley.

Kramer, John. 1981. Is there a national interest in wetlands: the Section 404 experience. In : R.E. Warner and K.M. Hendrix (ed.). California Riparian Systems. [University of California, Davis, September 17–19, 1981]. University of California Press, Berkeley.

Kusler, Jon A. 1978. Regulating critical riparian lands: a challenge in intergovernmental cooperation. p. 332–335. In : R.R. Johnson and J.F. McCormick (ed.). Strategies for the protection and management of floodplain wetlands and other riparian ecosystems. [Callaway Gardens, Georgia, December 11–13, 1978]. USDA Forest Service GTR-WO-12. Washington, D.C. 410 p.

Sommarstrom, Sari. In press. Local-state coordination for gravel management in spawning streams. In : Proceedings of the symposium on habitat disturbance and recovery. [San Luis Obispo, Calif., January 29, 1981.] California Trout, San Francisco, Calif.

Smith, Felix. 1981. The Clean Water Acts and the principles of the public trust doctrine: a discussion. In : R.E. Warner and K.M. Hendrix (ed.). California Riparian Systems. [University of California, Davis, September 17–19, 1981.] University of California Press, Berkeley.

Thurow, Charles, W. Toner, and D. Erley. 1975. Streams and creeks. p. 7–20. In : Performance controls for sensitive lands: a practical guide for local administrators. Planning Advisory Service Report Nos. 307, 308. 156 p. American Society of Planning Officials, Chicago, Ill.

Vranicar, John, W. Sanders, and D. Mosena. 1980. Streamlining land use regulations: a guidebook for local governments. 74 p. US Department of Housing and Urban Development, Washington, D.C.

Protection of Riparian Systems in an Anti-Regulatory Era^[1]

Gary Weatherford, Barbara Andrews, and Kim Malcolm^[2]

Abstract.—The twin objectives of this paper are to speculate about the longevity of the present "anti-regulatory era" and its effect on current efforts to protect riparian systems. We conclude that the legal and institutional means for riparian protection will not be lost—if sound strategies for their maintenance and expansion are developed and efforts to popularize riparian values can be increased.

The Anti-Regulatory Fix

Political Trends and Implications for Future Legal Tools

The political environment of the 1980s may be changing the scope and nature of governmental policies related to environmental protection. For those concerned with the preservation and rehabilitation of riparian systems, the current political mood elicits two major questions. First, what will future attitudes of the public be with respect to environmental management? The anti-regulatory sentiment may be ephemeral or enduring; the current administration's objectives may have short-term or long-term effects. Second, what impact will these attitudes have on programs and regulations in the area of riparian system protection? The pace and extent of future changes will depend on a variety of legal and institutional considerations.

This paper explores ways in which the current anti-regulatory mood may affect future policies for protecting riparian systems at the federal, state, and local levels. We review generally how various legal tools have been and may be used in pursuit of riparian protection, against a backdrop of a number of possible political futures. We conclude by speculating as to the political environment over the next decade and offering some strategies for maintaining or expanding current efforts at riparian protection.

Current Status of the Anti-Regulatory Movement

Political attitudes that will affect environmental policies are changing at all levels of government; the change is perhaps most visible at the federal level. The Reagan administration is seeking to eliminate many regulatory controls, to champion private sector interests, and to cut budgets by cutting programs. Secretary of the Interior Watt is pressing for mineral development in wilderness areas, an end to additional national park acquisitions, and the relaxation of fish and wildlife conservation policies (Mosher 1981). Already caught in the net of regulatory review are the Fish and Wildlife Coordination Act, the Endangered Species Act, and the US Army Corps of Engineers Section 404 permitting system for dredging and filling.^[3]

Perhaps the clearest expression of anti-regulatory sentiment by the administration thus far is Executive Order 12291,^[4] which requires new regulations to be subjected to cost: benefit analysis. This analytical technique has aroused a great deal of controversy in recent years, because its method of use is not standardized and its use cannot address conditions of uncertainty or redistributive effects.^[5] Environmental programs and regulations could be jeopardized by the requirement because environmental values frequently defy quantification, which is the basis for

[1] Paper presented at the California Riparian Systems Conference. [University of California, Davis, September 17–19, 1981].

[2] Gary Weatherford is Director, Water Management Program, and Barbara Andrews and Kim Malcolm are Research Assistants; all are at the Center for Natural Resource Studies, Berkeley, Calif.

[3] Remarks of Vice President George Bush from a press release on regulatory relief, August 12, 1981.

[4] Executive Order No. 12291, Weekly Compilation of Presidential Documents 121–126. February 23, 1981.

[5] See Rodgers, W.H., Jr. Benefits, Costs, and Risks: Oversight of Health and Environmental Decisionmaking. Harvard Environmental Law Rev. 4:191.

cost: benefit analysis. The benefit side of environmental protection often accrues to future generations. Many environmental values are aesthetic or recreational and are therefore personal and subjectively determined. Further, many benefits of environmental programs are extremely difficult to isolate for purposes of measurement.

Besides the requirement for cost:benefit analysis, the executive order deals another possible blow to environmental policymaking by limiting public participation and access to information (Eads 1981). Soliciting public involvement in environmental policymaking has been important to efforts aimed at environmental protection, because often the economic incentives which promote the formation of special interest lobbies in other issue areas are absent.

It is difficult to gauge how this executive order will affect particular policies or regulations at this early date. The courts have thus far hesitated to impose rigorous cost:benefit requirements on environmental and health concerns (Miller etal . 1981). Many federal policies aimed at protecting riparian systems take the form of legislated programs, and the abolition of such programs will test the administration's ability to build consensus in Congress. The impact of the executive order by itself may be limited, but it is illustrative of the changing attitudes toward governmental involvement in environmental affairs, and how such attitudes may become institutionalized.

In this political context, a focus on efficiency and market values may determine the degree to which private lands are managed and public lands are managed properly. Programs aimed at protecting riparian systems may be particularly vulnerable because they often place restrictions on the use of private property. Decreasing budget outlays for managing public lands and promises by the "sagebrush rebellion" for stepped up exploitation of mineral resources in the West will also take their toll. Further, riparian issues may not have attained a high enough ranking in governmental priorities. They had not commanded the visibility of other environmental concerns, such as air quality, nor had they acquired strong public support or a well-established constituency by the time pro-environmental sentiment crested in the late 1970s. With the greater interest in private property, only the most compelling environmental values are going to gain and retain governmental support at the federal level.

On the other hand, the bark of current politicial attitudes may be worse than its bite. Anti-regulatory rhetoric is a symbolic expression of a broader political debate, and the actual implementation of decontrol policies may be limited. Notwithstanding the political mood in Washington, the scope of environmental protection will depend on longer-term social values. On the positive side, many environmental concerns are already institutionalized and protected by statutes and judicial review. Furthermore, most Americans have recognized the need for environmental protection and accepted government's inherent role in that undertaking. Riparian issues are public-interest issues which will be of increasing concern as the intensity of land and water resource management increases.

In the nearer-term, the Reagan administration may be, in many cases, hitting its head against the wall of a resistant federal bureaucracy. The federal government is not, by and large, inclined to rapid or dramatic change: "incrementalism" used to be defined as "last year's budget plus 10%;" since January, 1981, it has been redefined as "last year's budget minus 10%." After policy decisions have been made, implementation is usually slow and affected by pre-existing agency objectives and viewpoints. No matter how lasting the anti-regulatory fervor is generally, one can still expect anomalies. Some areas will escape regulatory scrutiny during this period because they are not highly politicized. In fact, the specific issue of "decontrol" may not even apply to riparian protection, since the existing regulatory controls are so few, and are, in some cases, indirect.

To the extent that the current administration is successful in narrowing the role of the federal government in environmental policy, environmental quality will depend on the activities of the private sector and lower levels of government. Such a situation carries with it some problems. In the case of local jurisdictions, regionwide problems need to be addressed by the coordinated efforts of many governmental bodies, since a single agency has no incentive to subsidize another by paying for solutions to problems of the larger area. State and local governments are also inhibited by budget cutbacks and decreased federal funding. Similarly, private sector interests are not likely to internalize the costs of environmental protection voluntarily in cases where private activities produce costs to the larger community. In spite of the difficulties associated with the programs at lower levels of government and with private voluntary action, there will be important areas that will have to be addressed by programs that are not federally sponsored.

Available Legal Tools for Riparian Protection

Future political attitudes will determine not only who will be doing the protecting, but which legal tools will be used as well. Broadly speaking, the legal tools for riparian protection can be grouped under three headings: 1) public ownership and management; 2) public regulation and subsidy; and 3) private controls and voluntary cooperation. We will first survey the legal tools, existing and contemplated. We will then speculate as to their relative roles and utility in a variety of political settings.

Public Ownership and Management

The fullest range of protection is generally provided by public ownership of the riparian zone—if the capabilities and resources of the governmental agency involved are adequate, and provided that the agency's objectives correspond to its statutory duties. Lawful public agency actions along publicly owned riparian corridors have done their share of damage in the past.

With respect to public lands, enabling legislation usually provides administering agencies with ample legal authority to protect riparian values, although conflicting "multiple purpose" mandates in statutes and regulations can and do compromise riparian protection in practice. Specific riparian protection guidelines for planning and on-the-ground activities can be found in the manuals of the various land management agencies.^[6]

Ownership interests in hitherto private lands acquired by the government (acquired lands) generally involve the same implicit legal authority for managing riparian areas that exists for public lands. The interest acquired can be a fee title or an easement, whether negative or affirmative. The acquisition may be through negotiated purchase, donation or dedication by gift, or condemnation (eminent domain). The purchase or condemnation of all types of easements has proven to be very costly, approaching the full fee value of the land in many cases.

Public Regulation and Subsidy

Governmental constraints and incentives directed at private landowners may be designed to prevent or halt harmful practices or to promote helpful practices. Carrots and sticks frequently appear together in government programs. They may be used by any level of government. Regulation can take many forms, but usually requires permits as a pre-condition to activities, such as removal of trees, which might disturb riparian values. The regulatory scheme can control single elements of the riparian system, such as species protection (e.g., the Endangered Species Act), stream alteration (e.g., Section 1601 etseq ., California Fish and Game Code), or timber harvesting in streamside zones (e.g., California Administrative Code, Title 14, Article 6, Stream and Lake Protection, Coast Forest District). Or it can control general impacts or changes in critical areas (e.g., permit systems of coastal management programs, such as the State of Washington's Shoreline Management Act of 1971 or California Coastal Act of 1976).

The open space elements of general plans, zoning regulations, erosion and drainage control ordinances, and other development controls of local government can offer different levels of riparian protection, usually in terms of streamside set-backs, zones in which the drainage pattern, soil, and vegetation are not to be disturbed. Mitigation measures, including the rehabilitation of riparian values, can be required as permit conditions in land-use development approvals. The disclosure and analysis of potential impacts, as legally required by environmental impact reports, statements, or assessments, is an important phase of both development and protection.

Subsidy can take many forms. Income tax deductions for the donation of perpetual conservation easements to governments or qualified nonprofit organizations, such as the Nature Conservancy, are popular (e.g., Internal Revenue Code, Section 170). Property tax reductions, through favorable assessment policies or reassessment after development values have been donated in conservation easements, can provide an incentive for protecting riparian areas. Cash payment to landowners to encourage certain land and water management practices is another approach that has been adopted, partially to provide an offset for economic losses resulting from not cultivating certain areas (e.g., USDA Agricultural Conservation Program, Rural Clean Water Program, and Water Bank Program). Technical advice and assistance to landowners concerning on-the-ground practices can be offered as part of such cash benefits or cost-sharing programs, or may be provided independently of them.

Private Controls and Voluntary Cooperation

Land-use restrictions aimed at protecting riparian systems can be applied in covenants running with the land, as part of grant deeds which are enforceable by other local property owners. In practice, these private controls are often prompted by public agency pressure. Private initiative can also take the form of riparian protection associations of landowners and interested persons, possibly with contractual commitments to preservation objectives.

Private legal action, under nuisance or trespass theories, can enjoin or restrain some practices having adverse effects on riparian zones, for example those producing increased sedimentation. Private interests and organizations are also turning to the Public Trust Doctrine for broader protective rulings by the courts.^[7]

Finally, private associations such as the Nature Conservancy and the Trust for Public Lands provide legal information and assistance for a variety of land-use activities. They are also important fund-raisers for the private purchase and management of environmentally significant lands.

[6] See, for example, USDA Forest Service Manual, Title 2500, Watershed Management and USDI Bureau of Land Management Manual, Section 6740, Wetland-Riparian Protection and Management.

[7] See Public Trust Doctrine in natural resources law and management: A Symposium. UCD Law Rev. 14.

Future Scenarios and the Legal Tools for Riparian Protection

Which of these various legal mechanisms are used, by whom, and to what extent will be determined by social, political, and economic environments. The following presents a number of possible future scenarios which range from greatly diminished to very high levels of governmental activity. It also discusses the types of legal tools most likely to be used for riparian protection in each of the alternate futures.

Dysfunctional Bureaucracy

In this scenario, federal agencies would experience heightened levels of internal conflict, resulting from unclear political conditions and agency responsibilities, coupled with a greatly diminished role of government. In the absence of a capable bureaucracy, management and protection of publicly owned riparian corridors would be ineffective. A highly deregulated condition would permit uncontrolled manipulation of privately owned lands. Under these conditions, courts would not be useful institutions for the enforcement of public or private arrangements aimed at environmental protection. Some private efforts might be undertaken to protect particular riparian areas, but little could be accomplished without some area-wide coordination and general public concern.

Despite such dire predictions, over the next ten years the absence of a government concerned with protecting the natural resource base is unlikely.

Low Bureaucracy

This situation would present major long-term reductions in governmental programming and personnel, which would curtail public resource management. Regulatory tools would not be as reliable as previously, and public apathy would reinforce government non-interference. New public acquisitions of riparian areas would be rare. Regulations and guidelines would be either revoked or discounted. Efforts to encourage the exploitation of natural resources for economic reasons would aggravate environmental conditions spawned by neglect. And technical assistance and cost-sharing, even though designed to strengthen private control and management, would probably be viewed as too intrusive and as requiring too much bureaucracy in this laissez-faire state. The most appropriate management tools would be tax loopholes and private covenants. Supporting revenue services and courts, necessary for the employment of these tools, would be maintained.

This condition of governmental non-involvement in environmental protection would probably only be reversed in the case of an environmental health crisis, bringing about a public reaction and a re-establishment of public confidence in government's role in the protection of natural systems. Subsequent clean-up efforts and the reestablishment of a bureaucracy to undertake those efforts would be very costly.

Moderate Bureaucracy

In this scenario, current levels of government programming would be sustained though not expanded. Fiscal conservatism would limit attention to environmental protection at all levels of government, although some state and local efforts might be developed. In general, new public acquisitions of riparian areas would be very selective. Field personnel in resource management would be overextended and unable to implement management guidelines or enforce regulations to the degree intended in the statutes and programs. But the guidelines and regulations for public lands and for a few privately owned critical areas, such as coastal zones, would be retained. Tax incentives for conservation easements would continue. Cost-sharing and technical assistance would remain authorized, but underfunded. Effective local government ordinances for riparian protection would be the exception rather than the rule in the near term, but could finally prevail under this scenario.

Private covenants and initiatives could increase; the environmental lobby could marginally stimulate more private action in response to the decline in government spending and programming. The extent of decreased governmental activity would depend mostly on the economic effects resulting from environmental degradation. Damage to private property by polluters or developers would inspire legal action and political pressure driving government at all levels toward renewed efforts at environmental protection.

High Bureaucracy Scenario

This scenario indicates a higher degree of both public ownership and regulation than presently exists, or has ever existed in peacetime in this country. It could mean national economic planning and/or the nationalization of certain private property interests. Or it could be an evolutionary growth in public ownership and public regulation, while retaining the mixed economy mode. Whether privately owned riparian corridors would ever be as highly placed on the public acquisition agenda as other productive elements of the economy is doubtful. However, an expansion of the public ownership of riparian corridors over today's baseline could probably be expected. Increased police power regulation of private property would be permitted. Private covenants would diminish in importance, but some private initiatives to bring selective pressure to bear on bureaucracies probably would persist. In short, riparian values would probably, but not necessarily, be better protected than they are today, but the price paid in other legitimate values might be high.

Future Strategies for Riparian Protection in an Anti-Regulatory Era

Anti-regulatory sentiment will manifest itself as a coat of many colors in the coming decades. Although we cannot predict precisely what the outcomes will be, it would be naive to assume that the regulatory approach will not be relaxed at least to some extent. Advocates of riparian protection must reassess institutional options in light of this likelihood and carefully choose the most effective tools to fit the prevailing anti-regulatory mood.

In a broad sense, advocates of riparian systems will have to adjust their tactics to a growing emphasis on the private sector. Within the public sector, state and local governments will become more important relative to the federal level. As regulations and compliance programs are cut, other mechanisms such as ownership, planning and technical assistance, education and political activity, and reliance on private economic incentives, will emerge to advance environmental goals. Finally, as the political branches of government respond to anti-regulatory sentiment, the courts will provide a forum for the defense of riparian values according to sources of law which are beyond the power of the agencies and legislatures to change.

The burden of riparian protection will fall on advocates in both the public and private sectors. Proponents in government should focus first on preserving existing programs to the extent possible. In those areas targeted for special anti-regulatory scrutiny, such as California's coastal zone program and the dredge-and-fill permit system under Section 404 of the Clean Water Act, agencies should concentrate on streamlining regulations and coordinating programs on an agency-specific or interagency basis. If anti-regulatory sentiment remains high, agencies should identify the most critical environmental problems and assign priorities to their protective agendas accordingly. In addition, agencies may, on their own or with legislative assistance, adopt alternative techniques, such as effluent taxes and pollution marketing systems, to achieve standards in a manner more palatable to regulated industry.

Advocates of governmental protection will have to resort to techniques not directly associated with controversial regulatory programs. For example, they could try to achieve regulation through other channels such as litigation: government attorneys could bring public nuisance suits to enjoin private interferences with navigable waters and could advance the Public Trust Doctrine to restrain or revoke governmental authorizations of uses of water and development in riparian areas.^[7] Another important tool will be state water rights administrations. Although regulatory in effect, these agencies are fundamentally intact and the major arbiters for private property rights in western waters. The California State Water Resources Control Board, provided it remains sufficiently isolated from the politics of anti-regulation, could administer its statutory and constitutional mandates to deny, or to protectively condition or modify permits to appropriate water and acquire existing water rights.^[8]

Advocates of protection within government will have to intensify their efforts outside of the regulatory rubric altogether. Ownership is one option. The purchase of land or of easements in land, as well as the appropriation or condemnation of water rights, could all be used to protect instream flows and riparian systems. A major obstacle will be cost. State or federal reliance on the "navigation servitude" could avoid the constitutional duty to compensate in some cases, but future courts may construe the doctrine strictly against the government.^[9] The federal government and native American tribes could assert potentially extensive ownership claims under the Reserved Rights Doctrine, but here again, successful court challenges could be a significant long-term impediment.^[10] Political resistance will also dampen the urge to press reserved rights claims in over-appropriated streams, at least where federal lands, as opposed to Indian reservations, are involved.

To the extent that agency budgets and political opposition thwart the ownership solution, advocates of protection should promote government functions in an array of nonregulatory roles. These roles could include planning and setting guidelines for riparian systems, coordinating public and private protective efforts, collecting data and inventorying uses, promoting innovative management schemes, encouraging conservation and mitigation, offering grants-in-aid to accomplish environmental goals, and instituting economic incentives toward voluntary compliance with protective policies. In some cases, these roles will be merely educational. In others, they will have a more or less coercive effect, particularly if grants and incentives are conditioned upon the adoption of regulatory standards or management plans. Tax breaks will constitute an important noncoercive form of incentive, as will the repeal of current code provisions such as the investment tax credit, which serve to encourage development in riparian areas.

[8] For an overview of these possibilities, see Schneider (1978).

[9] For the most recent U.S. Supreme Court case in this area, see Kaiser Aetna v. United States , 444 U.S. 164 (1979). One commentator remarks that "(t)his case may mark the beginning of judicially imposed limitations on the servitude which has been "an almost impregnable doctrine under the shelter of the commerce clause" (Stevens 1980).

[10] See, e.g., United States v. New Mexico , 438 U.S. 496 (1978), which denied reserved rights for instream flow purposes on the Gila National Forest in New Mexico.

As the public sector abandons existing programs or fails to advocate protective policies, private interests will become the focal point of riparian system protection efforts. Private advocates will be faced with a number of tasks—encouraging their public allies in the strategies just described, forcing agency response when it is not internally prompted, lobbying for legislative change, and promoting voluntary efforts throughout the private sector.

To the extent that political pressure does not cause government to act, litigation and voluntary efforts will become the critical tools in the environmental arsenal. Litigation may be undertaken against private individuals and organizations for violations of property or contract rights or on tort theories of nuisance and trespass, and against government on constitutional grounds on principles of administrative law or for violations of emerging doctrines such as the Public Trust.

In conjunction with such efforts, private interests could form protective arrangements such as land trusts, encourage financial donations and protective actions by industry and land developers, instigate negotiated solutions and compliance programs among riparian users, and forge cooperative schemes with local governments, special districts, planning commissions, and the states.

The disadvantages of private action are well known. Litigation is protracted and its results are too often spotty. Voluntary efforts are difficult to achieve and, once arranged, are of highly uncertain duration and scope. At the same time, if "grass roots" has a meaning in the context of the American political system, it is that action initiated from below can stand on a surer footing than that imposed from above. It is to this prospect that advocates of riparian protection in the private sector must direct their energies. Within the framework of a mature, yet evolving environmental movement, the techniques of the past must be fine-tuned into a strategy for a substantially different future.

Conclusion

We are facing a period of political uncertainty which could be of tremendous consequence to riparian systems. In this setting, different political orientations and moods will accommodate different groupings of legal tools and make some legal approaches more promising than others. At the same time, there may be a tendency on the part of conservationists to promote all legal tools for all purposes at all times.

In practice, however, the struggle to preserve and extend available protective tools must express itself mostly in case-by-case encounters, according to the financial resources, public and media support, and political opportunities at hand. The key to future success is strategy. Selectivity, ingenuity, persistence, and carefully ordered priorities are all indispensable ingredients. In a future dominated by regulatory restraint, protectors of riparian values will have to be quick-witted and tenacious, capable of seizing essential opportunities and adapting to unforeseen change and adverse conditions.

In the final analysis, whatever the political climate, riparian protection needs to become a more visible issue, commanding a greater sense of social responsibility than is currently the case. Political systems and responses can be nurtured under which contemporary and future generations of biological communities will live in health, with a minimum of harsh tradeoffs between economic and environmental values. It is crucial that, amidst the recurring shifts in political fashion, of which the present anti-regulatory fix is one, natural systems be maintained to the greatest possible extent, to preserve flexibility in the availability of resources and in biological options for the future.

Literature Cited

Eads, George. 1981. Harnessing regulation: The evolving role of White House oversight. Regulation (May/June):19–26.

Miller, Taylor, Lisa Chang, and Gary Weatherford. 1981. Risk assessment and regulation: Federal statutory background. Center for Natural Resource Studies, Berkeley, Calif.

Mosher, Lawrence. 1981. Reagan and the GOP are riding the sagebrush rebellion. National Journal (March 21):476–481.

Schneider, A. 1978. Legal aspects of instream water uses in California: Background and issues. Staff Paper No. 6; Governor's Commission to Review California Water Rights Law, State of California, Sacramento.

Stevens, J. 1980. The public trust: A sovereign's ancient prerogative becomes the people's environmental right. UC Davis Law Rev. 14(68):195–209.