Legal and administrative inventory

[From the U.S. Government Printing Office, www.gpo.gov]

VV V

Coastal Zone
Information
Center

CV044W*rA* 90AW

COASTAL ZONE
IWORMATION CUTER
FEB 0 1977

Indiana State PlanNng Services Agency Lt. Governor Robert D. Orr, Director .143 West Market Street, Indianapolis, Indiana 46204

HC
107 off
.16 1
148 N9M.
1976
no. 105
c.2
A&A& AhAhAh AbAbAb

MAMAS

LEGAL AND ADMINISTRATIVE
INVENTORY

Technical Report 105

--9
LEGAL AND ADMINISTRATIVE
INVENTO@/
Technical Report 105

Prepared By:

Eugene M. Feingold
Munster, Indiana 46321
Legal Consultant

September, 1976

Submitted To:

Indiana State Planning Services Agency
Lieutenant Governor Robert D. Orr, Director
T. "Ted" Pantazis, Executive Director
Third Floor Harrison Building
143 West Market Street
Indianapolis, Indiana 46204

The preparation of this report was financed in
part through a comprehensive planning grant from
,the National Oceanic and Atmospheric Administration
of the United State Department of Commerce.

A C K N 0 W L E D G E M E N T S

This report was prepared during the summer of 1976

with the help and assistance of Stephen D. Ring and Thomas R.

Wilhelmy, second year students at the University of Chicago

Law School. They were dedicated, disciplined and enthusiastic

in their research, and I appreciate their efforts.

T. Te'd Pantazis, Executive Director of the State

Planning Services Agency, offered constant encouragement

to our phase of the program. T. Russell Miller and Sue Miller,

Principal Planners of the Indiana Coastal Zone Management

Program, were understanding of our pro blems, constructively

critical of our material, and always available to us for

consultation in the assembly of this work product. Represent-

atives of the Indiana Department of Natural Resources and

State Board of Hea lth gave us insight into their present

problems and concerns.

I am indebted to my secretary, Mrs. Elizabeth M. Jackman,

for the time and energy she unhesitantly devoted to the p ro-

duction of this material.

Lastly, I give special thanks to my wife Rosalind,

and my,daughters, Leslie and Susan, for their thoughtful

understan ding of my us e of their time to complete this project.

Eugene M. Feingold

October 1, 1976

THE INDIANA COASTAL ZONE
MANAGEMENT PROGRAM

A Legal Inventory of
Applicable.Indiana and Federal Law

Table of Contents

Page

I.- INTRODUCTION

Ii. SUMMARY OF REPORT 3

III. COASTAL ZONE MANAGEMENT ACT OF 1972
Declaration and Definitions 18

IV. PRIVATE PROPERTY RIGHTS: 20

A. Rip arian Rights Definition 20
B. Riparian Rights In Flowing Water 21

1. Natural Flow vs. Reasonable
Use Theories 22

2. Use for Domestic Purposes 22

31. -Use for Non-domestic Purposes 23

-Pollution by Riparians 24

5. Pollution by Municipality 25

Damming and Diverting Waters 27

7. Obstructions 28

8. Use of Water as Power 29

9. Fishing 29
C. Ripari*an Rights In Beds of Waters 30

1. General 30

2. Non-navigable Rivers and Streams 30

Page

3. Meander lands and Bed Ownership
Problems 30

D. Federal Legislation Re: Riparians 34

1. Establishment of Harbor Lines 34

2. Deflection of Current 36

3. The Submerged Lands Act 36

E. State Legislation Re: Riparians 37

1. Lake Michigan Lands 37

2. Water for Domestic Purposes
and Irrigation 37

3. Diversion-.'of Floodwaters 38

4. Piers, Wharves and Docks 38

5. Mills 39

6. Gates at River Banks 39

V. INTER-RELATION OF PRIVATE AND PUBLIC
PROPERTY RIGHTS: 40

A. Navigable Waters 40

1. Navigability and its Meaning 40

2. Federal Power in Navigable
Waters 41

3. State Power in Navigable
Waters 42

B. Riparian Rights in Navigable
Waters 44

C. Accretions 48

1. Introduction 48

2. Rationale 49

3. Choice of Law 50

4. The Bonelli Cattle Company
Case 52

Page

5. Accretion vs. Re-emergence 56

6. Artificial Influences and
Other Responses 57

7.1 The_Righ't to Accretion
from Dredging or Filling 59

D. Navigation Servitude 60

1. Definition and Rationale 60

2. Waters Affected 61

3. Application of Doctrine to
States 62

4. Physical Limitations 62

5. Limitation on Compensation
for Taking Adjacent Properties 63

6. Section 595a - Relief for
the Condemnee 63

7. Examples of No Compensation 65

E. The Michigan City Harbor Case:
The Riparian and the Naviga-
tion Servitude 65

1. Generally 65

2.- The Michigan City Harbor
Structures 66

.3. Interim and Proposed Shore
Construction - Who Has the
Right to What 67
4. Legal Matters 68
VI. P@UBII'C PROPERTY RIGHTS: .73

A. Public*Trust Doctrine 73
1 The Histor ical Background 73

2. Application to Great Lakes
States 75

3. The Illinois Central Railroad
Case 77

Page

4. Is the Doctrine a Local
Property Issue? 80

5. The Doctrine in Indiana 81

6. Uses Approved in Public Trust
Doctrine States 87

7. -.The Lake Michigan Fill Statute 91

8.@ A Final Thought 95

B. Indiana Legislation and Related
Materials 97

1.,.Policy Statement on Natural.
Res.ources 97

2. Authority and Powers: 98

a. Power to Declare Water
Course Navigable 98

b. Authority Over State Owned
Lands Bordering on Lakes
and Streams 98

c. Powers of the Department
of Natural Resources
Relating to Land and Waters
In General 99

d. DNR - Party toAll Legal
Actions 99

e. DNR - Flood and Surface
Waters 100

f. DNR - Power to Sell Water 100

g. DNR -Authority to
Establish Average Normal
Water Level 100

h. Public Highway Department
Drains and Water Courses
Affecting Highways 100

Page

i. Authority of Governmental
Unit to Purchase State
Land Bordering on Lakes
and Streams 101

j. DNR - Authority to Devebp
Comprehensive Plan 101

k. DNR - Control Over Potable
Water 101

1. DNR - Fishing Areas in
Indiana Port 102

M. DNR - Flood Plain Commission
Power 102

n. DNR - Channels and Streams
and Rivers @ 102

0. Authority for Water
Resources Research 103

Power of Cities and Towns
Over Water Courses and
Their Banks 103

3. Regulatory Legislation 103

a. Prohibition on Unlawful
Disposal of Refuse 103

Prohibition Against Corpora-
tion Obstructing Navigable
Stream 104

c.' Prohibition Against Person
Obstructing Stream or
Watercourse 104

d. Prohibition of Construction
of Channel 104

e. Prohibition Against Certain
Ditches and Drains. 104

f. Crimes Against Property 105

Page

VII. SPECIFIC AREAS OF PUBLIC CONCERN 106

A.. Flood Control and Prevention 106

1. Federal Flood Control Act 106

2. National Flood Insurance
Program 109

3. Water Resources Planning Act 113

4. State Legislation Concerning
Flood@Control 113

5. Indiana Flood Control Act 117

B. Erosion Control 120

.1. Federal Legislation Concerning
Erosion Control 120

2.' State Legislation Concerning
Erosion Control 124

C." Harbor and Water Related
Construction 125

1. Federal Legislation 125

2. State Legislation and Related
Materials 131

D. Dredging, Filling and Extraction 133

1. Federal Matters 133

2. State Matters 138

E. Water Levels 140

1. Ordinary High Water Mark A
Search for Definitions 140

2. Great Lakes Water Levels The
International Joint Commission
- of the United States and
Canada 142

a. Generally 142

vi..

Page

b. Recent Problems, Actions
and Proposals 144

C. Recommendations for the
Future 145

VIII. GOVERNMENTAL AND REGULATORY JURISDICTIONS
WITHIN THE COASTAL ZONE 148

A. State and Federal 148

B.' Local An Introduction 148

C. Local Formation of County,
City or Town 149

D. Local Government Some Specific
Authorities 150

.1. Annexation 150

2. Sewers, Sewage and Waste
Disposal 151

3. Powers to Regulate 153

E. Home Rule 155

1. Cities 155

2. Legislative Grant and Not
Constitutional Amendment 157

3. Counties 158

4. Court Decisions 159

F. Zoning and Subdivision Control 161

1. The Zoning Power - Generally 161

2. Enabling Legislation 162

3.*.Other Planning and Zoning
Authority 164

vii-'

Page

IX.. PLANNING - THE REGIONAL CONCEPTS 168

A. 'The Regional Planning Commissions 168

B. State Planning Services Agency 170

C. State Planning ,Under Federal
Water Pollution Control Act
Amendments 172

X. JURDISCTION AND LEGISLATION RELATING TO
COASTAL ZONE 179

A. Introduction to Topical Discussion 179

B. -Energy 181

1. Federal Energy Reorganization Act.-.182

2. Federal Eriergy Administration
Act of 1974 184

3. The Federal Power Commission
and the Licensing of Fossile
10C
Plants L U.J

4. Energy.Supply and Environ-
mental Coordination Act
of 1974 187

C.. Pollution and Waste 188

1. Clean Air Act of 1970 189

2. Developments Under the Clean
Air Act: Air Quality Maintenance
Areas and "Indirect Sources" 192

3. Developments Under the Clean
Air Act: Non-Deterioration 196

4. Federal Water Pollution Control
- Act Amendments of 1972 198

5. Area Wide Waste Treatment
Management Plans 201

6. Solid Waste Disposal Planning 202

viii

Page

7 Spills of Oil and other
Hazardous Substances 203

8.- Indiana Environmental
Managment Board; Indiana
Stream Pollution Control Board
and Indiana Air Pollution
Control Board 204

9. Illinois Indiana Air Pollution
Control.compact 210

D. Recreation and Conservation 211

1. Fish and Wildlife Acts of 1956 212

2. State Commercial Fis heries
Research a:nd Development
Projects 213
3. Anadromous and Great Lakes 214
Fisheries

4. Fish Restoration and Management
Projects 215

5. *Great Lakes Fisheries Act
of 1-956 216

6. Fish and Wildlife Coordination
Act 217

7. National Wildlife Refuge
System 219

8. Water Bank Program for Wetlands
Preservation 20

9. Endangered Species Act
of 1973 221

10. Marine Sanctuaries 223
11. outdoor Recreation Programs 224

12. Federal Water Project Recrea-
tion Act of, 1965 225

13. Indiana Fish and Wildlife Act 226

Page

E. shipping and Boating 228

1. Ports and Waterways Safety
Acts of 1972 229

2. Shoreline Erosion Demonstration
Act of 1974 231

3. Federal Boat Safety Act
of 1971 232

4. Great Lakes Pilotage Act
of 1960 233

F. Statutory Basis for Other Planning 234

1. Regional Planning 235

a. Demonstration Cities
and Metropolitan Develop.-
ment Act of 1966

.b. Intergovernmental Cooperation
Act of 1968 235

'c. HUD 701 Comprehensive.
Planning 236
d.' Housing and Community
Development Act of 1974 236

e. Federal Highway Act 236

f. Urban Mass Transportation.
Act 236

g. Public Works and Economic
Development Act 237

-2. National Environmental Policy
Act of 1969 (The Environmental
Impact Statement) 238

3. Planning by Department of Housing
and Urban Development 241

a. Comprehensive Planning
Authority 241

Page

b.- Open Space Land 242

c. Planned Area Widie
Development 243

d. The National Flood
Insurance Act 244

4. Water Resources Planning
Act 245

5. Indiana Regional Planning
Commissions 247

6. Department of Agriculture
Watershed Protection and Flood
Preven.tion Planning 249

Xi. FEDERAL AND STATE,AGENCY JURISDICTIONS 251

A. Listing 251

B. Federal Agencies 253

1. Coast Guard 254

2'. Council on IEnvironmental Quality 255

3. United States Fish and
Wildlife Service 256

4. 'National Oceanic and
Atmospheric Administration 257

5. National Marine Fisheries'
Service 258

6. Federal Maritime Commission;
Maritime Administration 259

C. State Agencies 260

1. Indiana Public Service
Commission 261

2. Recreational Development
Commission 262

X1.

Page

-XII. EMINENT DOMAIN 263

A. Federal Powers
263

1. Generally. 263

2. Navigation Purposes 265

3. Park Purposes.- Indiana Dunes
National Lakeshore 266

B. State and Local Condemnation Powers 267

1. General Eminent Domain Act 267

2. Special-Provisions 269

3. Administrative Proceedings 269

C. Public Utilities 270

XIII4. SPECIFIC ISSUES 272

A. Indiana Dunes State Park 272

B. The Indiana Dunes National Lakeshore .273

C. Power Plant Siting 277

1. Existing Conditions 277

2.@ Bailly Nuclear Plant 277

3. Future Siting of Power Plants 280

XIV. ANALYSIS AND CONCLUSION 283

INTRODUCTION

The State of Indiana shoreline runs along the southern

end of Lake Michigan from the Illinois border on the west

to the Michigan border on the east. Approximately forty-

three miles in length, it forms the northern boundary of Lake,

Porter, and a part of LaPorte counties. The shoreline moves

along the industrial cities of Hammond, East Chicago and

Gary eastward to Burns Harbor, and then on, past the Indiana

Dunes National Lakeshore and Indiana Dunes State Park to

Michigan City.. On a clear day, with only the naked eye,.

the entire shoreline and these contrasting uses can be seen

in bold relief.

Unlike some of our neighboring Great Lakes states,

there are no vast streEche's-of Indiana shoreline which are

undetermined as to future use. To a gifiE@'ater extent,*the

Indiana Lake Michigan shoreline is fully committed and utilized.

Federal, state, and local bodies exercise jurisdiction,

both,separately and co-extensively, over the land, air and

water resources of the Indiana Coastal Zone. Ou r effort is to

identify this jurisdiction, to state and expand upon applicable

legislation, both federal and state, and to discuss applicable

common law, case law and interpretations of significant legis-

lation. Not unlike the law as a whole, the area of law related

to the coastal zone is a "seamless web", embracing the exercise

and interplay of state power, of federal-power, of the rights

of the individual, the State and the United States as pro-

perty owners, and of the rights of Indiana citizens, as a

collective group. This Report will illustrate in several

areas the dynamism of this legal interplay of power, authority

and action.

Lastly, in Indiana, there has been little judicial

enlightenment in:certain significant areas of the-law

relating to the Coastal Zone. This is due either from a lack

of subject litigation or from-a failure of our-courts to

reach or consider subject issues. In particular, the com-

plicated problem of the "public trust" doctrine is relatively

devoid of judicial discussion and analysis in Indiana decisions.

SUMMARY OF REPORT

The Coastal Zone Management Act of 1972 declared that

it is the National Policy to preserve, protect, develop, and

where possible, to restore or enhance, the resources of the

nation's coastal zone for this and succeeding generations.

The coastal 'zone is to extend inland from the shorelines

only to the extent necessary to control shorelands, the uses

of which have a-direct-and signif icant-impact---on the coastal

waters, which include the Great Lakes area,. The State of

Indiana, acting through its. State Planning Services Agency,
is developing a: management program for the land and water

resources of its coastal zone. For study purposes, the Indiana

program has set the preliminary boundaries of the coastal

zone inland to,about the middle of Lake, Porter and LaPorte

Counties which border Lake Michigan and are within its

water shed.

PRIVATE PROPERTY RIGHTS:

Riparian rights is a common law doctrine describing

those rights to which the owner of a tract of land is entitled

as a consequence of bordering upon a body of water. Strictly

defined, riparian rights pertain to a river or stream and

littoral rights pertain to a lake, although the former is

generally used to encompass both.

Riparian rights deal with two general areas - rights

in the flowing water, and rights in the bed of the watercourse

or the submerged land.

The right of the riparian in the water as it flows by

his land is one of use and enjoyment. Prior right gives no

paramount right, and each riparian has an equal right to

the flow of the water through his land. An exception to

this general rule and unique to Indiana law is the rinciple
p

that the owner'of land upon which there is located a non-

navigable stream or lake owns and has the right to control
the surface of these waters."

In Indiana, the riparian has a right to the reasonable

use of the water as it flows by. This use may be for domestic

purposes, and if ava ilable in sufficient quantity, for non-

domestic purposes.

Pollution.by a riparian was held to be a nuisance, and

early authIoritywhich allowed municipalities to non-negligently

pollute a body of water was reversed early in this century by

a more enlightened judiciary. Federal and state water

pollution control acts now govern such matters.

Indiana has also considered the riparian's rights to

dam or divert water (yes, under limitations), to obstruct

the watercourse (no), to use the water as power (yes, with

limitations), and to fish (yes).

The riparian rights in beds of water or submerged lands

requires that a distinction be made between rivers and streams,

lakes and Lake Michigan, and that a futher distinction be made

between non-navigable and navigable waters.

In non-navigable@rivers and streams, the riparian is the

owner of the bed as far as the thread, or mid-point of the

stream. With respect bo@a-non-navigable inland lake, which

was originally surveyed and defined by meander lines which

run on dry la nd and approximate the boundary of the body of

water, the riparian owner was held to own the land beneath the

lake far enough beyond the meandered line at water's edge to
make out a full subdivision. The riparian owner s property

interest in the bed is determined by a straight line projection

of the congressional surveyor's lines, and'not by a pie-shaped

projection to the common law mid-point or thread of the lake.
Although criticizea'and"recognized to be contrary to common

law and the law of@most states, this law persists in Indiana.

Once the ownership of the bed of the non-navigable lake is

defined, Indiana courts hold that the owner owns from the

bed upward through the surface of the water as well as the

bed itself.

With respect to riparians, federal legislation authorizes

the Secretary of the Army to establish harbor lines to protect

harbors, and riparians may extend certain facilities from
their shore boundary outward to the harbor line. The

Secretary of the Army has a duty to see that improvements

placed in navigable waters do not cause damage to the

property of the'riparian'.

State law had given riparian owners of Lake Michigan

certain rights to fill in upon the submerged lands abutting

their property and acquiring title thereto. This law has

now been s, everly limited. The riparian's right.to the use

of flowing water for domestic purposes., and to impound water

by dam or stream are now codified, as are the rights of

riparians (and non-riparians) to divert flood waters for

useful purposes.

INTER-RELATI'ON OF PRIVATE AND PUBLICPROPERTY RIGHTS:

The,rights of the riparian owner in navigable waters is

a complex legal relationship involving the rights ofthe

federal government, state government and the general public

in these same waters. One must first legally define navigable

-waters, and in doing so there is often a problem of the

.choice of law, state or federal, to be applied. The federal

government has power over navigation under the Commerce

Clause of the United States Constitution. Its regulation

over commerce on the waters is as broad as the needs of

commerce generally. The State of Indiana,' like its sister

states, has certain concurrent jurisdiction over navigable

waters, is the owner of the beds of navigable waters, and

has jurisdiction over most non-navigable waters and their

intra-state commerce.

Generally, the riparian does not own the bed of the

navigable stream or lake, and in most cases his right must

be subordinate to the paramount public right of navigation

and the public rights incident thereto. The riparian has

certain property rights in the banks and beaches of the

watercourse and there is no public easement of access to the

navigable waters over the lands of the riparian unless such

an easement has been acquired by grant or perscription.

The riparian, like the general public, has a right of useage

in the navigable waters.

ACCRETIONS:

Under the doctrine of riparian rights, a riparian owner

is entitled to any land added to his water frontage by

accretion or reliction. Accretion is the process of

gradual and imper ceptible increase of land caused by the

contiguous waters depositing earth, sand and sediment.

Reliction is the increase of land caused by the recession

of the waters of the river or lake. In Indiana, title

'to the land formed by accretion or reliction is generally

vested in the riparian owner. Avulsion, the opposite of

accretion, is the sudden and rapid change of the course of

a river by which the river abandons its old channel and seeks

a new one. An avulsion has no effect upon title to land.

Great Lakes frontage, like ocean frontage, is a valuable

property asset. The Supreme Court-of the United States has

been called'upon'mdriy'times to decide whether the riparian

owner, by a process of accretion, or the state, by st atute

or claim-of'right, is the owner of additions to such valuable

land. The Supreme Court has.had to make a choice of law,

either federal common law, or state property law, to make

these decisions. Where the ownership of lands which are

also the boundaries of the United States are involved, the

Supreme Court has chosen to apply federal common law to

decide between the competing claims of the private property

owner and the state. Federal common law follows the doctrine

of accretion, and in.most decisions, the riparian was found

to ow n the a'ccreted property. For the state to acquire

it, a taking is required for which just compensation must.

be paid.

Given the general law that the state owns the bed

of the navigable waters, and the riparian owns the added land,

either through accretion or reliction, new legal issues

have been presented by reason of artificial or man made

influences, such -as' reclamation projects and sand nourish-

ment upon shore lines. In a 1973 decision of the Supreme

Cou rt of the United States entitled Bonelli Cattle Company

vs. Arizona, these issues reached center stage. The court

first found that federal law recognizes the doctrines of

accretion and avulsion, and concluded that the rechannel-

ization of the Colorado River sounded in avulsion but reasoned

in.accretion. The court concluded that the riparian rather

than.the state should gain the land resurfaced in the course

of this governmental activity where such resurfaced land

.-is not,necessary to a navigational project or to any naviga-

tional purpose. Further complicating this area is a companion

doctrine of re-emergence which has been accepted by several

0f the-Great Lakes states but upon which there is no decision

in Indiana.

NAVIGATION SERVITUDE:

The corollary of the navigational power is the navigation

servitude. It has sometimes been defined as a shorthand

expression for the rule that in the-exercise of the navigation

power, certain private property may be taken without compensation.

It has generally been held that the navigation servitude has
'its limits at the ordinary high water mark'of a navigable

water, lake or ocean. The lands below the high water mark

are always subject to the dominant or navigation servitude

in the interests of navigation,.and its exercise calls for

no compensation.

PUBLIC TRUST DOCTRINE:

one of the most challenging legal questions in Indiana

concerns the matter of the Public Trust Doctrine. Does it

or does it not 'exist with respect to navigable waters in the

State of Indiana,'and if it does exist, what obligations

are imposed upon the state in carrying out the trusteeship

for the public?

It appears that there is no decision by an appellate

or reviewing court in the State of Indiana which directly

addresses this issue. It may be that there has been a lack

of subject litigation or a failure of the Indiana courts fo

reach or consider this subject or issues whe re it was

appropriate. In our sister states of Wisconsin, Illinois

and Michigan, the matter of the Public Trust Doctrine as

to navigable waters has been thoroughly discussed, refined

and*ren'ewed in numerous decisions beginning with the Illinois

Central Railroad vs. Illinois. case, which was ultimately

decided by the Supreme Court of the United States in 1892.

To what uses may these submerged lands of the state be

put? May the submerged lands be sold or otherwise given to

private use? From 1907 to 1973, under the Indiana Lake

Michigan Fill Statute,- a riparian appeared to have the right

to fill out and into the Lake and receive a patent or title

thereto. Such permits were issued to steel manufacturing

companies who filled in hundreds of acres from the Illinois

state line to the eastern limits of the City of Gary. Follow-

ing an amendment to this statute in 1973, the Indiana Depart-

ment of Natural Resources has placed a moratorium upon any

further fill applications.

Notwithstanding the lack of judicial statement or

response, we believe that the Public Trust Doctrine in naviga-

ble waters is a legal doctrine applicable to the State of

Indiana in a manner not unlike that of her sister states.

SPECIFIC AREAS OF PUBLIC CONCERN:

There are specific areas of-public concern in a coastal

zone such as flood control and prevention, erosion control,

10.

harbor and related construction,* dredging, filling and

extraction, and a concern to regulate water levels particularly

in the Great Lakes.

Numerous federal and state laws have been adopted

through the years to authorize government to control and to

restore lands affected by waters. -These statutes are discussed

in greater detail in the text concerning these specific areas.

LOCAL AND REGIONAL GOVERNMENTAL AND REGULATORY JURISDICTIONS
WITHIN THE COASTAL ZONE:

The shoreline of Indiana, only 43 or so miles in length,

is occupied for a fair part by several major cities with

industrial and manufacturing developments, and for a fair

part by residential towns and federal and state park lands.

The local units of government, cities, towns, counties

and to a lessor degree townships, have powers which will affect

land use and other decisions in a coastal zone. In addition

to specific powers granted to cities and towns concerning

annexation, sewers, sewage and waste disposal, and specific

broad powers of regulation including the policepowers, the

General Assembly has recently conferred "home rule" on cities

and counties within the State of Indiana. These "residual"

or "reserved"'powers have been granted through legislation

and not constitutional amendment. There are specific limita-

tions set forth in the statute, and the Indiana and federal

counts have interpreted these home rule statutes in several

decisions during the past two years.

The cities, towns and counties also have the power to

control use of land through its zoning and subdivision control

ordinances. The principal enabling legislation was recodified

in 1947 and remains as the basic authority for planning,

zoning and enforcement. Although not applicable to Lake

County, Indiana, the General Assembly has adopted enabling

legislation for area planning on a county wide basis. The

Secretary of the Interior has certain powers granted to

him concerning the zoning of land within the boundaries of

the-Indiana Dunes National Lakeshor-e, and his-enforcement

power is related to a granted power to condemn land within

the boundaries where local zoning ordinances do not contain

guidelines which are set by him.

Regional planning commissions are authorized by state

law. Within the three county area comprising the preliminary

coastal zone, the Northwestern Indiana Regional Planning
Commission (NIRPC) has been esta:blished by the legislative

bodies of Lake and Porter Counties, and the Michianna Area

Council of Governments (MACOG) has been established by the

legislative bodies of LaPorte and neighboring counties.

These regional planning commissions initiate and maintain

comprehensive policy planning 'and programming processes

for the entire region and coordinate their activities with

all local units of government. Each acts as the designated

review agency for the federal government on local projects,

and the clearing house for A-95 Clearing House Review.

12.

The State Planning Services Agency was created within the

executive office of the Governor to perform certain functions

of state planning services, both on a community as well-

as state level. The Coastal Zone Management Program is

being administered by this agency on behalf of the State of

Indiana. Major planning is mandated by the Federal Water

Pollution Control Act amendments of 1972. The Water Quality

Management Plan, sometimes referred to as the "208" Plan,

requires that certain direct regulatory programs including

land use control be incorporated into the Water Quality

Management Plan and such land use controls are likely to

shape the development and use patterns of major areas within

the preliminary coastal zone for years to come.

GOVERNMENTAL, REGULATORY AND AGENCY JURISDICTIONS AND
LEGISLATION:

Federal and state legislation r elating to governmental,

regulatory and agency jurisdiction within the coastal zone is

a mass of material, in part separate and in part related,

serving different interes ts and obj-ectives. Several.states

are considering the establishment of a "one-stop" permit

center where a person desiring to comply with existing law
and regulation can be advised of all of his requirements

and can make all of his applications.

We believe it is more comprehensible to view these

matters as programs involving agencies rather than agencies

exercising powers.

The broad categorie s of programs relating to the

13.

coastal zone include energy, pollution and waste, recreation

and conservation, shipping and boating, and regional planning

acts,

SPECIFIC ISSUES AFFECTING THE INDIANA COASTAL ZONE:

Along the limited Indiana shoreline lies the Indiana

Dunes State Park and the Indiana Dunes National Lakeshore, a

federal park. While the fund to acquire the State park

was established by the General Assembly in 1923, the National

Lakeshore funding began in 1966. Each park seeks to preserve

the uniqueness of the Indiana Dunes in its present natural

state.

At either end of these park areas there exists major

generating stations of Northern Indiana Public Service Company.

The Michigan City generating station at the east and the

Bailley generating station at the west of these parks have

fossile fueled generating plants. A nuclear powered generating

plant has been proposed for construction at the Bailley site,

and after approximately six years of hearings before regulatory

bodies and of review before federal appeal courts, the construc-

tion permit authorized by the Atomic Energy Committee (now

Nuclear Regulatory.Commission) has been confirmed. Two

other major generating stations operate within the coastal

zone at Hammond and at Gary. The industrial demands for

power and energy in Northwestern Indiana is increasing,

and projected peak load requirements through the 1970s may

14.

double. The utilities, it is assumed, will continue to

seek an increase of internal capacity. The future siting

of power plants within the coastal zone remains a possibility.

EMINENT DOMAIN:

The federal condemnation power is set forth in a

general eminent domain statute, 40 U.S.C. �257, which

authorizes any officer of the government to use the judicial

process for condemnation whenever in his opinion it is

necessary or advantageous to the government to do so.

Where such officer seeks to'acquire the land or interest in

land for public use before a final judicial determination,

he may file a "declaration of taking'.1. This declaration,

together with a deposit of the estimated amount of just

compensation will cause the title to the land or the

interest therein to vest in the United States leaving only

the judicial determination of just compensation to be made.

In 1971, in connection with another act, the Congress

adopted a uniform real property acquisition policy. Although

it created no additional rights or liabilities to the parties,

it was intended to cause the officer of the government to act

fairly, promptly and with full disclosure in dealing with

the own er of the property being condemned.

In several instances, the Congress has described

specific condemnation procedures for certain departments of

the federal government. These procedures may be supplemental

15.

to the general eminent domain act, or an.elective alternative

to that act.

Within the boundaries of the Indiana Dunes National

Lakeshore, under certain limitations and conditions, the

authority of the Secretary of the Interior to acquire property

by condemnation is suspended.

The State of Indiana, and its local and district units

of gov ernment having the power of condemnation, may use the

provisions of the general eminent domain act set forth in

I.C. 32-11-1-1, et seq.

Whenever the Governor of the State deems it necessary

to acquire any real estate onwhich to construct any public

buildings for the State of Indiana or to acquire any real

estate adjoining any of the lands of the state in which

buildings have been erected, he may' order the Attorney General

to commence a condemnation action.

Some units of the state exercise their right of eminent

domain under specific powers and procedures granted to it by

the General Assembly including airport authorities, parks

and districts, the Indiana Port Commission and the State

Highway Commission.

For some purposes, there exists an administrative

condemnation proceeding which can be initiated by boards

of public works of cities for the acquisition of real or

personal property for the use and benefit of the city or for

public streets and alleys.

16.

Public utilities and corporations organized under

the State of Indiana and authorized to furnish, transmit or

distribute electrical energy, gas, oil or the like, have the

power to take, condemn and appropriate land or any interest

therein for the purposes and objects.for which it was created.

The procedure to be followed by such public utilities or

quasi-public corporations is that set out in the general

eminent domain statute of Indiana.

17.

ARTICLE III

COASTAL ZONE MANAGEMENT ACT OF 1972
DECLARATION AND DEFINITIONS

The Coastal Zone Mangement Act of 19721 declared that it

is the national policy to pqeserve, protect, develop, and

where possible, to restore or enhance, the resources of the
nation's coastal zone for this and suceeding generations.2

The Act also declared that it is national policy "to.

eftcouage and assist the States to exercise effectively their

responsibili:ty-i,n-the--coastal zone through the development

and implementation of management programs to achieve wise use
.of the land and water-r6sources of the coastal zone giving

full consideration to ecological, cultural, historical and
esthetic values as well .as to needs for'economic development." 3

The Coastal Zone, as defined by the Act, "means the

coastal waters (includi4g the lands the rein-and thereunder)
and the adjacent-shorelands (including -Ehe waters therein and
thereunder) 4 The Zone extends inland from the shore-

lines, only to'the extent necessary to control shorelands.,
the uses of which have a direct and significant impact 'on
a'@ers.4
the coastal w

The Co4stal waters, as defined by the Act, "means . . .

in the Great Lakes area, the waters within the territorial

jurisdiction of the United States consisting of the Great

Lakes, their connecting waters, harbors, roadsteads, and

16 U-.S.C. 1451-1464
2. 16 U.S.C. 1452(a).
3. 16 U.S.C. 1452(b). 18.
4. 16 U.S.C. 1453(a).

estuary-type areas such as bays, shallows, and marshes .,#5

The State of Indiana, acting through its State Planning

Services Agency, is developing a management program for the

land and water resources of its coastal zone. In order to

identify the means, by which the State proposes to exert

control over the land and water uses, a requirement of the
program 6 - the listing or inventory of existing relevant consti-

tutional provisions, legislative enactments, regulations and

judicial decisions affecting the Indiana Coastal Zone - is

necessary.

This legal report is made to inventory present law, to

assist in the determination of the adequacy of present law,

and to stimulate thought as to viable options in this area.

5. 16 U.S.C. 1453(b)
6. 16 U.S.C. 1454(b)j4).

19.

ARTICLE IV

PRIVATE PROPERTY RIGHTS

A. RIPARIAN RIGHTS - DEFINITION:

The word riparian is derived from the Latin word

riparius meaning "pertaining to or'situated on the bank of

a river." Riparian rights is a common law doctrine describ-

ing those rights.to which-the-owner of-a--tract-of--land-is

entitled as a consequence of bordering upon a body of

water. Riparian rights, strictly defined, pertain to a

river or a stream; littoral rights are similar rights of

the landowner adjoining a lake. However, the phrase

"riparian rights" is generally used to encompass both

riparian and littoral rights, and both areas will be dis-

cussed herein under the more general term "riparian rights."

Primary to all ripari'an rights is that the boundary

of the tract of land be the water course. State v. Tuesberg

Land Company, 61 Ind. App. 555, 109 N.E. 530 (1915). Riparian

rights are incident to the ownership of land and can be lost

only by grant or perscription. City of Logansport v. Uhl,

99 Ind. 531 (1883)-. They are natural rights appurtenant to

the freehold in common and equal with all others holding land

upon the watercourse. City of Valparaiso v. Hagen, 153 Ind.

337, 54 N.E. 1062 (1889). For riparian rights to attach,

20.

the land must not only be contiguous to the water, but in

contact with it. Illinois Central R.R. v. Illinois, 146

U.S. 387 (1892). An intervening'street or highway or the

retention of the rights by the grantor will prevent the

freeholder from acquiring riparian rights. Irvin v. Crammond,

58 Ind. App. 540, 108 N.E. 539 (1915).

A discussion of riparian rights must deal with two

general area-s of rights - rights in the flowing water, and

rights in the bed of the watercourse or the submerged land.

B. RIPARIAN RIGHTS - IN FLOWING WATER:

There is generally no property in the corpus of the

water. The right of riparians is one of use and enjoyment,

or a usufruct, in the water as is flows by the land.

Dilling v. Murray, 6 Ind. 324 (1855); Bass v.-City of

Fort Wayne, 121 Ind. 389, 23 N.E. 259 (1890). Under the

doctrine of riparian rights, prior use gives no paramount

right to the use of thewater. Each riparian has an equal

right to the flow of the. water through his land. Dilling v.

Murray, supra.

An exception to this general rule and unique to

Indiana law is the principle that the owner of land upon which

there is located a non-navigable stream or lake owns and

has the right to control the surface of these waters.

Sanders v. DeRose, 207 Ind. 90, 191 N.E. 331 (1934); Patten

Park v. Pallack, 115 Ind. App. 32, 55 N.E.2d 328 (1944).

21.

This exception is in part attributable to a rationale follow-

ing from the ownership of the submerged land as well as the

ownership of the riparian banks.

1. Natural Flow vs. Reasonable Use Theories:

The language of some Indiana cases would suggest that

the right of a riparian is to have the watercourse flow as it

naturally wo uld. In Cory v. Silcox, 6 Ind. 39 (1854)1

the court held that a riparian cannot divert or diminish

the quantity of water which would otherwise descend to lower

riparians. As recently as 1962, the Indiana Appellate Court

again used this language holding that a lower riparian has

a right of flowage in natural ways and quantities. Smith v.

Atkinson, 133 Ind. App. 430, 180 N.E.2d 542 (1962).

Indiana, however, has adopted the reasonable use

theory of riparian rights. An absolute right theory would

preclude all beneficial uses of water, which would be both,

unreasonable and impractical. Therefore, both statutory and

case law provide for "reasonable use" under which riparians

may use the water as it flows by so long as such use is

reasonable.

2. Use for Domestic Purpo es:

Indiana Code (I.C.) 13-2-1-3 provides that riparians

at all times have a right to use the water for domestic

purposes.' Domestic purposes are non-exclusively defined

to be household purposes and the watering of poultry, livestock

and domestic animals. Domestic uses have priority and are

superior to all other uses. Therefore, no upper riparian

22.

can use the water for any extraordinary or secondary purpose

if there would be a lack of supply to lower riparians for

domestic purposes. Valparaiso City Water Co. v. Dickover, 17

Ind. App. 233, 436 N.E. 591 (1891). A question undecided

in Indiana is if there is an insufficient supply of water

for the domestic needs of all riparians, must all riparians

shall equally in the deficit, 'or may upper riparians satisfy

their domestic needs to the deprivation of lower riparians?

I.C. 13-2-1-3 states that each owner of land shall have the

right to use the watercourse in the quantity necessary to

satisfy domestic purpose needs. The Indiana Supreme Court

has held that no upper riparian has the right to use the

water to the material injury of lower riparians. State v.

Pottmeyer, 33 Ind. 402 (1870). It would appear that the use

by the upper riparians for domestic consumption is not a

material injury as contemplated by common law or the statute.

3. Use for Non-domestic Purposes:

Each riparian is also entitled to use the water for

reasonable non-domestic uses. Reasonableness is not measured

by the requirements of a given business, but by whether

the use is proportionate and reasonable with reference to the

quantity of water usually in the stream or lake. Valparaiso

City Water Co. v. Dickover, supra. Reasonableness is a

question to be answered by the trier of fact. Muncie Pulp Co..

v. Koontz, 33 Ind. App. 532, 70 N.E. 999 (1904); Barnard v.

Shirley, 135 Ind. 540, 34 N.E. 600 (1893). A lawful use, if

23.

exercised to a point of reasonableness, may constitute a

nuisance.

The relationship between upper and lower riparians

was clarified in the Barnard decision.

"The right of one proprietor to have the
stream ascend to him pure must yield in a
reasonable degree to the right of the upper
proprietors whose occupation of their own
lands , and whose use of the water for mill,
manufacturing, domestic or other purposes
will tend to make the water more or less
impure."_ Barnard v. Shirley, 135 Ind.
547, 549; 34 N.E. 600, 603 T1893).

The Barnard decision,'also proposed a balancing of

the equities to determine how far the lower riparian rights

must yield before any injunction will be granted.

ItInconveniences resulting from such causes
must be endured by individuals for the general
good; otherwise we should have to forego a
multitude of the blessings of modern civiliza-
tion." Barnard v. Shirley, 135 Ind. 547,
549, 34 N.E. 600, 602 (1893).

4. Pollution by Riparians:

The pollution issue is now subject to strict federal

and state statutory regulation. The earlier common law

devel opment of the reasonable use theory of riparian rights

in water included a changing theory regarding the pollution

effects which accompanied use of the water for manufacturing

purposes... The Barna rd v. Shirley, decision, supra, in 1893

held that sewage and waste may be cast in the streams if

material injury was not caused thereby. In balancing the

equities to determine whether to grant in injunction, the

24.

court considered such criteria as the ability, physically, to

move the polluting activity so as to avoid injury to lower

riparians, negligence in conducting the activity, and the

ability to prevent the injury. A series of decisions in

the early 1900s held that a riparian had no right to pollute

a stream regardless.of the skill he exercised or the lack of
-negligence, and that damages were properly recoverable if the

pollution substantially impaired the value of the land and
r6nderea it unfit for domestic purposes. Weston Paper Co.

V. Pope,-155 Ind. 394, 57 N.E.- 446 (1900); Muncie Pulp

Co. v. Koontz, supra; West Muncie Strawboard Co. v. Slack,

164 Ind. 321, 72 N.E. 879 (190t); American Plate Glass Co. v.

Nicoson, 34 Ind. App. 643,.73 N.E. 625 (1905). Pollution

was recognized as a nuisance,' and the fact that the water

course was polluted by others did not absolve one defendant

of liability. Muncie Pulp Co. v. Koontz, supr4. An activity

constitutes a nuisance if, in the judgment of reasonable

men, whether lawful or unlawful, the activity is naturally

productive of actual, physical discomfort to persons of

ordinary sensibilities and of ordinary tastes and habits.

Cox v. Schlacter, 147 Ind. App. 530, 262 N.E.2d 550 (1970).

5. Pollution by Municipality, an Early Exception no
Longer Granted:.

Earlier, in 1891, the court carved an exception to

the pollution rule in favor of municipalities. City of

Valparaiso v. Hagen, 153 Ind. 337, 54 N.E. 1062 (1889).

The Indiana Supreme Court reasoned that:

(a) The City had no other means of discharging

25.

the sewage of the inhabitants;

(b)' The City was non-negligent in constructing
a disposal system; and

As late as 1912, the so-called necessity rule-for

municipalities continued as an exception to the right of

lower riparians to enjoin pollution of the watercourse by

upper riparians. Penn-American Plate Glass Co. v. Schwinn,

177 Ind. 645, 98 N.E. 715 (1912). While recognizing

the existence of this exception, @,the Schwinn decision, supra,

questioned the merits of such a rule given a more thorough

analysis of the.public health argument upon which it was

based..,, The dilemma was largely solved through technological

advancements.

I.n City of Frankfurt vf.,.Slipher, 88 Ind. App. 356,

162 N.E. 241 (1928), the Appellate Court 'ruled that since

the sewage could now be purified and rendered harmless at

reasonable cost, the necessity rule would no longer be

followed. The-necessity rule was also eliminated by statute

as stated in Elson v. City of Indianapolis, 246 Ind. 337,

204 N.E.2d 857 (1965)

."However, the enactment of Clause Four (Section
3-1706 (1946 Repl.)) appears to express a
clear legislative intention thatthereafter
compensation should be paid to any persons
whose property was damaged as the result of
some public construction without regard to
whether any of his land was taken or not and
even though the construction was completed

26.

as proposed - that is, without regard to any
negligence in such construction." Elson v.
City of Indianapolis, 246 Ind. 337, 10-,--2-04
N.E.2d 857, 864 (19-65) (concurring opinion).

6. Damming and Diverting Waters:

Among the other uses which have been specifically

provided riparians both by statutory and case law are damming

or diverting waters for mechanical or agricultural purposes.

See: City of Valparaiso v. Hagen, supra. The water, however,

must be returned to the water shed. The courts have consis-

ten4q---ly held that,city water works do not have a right, as

riparians, to divert water from the stream in order to make

merchandise of it and distribute it to its residents.

Valparaiso City Water v. Dickover, supra; City of Elkhart v.

Christiana Hydraulics Co., 223 In d. 242, 59 N.E.2d 353 (1945).

To divert waters for a city water supply, a city must use

its power of eminent domain.

Once the riparian artificially collects water into

a reservoir (for irrigation, water works or the like) he is

liable to others if the water escapes causing damage either

by flooding or from its pollutant content. Therule is that

. . . (any) person who brings on his lands anything likely

to do mischief if it escapes must keep it at his peril . . .

(else he) is liable if it escapes and does injury, whether it

be beasts, water, filth or stenches." Central Indiana Coal

Co. v. Goodman, 111 Ind. App..480, 39 N.E.2d 484 (1942);

see also, Niagara_Oil Co. v. ogle, 177 Ind. 292, 98 N.E.

60 (1912).

27.

7., Obstructions:

A riparian may not obstruct a natural water course.

Gwehn v. Meyers, 234 Ind. 460,.129 N.E.2d 225 (1955). He

may, however, exclude diffuse waters within his land.

Vandalia R.R. Co. v. Yeager, 60 Ind. App. 118, 110 N.E.

230 (1915). To constitute a natural watercourse as opposed-

to diffuse surface waters, the water must flow in a definite

direction with banks and a channel which is permanent for

all practical purposes. It is not necessary that the water

shall flow continually, as long as it flows for a substantial

period of the year. Gwenn-V. Meyers,,supra; Weis v. City of
Madison, 75 Ind. 241 (1881); Lowe v. Lodge jLealty, 133 Ind.

App. 434, 214 N.E.2d 400 C1966)..

In Indiana, surface or.diffuse water is treated a's

a common enemy and riparians may erect"such barriers as

may bedeemed necessary to keep surface water from their

,lands. Weis v. City of Madison, supra; Reed v. Chaney,
111 Ind. 387, 12 N.E. 717 (1887);-Ramsey v. Ketchum, 73

Ind. App. 200, 127 N.E. 204 (1920). However, surface water

may not be diverted from its natural course by collecting

it in a channel and-dischargi'g it upon the lands of neighbor.
n

Reed v. Chaney, supra; Watts v1. Evansville Mt. C & N R.R. Co.,

191 Ind.27, 129 N.E. 315 (1921). Whereas earlier decisions

allowed riparians to build embankments and levies to protect

themselves from overflow waters of a natural watercourse,

this rule was modified by the Watt s decision. The Watts

rule imposed a duty upon the riparian to use reasonable

28.

care when constructing such embankments so as not to expose

lower riparians to damage. The modification to the earlier

rule did not alter the requirement that a construction must

not impede the free flow ofwater leaving the upper riparian's

property in the full width of the channel. Taylor v. Fickas,

64 Ind. 167. C18781.

8.' Use of Water as Pow et:

Riparians do have the right to use the water for the

power it contains. In non-navigable streams, the owner of

land through which a stream ran had the right at common law,

deri ved from his riparian ownership, to dam the water to use

it in a mill or for any lawful purpose, provided only that

the water was returned to the stream after use. Lowe v.

Indiana Hydro-Electric Power Co., 197 Ind. 430, 151 N.E.

220 (1926). However, this did not include the right to swell

the wa'ters back upon the,l .ands of-upper-riparians; such.invasion

gave ri se-to an action,for damages. Guynn v. Wabash Water and

Light Co.,..-181 Ind. 486, 104 N.E. 849 (1914); Trustees of

The Wabash & Erie Canal v. Speers, 16 Ind. 441.(1861). The

right to back waters upon the lands of an upper riparian

must be obtained from him by grant or perscription. Seymour

Water Co. vs. Lebline, 195 Ind. 487, 144 N.E. 30 (1 924).

9. Fishing:

Among the other rights.of riparians.are the* right to

the fish in non-navigable water for which damages may be

recovered if this right is injured by pollution. West Muncie

29.

Strawboard Co. v. Slack, sypra. The right to the fish

in navigable waters is shared with the general public.

A.riparian has the right to the ice frozen in the stream

as a reasonable use of water so long as his action does

not injure lower riparians. State v. Pottmeyer, supra;

Brookville and Metamora Hydraulic Co. v. Butler, 91 Ind.

134 (1883).

C. -RIPARIAN RIGHTS IN BEDS OF WATERS:

1, General.

The second major division of riparian rights is the

right in the bed of the watercourse abutting the riparian's

tract of land. Within this division a distinction must be
made'between rivers and streams, 1-akes and Lake Michigan, and

a further distinction between non-navigable and navigable

waters. There are significant differences among these various

classifications.

2. -'Non-navigable Rivers and Streams:

In non-navigable rivers and st reams, the riparian is

the owner of the.bed as far as the thread, or mid-point, of

the stream. Ross V. Faustf 54 Ind. 471 (1876). The conveyance

of riparian land bounded by a non-navigable river includes the

-tothe thread of the stream unless a contrary intention is

manifest. A conveyance can'be made expressly reserving,the

be-'d-of'the stream to the grantor.

3. Meandered Lands and Bed ownership Problems:

.There remains confusion concerning the ownership of

30.

the beds of a non-navigable lake. An understanding.of the law

relating to.this matter requires an understanding of meandered

lands and meanderlines. When originally surveyed by authority

of the,United States, public land bordering on-waters,

marshes or swamps was defined bya meanderline run on dry
land approximating the-course of the stream or lake. The
land lying between this meanderline and the watercourse

itself was known as meandered land.

The Indiana Supreme Court,, in Sphung v. Moore, 120.
Ind. 352, 22 N.E.@319 (1889), decided that a patent or
conveyance for a fractional,quarter section, of 'which one

boundary is a meandered stream, passes title to all lands

conveyedincluding the land within the lines of said quarter

section between the meanderline and the water's edge. The

Court concluded that meanderlines are not boundary lines

unless such is thle..ihtention-of,-Ehe-parties, but are lines

run for the purp6se-of ascertaining the,approximate quantity

of land for sale.

In Stoner v. Rice, 121 Ind. 51, 22 N.E. 968 (1889),

decided in the same year as' the Sphung decision, supra,

the Court addressed itself to similar problems affecting

a non-navigable inland lake. In holding that the original

successor in interest to the patentee of the fractional

section described to the meanderline was a riparian owner

whose title included lake bed ownership, the court said:
. . . the owners of land bordering on non-
navigable inland lakes . . . when the sub-
divisions of the land are surveyed by running

31.

a meanderline between the dry land and the
water to ascertain the number of acres of
dry land, and designating such subdivision
as a fractional quarter or a lot, giving
the number of acres of dry land, takes the
title to All the land contained within the
.1 __ -, ..- 1. .. .. _"' ` '
Subdivision; that is to say, it takes as a
riparian owner and the title includes and he
owns the land beneath the lake for enough
beyond the meandered line and water's edge
to make out the full subdivision in which
the land is so situated." Stoner v. Rice,
121 Ind. at page 52, 22 N.E. at page 968 (1889).

This decision treated the-submerged land as surveyed,

and then extended the survey'upward over the water so as

to fill out the subdivision. This legal conclusion has

been sharply criticized in both federal and state decisions

which followed.

In Harden v. Gorden, 140 U.S. 371 (1891), the Supreme

Court pointed out that the.StonErdecision was in conflict

with the common law of England as recognized and adopted

in other states of the United States. The common law viewed

the interest of the owner near an inland'-lake,-whose description

referred to meanderlines, as a riparian ow ner whose interest

in the bed of the lake was determined by usual rules regarding

riparian owners along lakes and streams. Tolleston Club

of Chicago v. Carson,- 108 Ind. 642, 123 N.E. 169 (1919),

also criticized-the-rule of Stoner.--Nevertheless, the Indiana

Court was loath to reverse th'e established rule of Stoner

and later decisions extending it because of the possible

adverse effect on title to real estate.

"No doubt many titles have passed on the faith
of the rule, and the doctrine of stare decisis

32.

requires us to adhere to it now, whether right
or wrong. To change.the rule now would unsettle
titles, and would result in greater harm than
good." T,olleston Club of Chicago v. Carson,
23 -N.
18:8 "Ind.'at 655, E. at 16'!Y (1919).

The later decisions of Sanders v. DeRose, 207 Ind.

90, 191 N.E. 331 (1934) and Earhardt v. Rosenwinkle, 108
*.Ind. App..2.81, 25 N.E.2d.265 (1940), further demonstrate

the lack of a consistent legal approach to the problem of

inland lake bed ownership. In Sanders, supra, one party

own ed almost all of the lakeshore boundary, and another party

owned a-very small-portion of the lakeshore boundary. In

confirming the right,of the'larger boundary owner to

exclude the smaller boundary owner from fishing and boating

on the greater surface of the water, the Indiana Supreme

Cour t said

each owner has the right to the free
and unmoleste'd use and control of his portion
of the lakebed,.and water thereon for boating
and fishing." Sanders v. DeRose, 207 Ind.
at 95 , 191 N.E. at 333 C1934)

The Court appeared to recite the Stoner rule as to the manner

of determining ownership of the lakebed, but then incorrectly

referred to it as the common law.

In the Earhardt decision, supra, concerning an issue

regarding the bodndiry'of adjacent lots along Tippecanoe

Lake, the Appellate Court stated-as the law of Indiana, the

following:

a grant of land adjacent to a,non-navigable
lake or river carries title to the thread thereof
Earhardt v. Rosenwinkle,']O@ Ind. App.
at 29.1, 25 N.E.2d -at-272 TI-940). tour emphasis)

33.

The Court miscites the Stoner decision as authority

for the-proposition of law, which, as earlier discussed

in-Tolleston Club of Chicago v. Carson, supra, denies the

"thread of the lake" concept, and supports a "filling out of

the lines of the subdivision" concept for determination of

lakebed ownership.

Indiana law, as it relates to inland non-navigable
lakes, holds'that the owner of a'tract of land described

to a meanderline generally owns through the meanderland

to-the lake; and once at the lake, the owner's property

interest in the bed is determined bya straight line project-

ion of the congressional surveyor's-lines, and not by a
pie-shaped projection to the common law mid-point or thread

of the lake.

D. FEDERAL LEGISLATION RE: RIPARIANS;

SUMMARY OF LEGISLATION REGARDING
RIPARIAN RIGHTS

Harbor Lines: Establishment
'D U.S.C. 404
.30 Stat. 1151, C. 425, Sec. 11, March 3, 1899

Federal Power:

The Secretary of the Army is authorized to establish
harbor lines to protect harbors.. No pier, wharf, bulkhead
or other work may be built outside established harbor lines,
except in compliance with the regulations set forth by him,
which regulations appear in 33 C.F.R. 209.150. See: 33 U.S.C.
403.

Requirements for Construction Beyond thelEstablished
Harbor Lines:

When permission'is granted for work beyond the established

34.

harbor lines, the Secretary of the Army must:

l.. Have ascertained the amount of water displaced
by th e structure;

2. If he deems it necessary, he may require the parties
to whom permission is granted to make compensation
for the displacement either by:

(i) excavating in some part of the harborl
including tidewater channels between the
high and low water mark, to create a basin
for as much tidal water as may have been
displaced; or

Cii) any other mode that may be satisfactory to him.

State's Role:

The harbor lines created pursuant to this section mark
the extent of the state's jdrisdiction.and authority to grant
permission to build or fill along the shore of Lake Michigan.
See: I.C. 4-18-13.

Harbor Lines: Regulations
33 C.F.R. 209.150

Back@Lround:

Under previous policy, riparian owners could fill or
construct open pile structures shoreward of the established
harbor line without obtaining a permit under 33, U.S.C. 403.
This presented a danger for appropriate consideration was not
given to environmental impact or to the public interest.

Procedure:

All existing and future harbor lines are guidelines
fordefining'the offshore limits of open pile structures or
fills. A permit under 33 U.S.C. 403 is acquired for any work
commenced shoreward of the future or existing harbor line as
of the date of publication of this regulation in the Federal
Register (F.R. 8280, May 27, 1970). This regulation does
not alter the earlier requirements for.work commenced prior to
May 27, 1970.- A procedure is provided for the establishment
of new harbor lines or a modification of old harbor lines.
Publ:ir-hearings and notice to interested persons are required
to consider the public interest.

35.

Deflection of Current; Liabili:@y to Riparian Owners
500,
33 U.S.C _ 25@Stat. 423, C. 860,
Sec. 2,1 August 11, 1888

Riparian Riqht:'

The Secretary of the Army has a duty to investigate
when he receives a complaint that a bridge, pier or abutment
placed in a navigable water has deflected the current and
caused erosion of the banks or other serious damage or danger
to property. If the complaint is well founded, the Secretary
of the Army shall order such damage repaired or danger pre-
vented by such means and in such time as the Secretary may
.specify. If the owners or operators of the bridge, pier or
abutment default in the compliance, they shall be liable in
any court of competent jurisdiction to the injured riparian
in an amount double the amount of his injury.

THE SUBMERGED LANDS ACT
43 U.S.C. 1301 - 1305; 67 Stat. 29, C. 65,
Title I, Sec. 2, May 22, 1953.

The Rights of the States:,

Title and ownership of lands beneath navigable waters
within the boundaries of the State and the natural resources
within such lands and boundaries are recognized and confirmed.
The state's right to manage and administer these lands and
natural resources is also recognized and confirmed in accord-
ance with the applicable state law. 43 U.S.C. 1311.

Federal Power:

Nothing in this chapter affects the constitutional
authority of the United States over these lan-d*s'*and waters
for the purposes of navigation, flood control or the produc-
tion of power, and nothing is construed as a release or
relinquishment of the right of the United States arising
under the Constitutional authority of Congress to regulate
or improve navigation or related purposes. 43 U.S.C. 1311(d).
See: 43 U.S.C. 1314 for an elaboration of the rights and powers
retained by the United States.
There is excepted from section 1311:

1. All lands to which the U.S. holds title
pursuant to state law;

2. All lands expressly,ceded to the U.S. when the

36.

states entered the union;

3. All lands acquired by the U.S. in a proprietary
capacity;

4. Any rights in land held by the U.S. under claim
of right;

5. All lands held by the U.S. for the benefit of
any tribe, band or group of Indians or individual
Indians;

6. All structures and improvements constructed
by the U.S. in the exercise of the navigation
power.

E. LEGISLATION RE: RIPARIANS:

Lake Michiqan Lands - Right's of Riparian
Owners
I.C. 4-18-13-1, et seq., Acts 1907, Amended 1973, P.L. 24

Riparian owners of Lake Michigan have the qualifie&
right to reclaim or build.upon the submerged land, as far as
the dock or harbor line, for industrial, manufacturing, trade,
commerce and navigation purposes; and also for the use and
maintenance of public recreation facilities. The riparian
shall own the filled in land if compliance is made with
I.C. 4-18-13-3 and $100.00 per acre is paid to the office
of the Secretary of State.

NOTE: By reason7,of the-amendment, the Natural Resources
Commission of the Department of Natural Resources may, rather
than shall, issue to the riparian owners the authority to
fill in and improve such land, with approval of the governor
of the state. No criteria are given for the exercise of
this discretion.

Water for Domestic., Purposes Impounding
for Irriga ion - Ripari@iin @OwH`ers -Rj_g@hts
I. . 1 -2-

1. Riparian owners shall at all times have the right
to use water from a public watercourse for domestic purposes,
including household purposes, drinking water for livestock,

37.

poultry and domestic animals. Domestic purposes have priority
and are superior to all other uses of the water.

2. Riparian owners have the right to impound water by
dam on stream or in an off-stream reservoir when the flow of
water is in excess of existing reasonable uses at the time
of such impounding. The obstruction facility on stream must
include an outlet to release n-on'-excess water to which the
owner is not entitled. Approval from the Natural Resources
Commission is a prerequisite to any such action.

3. When additional stream flowages are created by
persons, utilities, governments or associations releasing
from impoundments built and financed by them, they may use
such increas@ed flowages, and the riparian shall have no rights
in the increased flowage beyond normal stream flow.

Diversion of Flood Waters Commission to
Mediate 61-E-1-utes - Re lommission
Dor
I.C@_ @3_ -@_6@,j@c-ts 6T_19@51 a-9 -adU_ed_T:)`y-Tcts of 1959

1. Upon approval by Natural Resources Commission,
either a riparian or nonriparian may divert floodwaters for
useful purposes, including storage, provided existing users
are not injure d, and other existing rights are not denied.

2. Any party to a dispute between users of surface
water may request the Natural Resource's Commission to mediate
the dispute. The Commission's recommendation is not binding
and.do...es.not preclude legal action.

3. The Natural Resources Commission has the right
to require'any-user of ground or surface water to make
specific reports as to the volume used.

Piers, Wharves, Docks
I.C. l3=2---T_-_5; A3-ts1905

Riparian owners along navigable streams may build on
his land, and upon submerged lands beneath the waters border-.
ing his land, piers, wharves, docks or harbors in and of
navigation and commerce, provided that such structures do
not extend into the streamfarther than necessary, and do not
obstruct navigation and shipping.

Comments:

The riparian has no right to exclusive use of the

38.

waters within his pier(s), for the right of the public to use the
water for purposes of navigation and fishing remains.

NOTE: I.C. 13-2-4-4 provides a penalty for obstructing
a navigable watercourse. The concept of obstruction shall
be the same as general law governing public highways.

Mills Not Affected
A-Acts 1905

The declaration of a watercourse as navigable shall
not affect any mill, dam, viaduct, bridge or the like on such
stream, except where such structure has been abandoned for more
than 12 months.

Gates at River Banks
f--'f - - _t- .I
C. _J-Zf47- , Ac@t_s1905

Riparian .owners along watercourses navigable for large
boats are authorized to hang gates at the bank across any road
leading down the bank. excepting within the limits of towns
and cities.

Comments:

Although the public has a right to navigate upon naviga-
ble waterst this does not include the right of access over
or through theland of private persons.

39.

ARTICLE V

!NTER-RELATION OF PRIVATE AND PUBLIC PROPERTY RIGHTS

A.' NAVIGABLE WATERS:

1. Navigability and its Meaning:

The issue and meaning of navigability in this area is

of utmost importance. Professor G. Graham Waite, in his

1968 Report to the Indiana Water Resources Study Committee

on Indiana Water Law, an excellent study, explained naviga-

bility in the following context:

"Whether water is navigable or.non-navigable
is relevant in deciding several questions,
for instance who has title to the bed of a
lake or a stream, whether there are public
rights to use a particular body of water,
.and whe@ther a particularvater course is
subject to federal regulation. To decide
each of these questions, it is necessary
to know whe@ther the water -in question is
navigable. But "navigable" is a word with
many meanings, and to say that water is
navigable for one purpose, such as deciding
who has t@itfe-to' "the. la'kebed, does not auto-
matically mean that it will be navigable'for
another purpose, such as deciding whether
the lake. is subject to federal regulation.
Thus,'in deciding whether water is navigable,
it is fundamentallyimpor-tant to define the
context in which the problem arises, because
the type of-problem will'determine which of
several tests of navigability'shbuld be used;
and which test is used will, of course, sub-
stantially determine whether the water is
found to be navigable or non-navigable."
Wait, G. Graham, Indiana Water Law and
Suggestions for Action, (1968)_.

40.

.2. Power in Navigable Waters:

The Federal power over navigation arises under Article 1,

Section 8, Clause 3 of the United States Constitution,,

commonly known as the "Commerce Clause."

Federal lawl briefly stated, finds waters which are

finavigable in fact" are navigable in law. The Daniel Ball,

77 U,S, 557 C18701, Waters "navigable in fact" are those

which when used in natural and ordinary conditions are

susceptible to use as highways of commerce over which inter-

state and foreign trade and.travel are or may be conducted.

U.S. v. Holt State Bank, 27Q- U.S. 49 (1926) This definition

of navigability has been extended to include waters which

once were*navigable or waters which may become navigable

with reasonable improvements. Oaklahoma v. Atkinson,

313 U.S. 508 C19411; U-..S- V, Appalachian Power Co., 311

U.S. 377 (1940). The Federal power over navigation is traced

to Gibbons v. Ogden, 22 U.S. 1.(1824) in which case Chief

Justice Marshall wrote:

"All America understand and uniformly under.
stood the word commerce to comprehend naviga-
tion . . . (a) power to regulate navigation,
is as expressly granted, as if that term had
been added to the word 'commerce'." Gibbons
v. Ogden, supra, at pages 190-193.

The authority of the United States is the regulation of

commerce on the waters and this authority is ffi broad as

the needs of commerce. U.S. v. Appalachian Power Co., 311

U.S. 377 (1940).

Federal jurisdiction over navigable waters has been

41.

broadened more recently by a requirement upon the United

States Corps of Engineers to exercise its permit authority

to regulate discharges of dredged or filled materials into

almost any watercourse which reaches a navigable water of the

.. ... .. .... ... .... ... .... .. .
United States. National Resources Defense Council-v.

Callaway, 392 Fed. Supp. 685 (D.D.C. 1975) U.S. Army Engineer

Regulation implementing Section 404 of the Federal Water

Pollution Control Act (1972)-, published in Federal Register,

July 25, 1975.

3. State Power -in Navigable Waters:

The State of Indiana' like its sister states, has certain

concurrent jurisdiction over navigable waters,, has ownership

of the beds of navigable watersf and has jurisdiction over

most non-navigable waters and their intra-state comm erce.

Indiana? along with other.Great Lakes statesi, traces

its sources of jurisdiction over navigable waters and their

beds to federal acts and the doctrine of "equal footing.'I

By an act of 1783 (and'the Deed of 1784), Virginia

deeded to the United States the Northwest Territory,, a region

which included what is now the State of Indiana. After the

American Revolutiont each state became a sovereign, and

in that character held absolute right to all of its navigable

waters and the soil or land under them for the benefit of

its citizens. Hardin v. Jordan, 140 U.S. 371 (1891).

The Deed of 1784 later was embodied in the ordinance

of 17871 which provi ded, among other things:

42.

(a) All the navigable waters of the Mississippi
and St. Lawrence River systems should be
free for commerce and navigation, and

(b All states later carved out of this North-
west region should be on an "equal footing"
with the'original states in all respects.

The Northwest Ordinance was superseded by the United

States Constitution in September of 17871 which affirmed

the "equal footing" doctrine.

"Upon' the admission of a state to the Union
the title of the United States to lands under'
lying navigable waters within the states
passes to it.- as incident to the transfer to
the state of local sovereignty, and is subject
only to the paramount power of the United
States to control such waters for purposes of
navigation in inter-state and foreign
commerce." U.S. v. Oregon, 295 U.S. 1, at
14 (1935).

The U.S. v. Oregon, case, supra, further restated the

law that the question of whether waters within a state under

which lands lie are navigable or non-na.vigable is a federal

one an d not a local one since-the effect upon the title

to such land arises out of federal action in admitting the

state to the union.

Since the federal power over navigable waters is not

such a power which is exclusive to the Congress, or prohibited

to the statesF or incompatible with the exercise by the state-

of a similar power, the state reserves concurrent jurisdiction.

In Gilman v. Philadelphia, 70 U.S. 1 (1865), the
City 'of Philadelphia wanted to construct a bridge over the

Schuylkill River and an upper dock.owner objected. The court

affirmed the power of the state (and its political subdivision)

to build the bridge as an action of the state in meeting its

43.

interest and responsibilities in matters of commerce and

transportation, after further finding that the federal government

did not object on the grounds that such construction interfered

with navigation.

Our earlier discussion related to waters which were

"navigable in factf" either in their natural condition or
after being improved and made suitable for use in inter@_

state commerce. The other class of navigable waters are

those which have been declared "navigable" by the state

legislature. The waters may be navigable only for intra-

state commerce and only forcertain distances or for

limited types of craft. Over these, the state has exclusive

jurisdiction and may authorize obstructions to be placed

in the waters. DePew v. Trustees o-fthe Wabash & Erie Canal,

5 Ind. 8 (1854); but cf. U.S. v. Holland, 373 F. Supp. 665

B. RIPARIAN RIGHTS IN NAVTGABLE WATERS:

1. Generally:

The rights of riparians on navigable waters differ in

some material aspects from riparians on non-navigable waters.

The riparian owner of land generally does not own the

bed of a navigable stream or lake unless he received the

patent therefor from the State.' As to patents issued by the
federal government prior to statehood" the presumption is that
the title to the bed of the'water did not pass. SeeP Waite,

G. Graham, Indiana Water Law, page 18.

44.

A riparian on navigable waters:

11
. . . must in all cases be subordinate to
the paramount public'right of navigation,
and such other-public rights incident thereto.
In other words all the private or individual
use and en*oymjnt of which the land is suscept-
3
ible, subordinate to and consistent with-
the public right, befong to the riparian
owner as against any other person seeking to
appropriate it to his individual use."'
Sherlock v. Bainbridge, 41 Ind. 35 (1872).
In addition to domestic purposes, .-the use of the riparian's

land may include use of the water for milling. This right of

a riparian to use the water power co-exists with the public

right of navigation, but in'conflict, the right of navigation

is paramount. The riparian may make-such other reasonable

uses of the stream as do not materially interfere with naviga-

tion. See: Bissell Chilled Plow Works v. South Bend Manu-

facturing Co., 64 Ind. App. 1, 111 N.E. 932 (1916).

The public right of navigation and the Public Trust

Doctrine, discussed laterY do not disturb the riparian's

property rights in the banks or beaches of the watercourse.

There is no public easement of access to the navigable waters

over the riparian's land unless such an easement has been
acquired by grant or perscription. How@ever__ the public

can use the banks or beaches of the watercourse to land

a boat in time of necessity or peril. Clarke v. Evansville

Boat Co., 44 Ind. App. 426. 88 N.E. 100 (1909); Sherlock v.

Bainbridge, supra.

Among other rights of riparians on navigable water

45.

is the right to'the flow of water for reasonable usef which

flow can not lawfully be divertedf increased or diminished.
If the riparian is injured by such interference, an action

may be maintained to abate or enjoin thenuisance. Bissell

Chilled Plow Works v. South Bend Mfg. Co., supra. The ripar7

ian may reasonably use the water for any purpose provided

that he does not obstruct or interfere with the public right

of_navigation. Sherlock v. Bainbridge, supra. The riparian

generally has the right of access to the navigable part

of the river from the abutting part of his tract. In the

case of Peck v. City of Michigan City, 149 Ind. 6. 49 N.E.

800 (1898), the plaintiff owned docks in the Michigan City

harbor. Sewage and sand from the sewers of Michigan City

filled in the harbor basin making plaintiff's dock area

non-navigable. The,court stated that the negligent obstruction

of navigable waters by the City to the damage of the riparian

was an injury for which compensation must be made. While

this riparian did not have a right to the submerged land
or to the water as such. he had a right of usage and a right

.to the profit growing out of the depth of the navigable

water as an easement incident-to the ownership of the adjacent

banks. Se e: Peck v. City of Michigan City, supra, (reversed

on other grounds).

Riparian owners along navigable streams have the

right to construct piers,. wharves, or docks on the submerged

46.

lands provided that the same is in aid of and does not

obstruct navigation and commerce. Illinois Central R.R. V.

Illinois,.146 U.S. 387 (1892); Sherlock v. Bainbridge,
supra; I.C. 13-..2-A-@,@4 (prohibiting obstruction). The right

of riparian owners along Lake Michigan to reclaim or build

upon the submerged lands of Lake Michigan is limited to the

dock or harbor line, and is subject to the prior approval by

the Indiana Department of Natural Resources through the

issuance of a fill permit. I.C. 18-13-"l et seq.

Riparians generally have the right of access to
navigable waters'. including 'the right to wharf out to the

point of navigabi lity, subject to the rules and regulations

which the state legislature may prescribe for the protection
of the right of public. '-Illinois Central R.R. v. Illinois,

-supra. Th e City of Evansville, on the Ohio River., was held

to have the power under her charter to establish water lines

and.make reasonable provisions for the protection of navigation.

The City had enacted an ordinance which prohibited the erection

of buildings below the high water mark on the Ohio River for

the stated reason that such.buildings might obstruct naviga

tion. The Indiana Supreme Court ruled that this was a valid

exercise of the police power. Martin v. City of Evansville.,

32 Ind.,85 (1869). However, another part of the same

ordinance prohibiting construction of buildings above the

high water markF without providing for just compensationt

was declared to be an unconstitutional taking in violation

47.

of the eminent domain statutes. Martin v. City of Evansville

supra.

C. ACCRETION!@:

1. Introduction:

Under the doctrine of riparian rights a ripar ian

is entitled to any land added to his water frontage by

accretion or reliction. Accretion is the process of gradual

and imperceptible increase of land caused by the contiguous.
waters depositing@earth sand and sediment, Alluvion'is

the deposit of earthi.sand and sediment which results from

the accretion process. In Indiana, title to the land formed

by accretion is generally vested in the riparian owner of the
land to which the alluvion attaches. Town-of'Freedom v. Norrisf
128 Ind. 377-,27 N.E.. 869 (1891); Irvin v. Krammond'. 58 Ind.

App. 540-V-108 NiE4-.539 (1915). Reliction is the increase--

of land caused by the recession of the waters of a river or

lake and-is also a source of.title.

AvulsionP the opposite of accretion, is the sudden and

rapid change of the course of'a river by which the river

abandons its old.channel and seeks a new channel. There is a

sudden shifting of the channel of a river which cuts off a

body of land such that afterwards that body of land remains

identifiable as land which existed before the shift,, and

which never became part of the river bed. An avulsion

has no affect upon title to land. Longabaugh v. Johnson,

48.

Ind. App. 321 N.E.2d 865 (1975).

Co. of St. Clair vs.-Lovingston, 90 U.S. 46 (1874)

is a major decision on matters of accretion. The court

at pag e 68. said:

11 . . . alluvion may be defined as an addition
to riparian land gradually and imperceptibly
made by the water to which the land is contig
uOus. It is different from reliction and is
the opposite of avulsion. The test as to what
is gradual and imperceptible in the sense of
the rule is, that though the witnesses may
@see from time to time that'progress has been
made,/'they could not perceive it while the
process was going on.

'Whether it is the effect of natural or
artificial causes makes no difference.
The result as to the ownership in either
case is the same. The riparian right to
future alluvion is a vested right. It is an
inherant and essential attribute of the original
property. The title to the increment rests
in the law of nature . . . If there.be a
gradual loss;-he must bear it. if a gradual
gain,. it is his.

2. Accretions -' Rationale:

There are many reasons submitted for the riparian

right to accretions. The reasons are not mutually exclusive.

often several will be discussed within one opinion supporting

the right to accretions. These reasons can be organized

generally into five major categories.

The fir'st-is deminimis non curat lex; that is, the

law does not notice trifling matters. A second reason may

be described as the "com pensation or natural justice" theory.

He who sustains the burden of losses of upland and of repairs

to his property occassioned by his contiquity to the water

49.

also ought to receive whatever benefits accrue to his property

through the water. .

A third reason suggests that it is in the interests of

the community that all land have an owner. This productivity

theory, which seeks the highest economic utility,,would

grant the alluvion to the riparian as the one able to make

the best use of the land. The gradual and imperceptibly

forming stri p of land would be of little productive use in

and by itself to anyone except the riparian to whom it would

have great utility.

A fourth reason is the "natural right analogy.

This reason,- proposed in*the Lovingston decisioni- supra,

is that just as the owner of the land has a right to-the

fruits of the trees,"and the owner of animals has the right

to their issuef the riparian has the right to alluvion as the

natural product of land ownership adjacent to water.--

A fifth reason is that the riparian owner has.the
right to accretions because his right of access'to the water

must be preserved.

3. Accretions.-.. Choice of Law-

The rights relating to accretion or re liction,'-'and

avulsionl- are ordinarily. governed by@ the law of the state
in whi'ch th e process 'occurs as local.1 aw affecting property.

St Louis v. Rutz,, 138 U.S. 226 (1891). Whether accretions

7
are produced by unusual flood$,.or attached to land reclaimed

by artificial means is generally a question which each state

50.

must decide for itself. Barney v. Keokuk, 94 U.S. 324 (1876).

However, in recent years, the United States Supreme

Court has used federal law rather than state or local law in

determining the ownership of property resulting from accretions.

In Hughes v. Washington, 389 U.S. 290@(1967), involving
State of Washington ocean front land,-Mr, Justice Black

disposed of the choice of law que .stion'by saying!

"The'rule deals with waters that lap both
the lands of the state and the boundaries
of the international sea. This relation-
ship., at this particular point of the marginal
sea is to o close to the vital interests of
the nation in its own boundaries to allow
it to be governed by'any.law but the
'Supreme.Law of.the Land'." -Huqhes v.
Washington. supra. at page 2937.

Mr. Justice Black stated that since Hughes was a

successor in title to the original federal-gr antee.' the

qu6s'tion to be decided was what rights were conveyed by the
federal grant'-.- an act done by the United States.. This "uestion-'

hq said,' .-ought to be answered under federal law. He then held

that under federal law Hughes was entitled to the accretion

that had been gradually formed along her property by the

Pacific Ocean. See also. Borax, Ltd. v. Los Angeles 296

U.S. 10 (1935). Mr.. Justice Stewart, in his concurring

opinion in the Hughes casel raises the complex "taking"
question. The State of Washington-'.'by a.constitutional

enactment in-1889''provided that henceforth'all accretions

along the Washington coast would belong to the State rather

than to the private riparian owners. Mr. Justice Stewart

51.

asked first whether such a prospective change in property
law constituted a compensable taking-' and if so .--did the

right to compensation "run with the land".

He then concluded that the "action" of the State

constituted an attempt to transfer priVate to public property

without payment.of just ccmpensation which "action" is

forbidden by the Du6 Process clause of the Fourteenth Amendment

to the United States Constitution.

Is the choice of law federal rather than local whenever

the property question affects the continental land boundaries

of the Vnited States? For federal law to be the choice-i'-

must there be a substantial federal right or interest involved?

Would the Hughes decision be applied to a Great

Lakes state as it was to an ocean state? It is our opinion

that in each of the foregoing the answer would be yes.-

'Accretion.- The Bonelli Cattle Company Case--

The issues in Bon.elli Cattle Co. v..Arizona 414

U.I-S. 313 (1973) gave the United States Supreme Court an

opportunity to re-"examine the accretion doctrine as it related

to inland navigable waters and chang .es occurring by artificial

means. While the decision first appeared.to offer scme

light to these issues, it lat-er appeared to bring back the clouds.
In Bonelli@`supr the riparian owneris land was

gradual1v moved eastward and reduced in size by the increasing

spread of-the Colorado River. It was conceded by all that
the Colorado River is a navigable river,-and that the State

of Arizona was the owner of the river bed as the river

52.

expanded and expanded.

In 1959, a Federal Bureau of Reclamation Project
deepened and rech anneled the Colorado River in the'area of

the Bonelli-land, thereby confining the stream of the river

to a substantially reduced portion of land.

Bonelli sued to quiet title in itself to the land

from which the river had withdrawn as a result of the

rechanneling project. The first Arizona Appellate Court held
with-Bon.elli,-that the changes either were accretive and

belonged to Bonelli, the riparian owner, or they were

avulsive, and belonged to Bonelli, the former owner, under

the doctrine of "re-emergence". See: Bonelli Cattle Company

Company v. Arizona, 11 Ariz..App. 412, 464 Pac.2d 999 (1970).

The Arizona Supreme Court reversed, holding that

under the "equal footing" doctrine and the Submerged Lands

Act, a federal enactment, Arizona held title to the beds

of all navigable streams within its borders. The federal

rechannelizaition project was "an engineering relocation of

the waters of the river by artificial means,." said the court;

therefor, it was avulsive, and Arizona was not divested of its

title.

Upon review, the United.States Supreme Court held

that the ownership of the land was gov'erned by federal law,

and the land surfaced by the narrowing of the river bed belongs

to Bunelli as a riparian owner. Bonelli Cattle Co. v. Arizona,

414 U.S. at 317 (1973).

53.

The choice of law question was'addressed by the

Supreme Court. It held that local law determines the interest

of riparian owners, but not in this case:

"We continue to adhere to the principle that
it is left to the states to determine the
rights of riparian owners in the beds of
navigable streams which under federal law,
belong to the states. But this doctrine does
not require that state law govern the instant
controversy. The issue before us is not what
rights the state has accorded private owners
in lands which the state holds as sovereign;
but rather, how far the sovereign right extends
under the equal footing doctrine and Submerged
Lands Act - whether the state retains title
to the lands formerly beneath the stream of
the Colorado River or whether that title is
defeasible by the.withdrawal of these waters.

in this case, the question of title
as between the state and a private land owner
necessarily depends upon a construction of
a 'right asserted under federal law'."
Bonelli Cattle Co. v. Arizona, 414 U.S. at
320 - 321 (1973).

The Court almost summarily held that the equal footing

doctrine and the Submerged Lands Act had no application to the

issue of title. But having determined that fed.-ral law

applied because of the state's claim of title under-this

doctrine and law, the Court proceeded to apply federal

common law to-the issue of ownership.

After reviewing the common law relating to accretions

and avulsion, and stating that federal law recognizes the

doctrines of accretion and avulsion, the court seems to

suggest that such a major man made project (rechannelization)

sounds in avulsion butreasons in accretion.

. . . (although) under state law, an avulsion(,)

54.

federal law must be applied with a view
toward the limited nature of the sovereign's
right in the river bed, and an analysis of the
interest of the state in Bonel'li, in light
.of the rationales for the federal common law
doctrine of accretion and avulsion, compell the
conclusion that as between the state, as owner
of the river bed, and Bonelli, as a riparian
owner, the surfacing of the subject land should
be vested in Bonelli." Bonell'i' Cattle Co. v.
Arizona, 414 U.S. at 328 (1973).

The Court, in discussing the vicissitudes of the

riparian owner, pointed out that he is at the mercy both of

natural forces and governmental forces. He loses by erosion.

He loses the riparian character by the imposition of the

navigational servitude. For these losses and limitations

he'receives no compensation. The Court concluded that,

therefore, the riparian rather than the state should gain

the land resurfaced in the course of such governmental

activity where such resurfaced land is not necessary to

the navigational project or to any navigational purpose.

The Bonelli decision, in our opinion, will hold.more

and more significanc.e as government undertakes reclamation

projects within a coastal zone. The stra ightening out of

a river or the channeling of a watercourse will raise

questions of ownership as to the resurfaced lands just

as it did in Bonelli. The Supreme Court's apparent view

is that such resurfaced land returns to the riparian owner

unless such land is necessary for a navigational or related

project or purpose. But in a footnote to its opinion,

the Court was careful to limit possible extensions of its

55.

decisions:

"But we need not here determine whether, in
a suit between private landowners (or in which
the state claims title in some capacity other
than as owner of the river bed), the differing
interests of the parties might require a holding
that the rechannelization should be treated as
avulsion. Nor need we determine whether, in
a suit between a riparian owner and a former
owner of surfaced land, the former should take
the property as an accretion or the latter as-
a re-emergence. It is only the state's claim
to title'under the equal footing doctrine which
required the invocation of federal law to resolve
the instant dispute." Bohelli Cattle Co. v.
Arizona, 414 U.S., footnote 27 at page 330.

5. Accretion vs. Re-err@ergence:

Under the doctrine of re-emergence, when identifiable

riparian land, once lost by erosion, subsequently re-emerges

as a result of perceptible change in the river course, title

to the surfaced land revests in its former owner. See:

Arkansas v. Tennessee, 246 U.S. 174. The re-emergence

doctrine has been accepted by several of the Great Lakes

States. The Illinois and Ohio p osition is that the riparian

does not lose' his rights to the submerged tract if it is

restored, either by artificial or natural means, and further,

that a substantial lapse of time does not bar the o wner's right
to reclaim the land. Chicago v. Ward, 169 Ill. 392, 48 N.E. 927

(1897).; Baumart v. McClure, 21 Ohio pp. 4921, 153 N.E. 211

(1926).

The contrary rule is that the surfaced land will not

belong to the original riparian unless it begins to form

along his shore.

56.

There appears to be no decision in Indiana which

discusses the concept of re-emergence.

6. Accretions - Artificial Influences and Other Responses:

The general rule is that a riparian takes title to

new land formed against his tract provided that the riparian

owner is not responsible for the*construction or maintenance

of an artificial influence upon the waters which causes the

accretion. Co. of St. Claire v. Lovingston, supra; Bonelli

Cattle Co. v. Arizona, supra.

This appears to be the rule in the neighboring Great

Lakes states of Illinois and.Ohio. Brundage v. Knox, 279 Ill.

540, 117 N.E. 123 (1917); State v. Lakefront East 45th

Street Corp., 13 7 Ohio St. 8, 27 N.E.2d 485 (1940). In

Michigan, the rule of law appears to grant the riparian title

to the accre tion regardless of his responsibility for the

artificial structures in the water which create it. Klais v.

Danowski, 373 Mich. 262, 129 N.W.2d 414 (1964).

It California, a tidal state, an.opposite result

applies. After first accepting the general rule as to

riparians and accretions, the Court limits accretions to

11natural causes", especially where the interests of the public

in navigable water beds owned by California seaward of the

main high water mark is in contest against the riparian.

"Where, however, the accretion has resulted,
not from -'natural causes, but from artificial
means, such as the erection of a structure
below the line of ordinary high water, there is
made out a case of . . . encroachment, and the
deposit of alluvion . . .does not inure to the

57.

(U
0
ol c 91
CD 0)
cm Im
co d)
LU
>
(D
cco F-
-r-
u
N (u tm (D
w c a 41 m c
0 m 0 w a - ale
D -ju u 0 0) c 41
L. a -
CL Cc 9;
c
o F;
0
41 0)
m 0
41 0 L.
It Q 0 a 0 41 .- CL
CD 0 c c cb
41 41
c c
c tc > m
m
c
4- 4@ 41
C > 0 41
0000. a)
(nu 0 L@ 0 Ln
u Ln w u -i z
40 r
41 u 00 - 0
c
z 41 03 0
u u L- to 1-i
(U (D d, 41 w
L. 41 0-
0 0 =
LU m 4 L- L)
4) 0
0 LrN L U
10 CL Go M L_ fn
m N 0 0
a@t c > 73 C
c 0 r- a-Z 0) C 0 L_ co
ui z CD c .!! .- = 0 - Z

C'i C 2t U- -i

cm 0 0
C%j
m 40 rn a a ol CD Ln oae Q o CD 'to CD co@ U;
m C) 't 't 0, Ol 't CD 't c C@ 0, CO. C3, Ln in
.. .. a (D CDa Q - N -0 cm 10 pn It Ln Ln %0 10
x u
ix 0 cm rn 't LA0 r-
u c a) Q) m 'r Ln
-1 4, m co 0-, ol C-1
LU ae 0
0i >
69 0 64 640 64 ta U- iq 4A 0 fA 0 #A 0 4A

benefit of the . . . upland owner, but the
right to recover possession thereof is in the
state . . . (It) retains its-character as
public land, being the nature of reclaimed
or filled in tidelands." City of Los Angeles
v. Anderson, 206 Cal. 66@,_275 P. 789 (1929Y-.

On the gulf coast of Florida, a municipality con-

ducted a public erosion control and beach stabilization

program which included a seawall. The seawallf after com-

pletion, resulted in an accretion to the land of the riparian.

The City sought to enjoin construction on the accreted

land by the riparian, and the riparian cross-sued to quiet

title. The court held that the accretion induced artificially

by the state or municipality in the ekercise of its police

power does hot alter the general rule -- the accretion belongs

to the riparian, whether caused by natural or artificial

means, so long as not crea ted by him. Bd. of Trustees vs.-

Medeira Beach Nomineel 272 So.2d 209 (1973).

In the Medeira Beach Nominee decision, supra, the

court noted the existance of a statute of Florida which

purported to vest in the state title to,accretions caused

by public works. The court found it did not have to decide

the constitutionality of that state law as applied to' riparians

because the state law was enacted after the erosion project

had begun. Consequently, it could not under any circumstances,

be applied retroactively.

There is precedence-for the.pos ition that a riparian

who places an artificial structure in the waters (a wharf)

with the consent or under the authority of a governmental

58.

unit Cthe state legislature) has the right to accretions

which occur as a result thereof. Roberts v. Brooks, 78

F. 411-(2nd Cir. 1897).

In this same connection, it should be noted that

Indiana has statutory regulation and authorization for-erection

structures .along the shoreline of Lake Michigan, I.C.

4-18-13-1, and along a navigable stream, I.C. 13-2-4-5.

However, there appears to be no Indiana decisions which con-

sider this authority to erect structures and the consequent

question'ok right to accretions.
7'. Riparian's Right to Accretions from Dredging
or Filling:
The state,.as sovereign, is the owner of the bed

of navigable waters. The riparian can acquire no rights

by filling such submerged lands without the authorization of

the state, except by the proper exercise of the riparian's

rights to wharf out to the channel of navigability. Dietrich

v. Northwestern Union Rwy.,.42 Wis. 248 (1877). For a similar

result in the case of dredging, see, Menomonie River Lumber

Co. v. Seidl, 149 Wis. 316, 135 N.W. 854 (1912). In Dietrich,

supra, a riparian 41ong the Wisconsin shore of Lake Michigan

built an embankment 85 feet in front of his property, and,

notwithstanding longtime use, the court said he did not

acquire title to-*it or to the intervening bed.

In another case a riparian along the Michigan shore

of -Lake-Michiganwas enjoined from filling upon lots he

contended he owned which were then submerged under water.

59.

People v. Broedell, 365 Mich. 201, 112 N.W. 2d 517 (1961).

In Broedell, supra, the court reaffirmed the Public Trust

Doctrine as related to the .beds of navigable waters, saying:

"The title of a state to'submerged lands in
the Great Lakes is impressed with a trust@
for the benefit of the public. The state
has a duty"to protect that trust and may not
surrender the rights of"the people thereto."
People v. Broedell, supra, 112 N.W.2d at 51'9.

Where the filling or reclamation of adjacent submerged

soil was expressly permitted by legislative enactment (i.e.
in Indiana under I.C.* 4-18- 13'-i as to Lake Michigan and

I.C. 13-2-4-5 as to navigable streams), it would seem that
the land filled and patentissued, if any, would create

title or right-of exclusive possession in the riparian.

See: Illinois Central R.R. v. Illinois, 146 U.S. 387 (1892);

also see: Miller v. Mendenhall,@43 Minn. 95, 44 N.W. 1141 (1890).

D. NAVIGATION SERVITUDE:

1. Definition and Rationalb:

The corollary of the navigational power is the naviga-

tion servitude. The navigation servitude has been defined

as "a shorthand -expression for the rule that in the exer-

cise of the navigation power certain private property may

taken without-compensation@.A' Morreale, Federal Power

in Western Waters: The Navigation Power and the Rule of No

Compensation, 3 Nat. Rls.. J. 1 (1963).

The courts have advanced several theories to explain

60.

this d octrine. one states.that the exercise of the naviga-

tion power is not a taking of property because the riparian's

title has always been a qualified one subject to the public

right of navigation and piscary.. Another reason submitted

is that the riparian had knowledge of the superior federal

right at acquisition and his purchase price reflected the

probability of loss through government action. A final

theory trace's the navigation power from Roman law through

Common law as.a right superior to all private rights.

.See: Not:e -- Publi-c Right of Nav@igation and the Rule of No

Compensation, 44 Notre Dame L. 236 (1968); Morreale, 3 Nat.

Rls. 1 21; 21 A.L.R. 206, 216-226.

2. Navigation Waters Affected:

The commentators have criticized the foregoing theories

and modestly challenged their validity. Nevertheless, the

doctrine is well accepted.--- Over the years, the-definition..

of which waters come under the navigation power, .and

therefor e which waters have imposed upon them a navigation

servitude, has expanded. In The Daniel Ball, 77 U.S. 557'

(1870), water navigable in fact was defined as navigable in

law. The definition was broadened to include waters which

were once navigable, and was further expanded to include

waters which may become navigable by making reasonable

improvements. Ar izona v. California, 283 U.S. 423 (1931);

Economy Light & Power Co. v. U.S., 256 U.S. 113 (1921);

-O..S. v. Appalachian Power Co., 311 U@.S. 377 (1940). As in

other areas under the Commerce clause, the definition has

61.

been expanded to include non-navigable streams which affect

the navigable capacity of navigable streams. U.S. v. Rio

Grande Irrigation Co., 174 U.S. @690 (1899).

3. App lication of Do ctrine to States:

Private rights are also subject to the right of the

state, as sovereign, where such state action is not in con-

flict with the paramount action of Congress. In like

fashion, the'states have ruled that no compensation need be

paid the riparian for damage occurring as a consequence of

their exercise of the navigation power.

4. Navigation Servitude Its Physical Limitations:

It has generally been held that the nav igation

servitude has its limits at the ordinary high water mark

of a navigable water, lake or ocean. U.S. v. Kansas City

Life Insurance Co., 339 U.S. 799 (1950).

When the bed of the river is so defined, the lands.below

the high water mark are subject always to the dominant or

navigation servitude in the interests of navigation, and

its exercise calls for no compensation. U.S. v. Willow

River Power Co., 324 U.S. 499 (1945). The Federal government,

for navigational purposest can deal not only1with the channel

of the navigable stream, but it can alter the level of the

water to any extent up to the ordinary high water mark without

being answerable to the riparian for injuries to structures

or uses below that level. U.S. v. Chicago, Milwaukee, St.

Paul and Pacific R.R. Co., 312 U.S. 592 (1941).

62.

..5. Navigation Servitude - Limitation on Compensation
for Taking Adjacent Properties:

The lands above the high water mark are sometimes re-

ferred to as fast lands, a nd their.taking by the government
requ.ires just'compensation, subject to certain limitations.

The limitations relate to the elements of damage for

which compensation will not be allowed. In the case of

U.S. v. Rand s, 389 U.S. 121 (1967),,the United States condemned

fast lands of a riparian along the Columbia River in Oregon

in connection with a federal lock and dam project. The

riparian claimed damages, by reason of the taking, for his

-loss of sand, gravel, agricultural purposes, and for the

loss of a port site.

The Supreme Court denied all of these elements of
add'e'd value to his land. It held.that when the fast lands

are take'rf compensation is required; however, the government-

can disregard the values to such lands arising from.access

to the stream as riot being pro per elements for compensation.

The interests of the riparian is subject to the government's
-,power to'control navigable waters, and the proper exercise

of such power does not give rise to compensation.

In U.S. v. Virginia Electric and Power Co., 365

U.S. 624 (1961), the Supreme Court held that only values

of a non-riparian nature were to be added as additional com-

pensation for,the taking of adjacent faP t lands.

6. Navigation Servitude - Section 595a, Relief
for the Condemnee:

Appare4tly in response to a congressional determination

63.

that the judicial interpretation in the Rands- decision,

supra, was inequitable to the riparian, Section 595a. was

added to the Rivers and Harbors Appropriation Act in December,

1970. 33 U.S.C. Sec. 595a.

Section 595, adopted in 1918, provided that in all

cases where private property is taken for public use in

connection with any improvement of rivers or waterways in

the United States,where in acquiring lands or easements

for such improvements, and a part only is'taken, the compen-

sation for damages shall be reduced by any special or direct

benefits to the remainder arising from the improvements.

33 U-S-C- 595; U.S. v. Commodore Park, Inc., 324 U.S. 386

(1945); U.S. v. River Rouge Improvement Co., 296 U.S. 411

(1926)..

Section 595a, effective in determining just compen-

sation in any proceedings after December 31, 1970, stated:

. . . the compensation to be paid for real property
taken by the United States above the normal
high water mark of navigable waters of the United
States shall be the fair value of such real property
based upon all uses to which such real property
may reasonably be put, including its highest
and best use, any of which uses may be dependent
upon access to or utilization of such navigable
water." 33 U.S.C. 595a.

Section 595a, continuing, states that in cases of

partial takings, no depreciation in the value of any remaining

real property shall be recognized and no compensation shall be

paid for damages to the remainder which result from loss of

or reduction of access from such remaining real property to

64.

such navigable waters because of the taking.

Now, however, where the taking is total, the land

improvements are to be valued with inclusion of those'water-

site elements previously denied to a riparian under the

judicial limitation imposed by the navigation servitude.

7. Navigation Servitude - Examples of No Compensation:

There are no damages for any loss of land or

structures lying between the low water and high water marks

which are taken for navigational purposes. The damage to

a railroad enbankment, U.S. v. Chicago, Milwaukee, St. Paul

and Pacific R.R., supra,- and the-loss of oyster beds, Lewis

Bluepoint Oyster Co. v. Briggs, 229 U.S. 82 (1913) represent

instances in which compensation was denied even though damage

was suffered.

Before Section 595a was adopted, certain elements of

damage were denied riparians whose fast lands, above the high
water mark,'were taken for waterway improvements. Loss of

access to the water,-loss'of a port site, loss of a power

plant site, and loss of water power are examples of elements

for which no compensation was added at the time of the taking

of the fast lands. U.S. v. Rand;; supra; U.S. v. Twin City

Power Co., 350 U.S. 222 (1956); and U.S. v. Chandler-Dunbar

Water Power Co., 229 U.S. 53 (1913).

E. THE MICHIGAN CITY HARBOR CASE: A CLASSIC EXAMPLE
OF RIPARIAN RIGHTS VERSUS NAVIGATION SERVITUDE:

1. Generally:

Generally, sand'beaches are renewed and restored by the

65.

ebb and flow of tides, where tides occur, and wave action.

In addition, beaches are renewed and nourished by the action

of the currents moving downward along the shoreline, often

referred to as the "littoral drift." Manmade obstructions

within the lake along the shore, such as breakwaters, piers

and groins, as well as extensions of land into the lake

by fills can have the effect of interrupting nature's form

and method of beach renewal and nourishment.,

2. The Michigan City Harbor Structures:

Over the years, the harbor of Michigan City has been

improved for navigation purposes by the construction of

breakwaters, artificial fill, and other manmade activities.

Beginning in 1970, the Corps of Engineers was directed to

survey the shoreline of Lake Michigan in the State of Indiana

in the interest of beach erosion control and related purposes.

Just prior thereto, the Corps of Engineers was directed to

investigate the affect of the Michigan City harbor structures

on the adjacent shorelines.

The latter report concluded that the Michigan City

harbor structures have interrupted the littoral drift in

the harbor area and-are partially responsible for the erosion,

damage, and downdrift of the Michigan City harbor. In

response to both problems, the Corps of Engineers directed

that a detailed project study be incorporated into an overall

Indiana shoreline erosion study, particularly in compliance

with section 111 of the 1968 River and Harbor Act. 33 U.S.C.

66.

426 (i)

An interim report was published in October of 1975.

Interim Report on Indiana Shoreline Erosion, Detailed Interim

Feasibility Report, October, 1975.

The interim report limited its investigation of the

erosion problems along the shore between the east boundary of

Michigan City's Washington Park and the east boundary of the

Indiana Dunes State Park. The shoreline is approximately

seven miles long and contains the most severe erosion problem

in the entire study area. In-addition, the influence of

the Michigan City harbor structures on the erosion problems

of the downdrift shore is limited to this same seven mile long area.

3. Interim Shore Construction and Proposed
Shore Construction;

In 1973, the National Parks Service was authorized to,

and the Corps of Engineers on its behalf, constructed 13,000

linear feet of rock or stone revetmant--upon the lakeward

side of Lakeshore Drive lying generally north of the Town

of Beverly Shores. In addition, the Corps of Engineers

placed about 340,000 tons of sand along the 3,000 foot shore-

line at Mount Baldy, just east of the Michigan City harbor.

The 1975 interim report, among many alternatives,

selected for construction implementation a partial beach

nourishment plan. This would provide only partial protection

and would limit the protection to that portion of the erosion

problem attributable to the Michigan City harbor structures.

67.

The existing interim revetment would remain and be strengthened

at its present points of stress. Initially, 1.7 million cubic

yards of sand beach fill material would be excavated from

a'potential borrow area located updrift of the Michigan City

harbor and pumped to shore to form a protective beach area

from the east end of the existing revetment eastward to

the Northern Indiana Public Service property lying just

east of Mount Baldy in Michigan City. Periodic sand nourish-

ment would be required, but the actual nourishment would

be made every ten years in an amount approximate to that

initially laid. Although this plan is considered one of

the lower cost plans, it is, like the others, not economically

justified from a cost-benef it analysis.

4. Legal Matters:

Prior to the construction on the interim shore protection

plan involving-the stone revetment and the sand nourishment,

the State of Indiana and.the United States of America entered

into a license agreement under which the State of Indiana

granted a license to the United States of America to use

and occupy certain tracts, submerged lands of Lake Michigan

immediately off shore, on which to construct the stone revet-

ment and to construct the experimental beach nourishment

sand fill. The license agre'ement was dated August 28, 1973,

and executed at that time on behalf of the State of Indiana

by the Director of the Department of Natural Resources,

and on behalf of the United States of America by the Regional

Director of the National Park Service. Subsequently, in

68.

September, 1975, the signatures were notarized, and the

agreement approved by the Governor of the State of Indiana.

The agreement has a fixed term of ten years. The United

States of America agrees to cover or remove its revetments

in the event that the levels of the Lake are such that the

beaches are restored, and further agrees that at said -Lime

it will make no clsim of interest in any of the property

or beaches so restored. The United States of America acknowl-

edges that it.ha,s no claim,.interest or estate whatsoever

by reason of the license granted by the State of Indiana

or by reason of its use and'occupancy of the submerged lands.

The bed of Lake Michigan is owned by the State of

Indiana and the revetment and placement of sand is upon the

land owned by the State. It would appear that this construc-

tion is not directly related to navigation or.navigational

pu rposes an d as such, the navigational servitude would appear

not to be applicable. The National Park Service, as the

administrator of the Indiana Dunes National Lakeshore, is

treated as a riparian owner seeking to protect its property

from shore erosion. These matters have been reduced'to

writing probably because the State of Indiana was concerned

of the magnitude of the project, and the fact that the United

States of America was doingthe constructi on. In addition,

such a writing would negate any implication that such construc-

tion was authorized under -I.C. 4-18-13-1, the right of a

riparian-to fill in and reclaim submerged land adjacent

to the Lake within the width of his ownership.

69.

In section 5 of the license agreement, it is stated

that upon the restoration of beaches, the same shall remain

in perpetuity in the name-of the-State of Indiana-. This

would appear to be inconsistent with the general law of

Indiana and the common law of the United States in relation

to accretions, and more particularly in this instance to

reliction. Ordinarily, the abutting riparian owner, in

this case the United States of America as owner of the Indiana

Dunes National Lakeshore, would be the owner of the restored

beach. Likewise, the riparian owner in front of Mount Baldy

would be the owner of the beach artificially nourished.

The United States of America may have transferred its right

to such accretions to the State of Indiana in consideration

of the license granted it to do the construction work..

The long range plan for partial beach nourishment.by
placing 1.7. million cubic yards of sand fill east of the

existing revetments, and.then nourishing it periodically

every ten years, also raises legal considerations.

While the interim report states that this plan is con-

sistent with the desires of the Park Service and its plans

for development of the Indiana Dunes National Lakeshore,

the scope of.the plan is to mitigate the erosion problem

attributable to the Michigan City harbor structures. Interim

Report on Indiana Shoreline Erosion, at page D-35. As such,

33 U.S.C. �426i authorizes the Secretary of the Army, acting

through the'Chief of Engineers, to construct projects for

70.

the mitigation of shore damages attibutable to federal

navigation works. The entire cost of such construction is

to be borne by the United States.

Since the long term construction plan may be viewed

to relate to navigation and navig@Ltional purposes, i.e. the

mitigation of damage from Michigan City harbor navigation

structures, a similar license agreement may not be required

between the 'United States and the State of Indiana. However,

the source of the potential sand borrow is the bed of Lake

Michigan east of-the Michigan,City harbor. The removal
-of sand from the bed of Lake Michigan ordinarily is an act

controlled by the State at Indiana. The site of the potential

sand borrow is removed from the site of the work, and at that

site, it is not necessary for navigational purposes. The

purchase or the conditional acquisition of such sand borrow

may be required of the United States by the State of Indiana.

Once the artificial sand nourishment program is completed,

it appears clear that the expanded beach area is an accretion,

the title to which ordinarily would be in the ripari an owner.

In this instance, the United States is both a riparian owner,

(Department of Interior - Park Service) and also responsible

for the.artificial influence whiA created the shore erosion

and required the sand nourishment (Department of Army - Corps

of Engineers). Notwithstanding, it would appear that the

Indiana Dunes National lakeshore and other property owners

along the area to be nourished artificially by borrowed sand,

71.

as riparians, would take title to the new land formed against

their tracts. See: Bonelli Cattle-Co. v. Arizona, 414 U.S.

313-(1973); Board of Trustees v. Medeira Beach Nominee, 272

S.2d 209 (1973), 63 A.L.R.3d 241.

72.

Vi.

PUBLIC PROPERTY RIGHTS

A. PUBLIC TRUST DOCTRINE:

1. The Historical Background:

The Public Trust Doctrine received much attention in

Roman and English Law. The nature of property rights in

rivers, the sea and the seashore had its historical beginnings

under these early legal systems, and they represent the source

of the modern American Public Trust Doctrine.

Professor Joseph L. Sax, in 68 Mich. L. Rev. 473 (1970)

described this historical background.

"First, certain interests, such as navigation
and fishing, were sought to be preserved for
the benefit of the public; . . . second, while
it was understood that in certain common pro-
perties - such as the seashore, highways, and
running water: 'perpetual use was dedicated
to the public,' it has never been clear whether
the.public-had an enforceable right to prevent
infringement of these interests. Although the
state apparently did protect public uses,' no
evidence is available that public rights could
be asserted against a recalcitrant government.

"In England, the history of public uses is
closely involved with a struggle between the
Crown and Parliament. . .

"But it is important to realize that the inability
of the sovereign to alienate.Crown lands was not
a restriction upon government generally, but
only upon the King: . . .

Thus, whatever restraints the law might have imposed.

73.

upon a King, it was nonetheless within the authority of

Parliament, exercising what we would call the police power,

to enlarge or diminish the public rights for some legitimate

public purpose. Professor Sax, continuing:

"As carried over to American law, this history
has produced great confusion. our system has
adopted a dual approach to public property
which reflects both the Roman and the English
notion that certain public uses ought to be
specially protected. . ."

It ha s been a general rule that land titles from

the federal government run down only to the high water mark,

with title seaward of that point remaining in the states.

The states, upon their admission to the Union, took such

shorelands in "trusteeship" for the public. Shively v. Bowlby,

152 U.S. 1 (1894).

"Whether and to what extent the trusteeship
constrains the states in their dealings with
such land has, however, been a subject of
much controversy. If the trusteeship puts
such-lands wholly beyond the police power of
the state, making them inalienable and un-
changeable in use, then the public right is
quite an extraordinary one, restraining
government in ways that neither Roman nor
English law seems to have contemplated.
Conversely,.if the trust in American law
implies nothing more than that state authority
must be exercised consistent with the general
police power, then the trust imposes no
restrain on government beyond that which is
implicit in all judicial review of state action
the challengExiconduct, to be valid, must be
exercised for a public purpose and must not
merely be a gift of public property for a
strictly private purpose.

"The question, then, is whether the public
trust concept has some meaning between the two
poles; whether there is, in the name of the
public trust, any judicially enforceable right

74.

which restrains governmental activities dealing
with particular interests such as shorelands or
parklands, and which is more stringent than
are-the restraints applicable to governmental
dealings generally.

"Three types of restrictions on governmental
authority are often thought to be imposed by
the public trust: first, the property subject
to the trust must not only be used for a public
purpose, but it must be held available for
use by the general public; second, the property
may not be sold, even for a fair cash equiva-
lent; and third, the property must be maintained
for particular types of uses . . .

"These three arguments have been at the center
of the controversy and confusion that has
swirled around,the Public Trust Doctrine in
American law. Confusion has arisen from the
failure of many courts to distinguish between
the government's general obligation to act
for the public benefit, and the special, and
more demanding, obligation which it may have
as a trustee of certain public resources."
Sa.X,. Joseph L: The Public Trust Doctrine in
Natural Resource Law: Effective-Judicial Inter-
vention,.68 Mich. L..Rev. 473, 475-478

2. Public Trust Doctrine - Application to Great Lakes
States:

The lands and waters of the Midwestern United States

were once part of a region known as the Northwest Territory,

from which the present states of Indiana, Illinois, Wisconsin

and Michigan were carved. By an Act of 1783, under the Deed

of 1784, this territory was deeded to the United States by

the State of Virginia. This deed later became embodied in

the Ordinance of 1787, commonly known as the Northwest Ordinance.

The Northwest Ordinance, enacted in July of 1787, provided in

part, that all states to be created out of this region should

be on an "equal footing" with the original 13 states in all

75.

respects.. The Northwest ordinance was superseded by the

United States Constitution in September of 1787, and the

Constitution affirmed the "equal footing" doctrine. Follow-

ing the American Revolution, the 13 Colonies became independent

sovereigns, and in this character they succeeded to the

incidence of sovereignty and the prerogatives which had

belonged either to the Crown or to Parliament. They retained

these upon the formation of a Union subject to those rights

surrendered to the federal government in the United States

Constitution. Dudsik, Law of the Seashore, the M.I.T. Press,

1972,,page 90.

"'By the time of the Magna Carta, private
ownership . .-., had proliferated to the
nation's waterways. This initiated a grad-
,ual expansion of public rights in tidelands
and navigable waters, which culminated in
the application of the "Public Trust" theory
to these areas by the English common law.
Under the Public Trust, certain public rights
were reserved or.held "in trust" for the
common use and benefit of the public even if
the proprietary title had been granted to
individual subjects. Such was the state of
the English law at the time of the American
Revolution." Dudsik, supra, at pages 89-90.

The English distinction between tidal and non-tidal

waters has been modified by most American courts to a

distinction between navigable and non-navigable waters for

geologic and geographic reasons. See: King, Lauer, Ziegler,

"Michigan Water Law" from Conference on Water Resources and

the Law, September 4 - 6, 1957, University of Michigan Law

School.

. . . While the particular Engli-sh experience

76.

@which gave rise to the controversy over those
interests (fishery and navigation) was not
duplicated in America, the underlying concept
was readily adopted. Thus, American law
courts held it "inconceivable" that any person
should claim a private property interest in the
navigable waters of the United States." Sax, The
Public Trust Doctrine, supra, at page 484.

3. The Illinois Central Railroad v. Illinois
case, a landmark for American Public Trust Doctrine:

The judicial interpretation of the historical background

of-the Public Trust Doctrine and the determination of its

application to the State of Illinois, and thereby to the

sister Great Lakes States carved out of the Northwest

Territory, was made in the.decision of the United States

Supreme Court in Illinois Central R.R. v. Illinois, 146

U.S. 387 (1892).

Under the facts of the case, in 1869 the Illinois

legislature made an extensive gra nt of submerged lands,

in fee simple, to the Illinois Central Railroad. The grant

included all the.land'underlying Lake Michigan for one mile

out from the shoreline and extending one mile in length

along the central business district of Chicago, an area

containing more than 1,000 acres and comprising virtually

all of the entire commercial waterfront of the City. By

1873, the Illinois legislature repealed the 1869 grant and

then brought an action at law to have the original deed

declared invalid.

The decision was in favor of the State of Illinois

upholding its claim to title on the ground that the express

77.

conveyance of these lands'was beyond the power of the State

legislature. The court stated that the State of Illinois

held title to the navigable waters of Lake Michigan in a

character different from that which the State holds land

intended for sale. Continuing, the court said:

"It is a title held in trust for the people of
the State that they may enjoy the navigation
of the waters, carry on commerce over them,
and have liberty of fishing therein free from
the obstruction of interferences of private
parties." Illinois Central R.R. v. Illinois,
146 U.S. at 452.

In this 1892 Illinois Central decision, supra, the

court posed the question as to whether the legislature was

competent to deprive the State of its ownership of the sub-

merged. lands in the harbor of Chicago, or of the control of its

waters, or to allow the railroad to..hold it-against any

future exercise of power by the State. It answered its

question in the negative.

"That the State holds the title to the lands under
the navigable waters of Lake Michigan, within its
limits, in the same manner that the State holds
title.to soils under tidewater, by the common law',
we have always shown, and that title necessarily
carries with it control over the waters above
them whenever the lands are subjected to use.
But it is a title different in character from
that which the state holds in lands intended
for sale. It is different from the title which
the United States holds in the public lands
which are open to pre-emption.and sale. It is
a title held in trust for the people of the
state that they may enjoy the navigation of the
waters, carry on commerce over them, and have
the liberty of fishing therein free from-the
obstruction or interference of private parties.
The interests of the people in the navigation
of the waters and in commerce over them may be
improved in many instances for which

78.

purpose the state may grant parcels of the
submerged land; and so long as there are dispo-
sitions made for such.purpose, no valid object-
ions can be made to the grants . . . But that
is a very different doctrine from the one'
which sanctioned the application of the general
control of the state over lands under the naviga-
.ble waters of an entire harbor or bay, or of a
sea or lake. Such application is not consis-
tant with the exercise of that trust which
requires that government of thestate pre-
serve such waters for the use of the public.
The trust devolving upon the state to the
public, and which can only be discharged by
@the management,and control of the property
in which the public has an interest, cannot
be relinquished by a transfer of the property."

In another decision seven years later involving

the Illinois Central Railroad and the City of Chicago, the.

Supreme Court drew a similar conclusion as to an area of

only four or five acres. Illinois Central R.R. v. Chicago,

176 U.S. 646 (1900). While the earlier decision rested

largely on the size and value of the tract which the State

hadconveyed, this later decision held that the railroad

could not acquire shallow off shore submerged lands to build

its facilities unless the authority to do so was granted in

the clearest and most unmistakeable language. The Court then

held that such authority was not so granted. In this later

decision, the Court affirmed the first Illinois Central

Railroad case as the law in I llinois, but focused in with

respect to the City to*the lack of a clear legislative intent

to make a disposition. The Court.appeared to qualify the

earlier ruling by saying that the State may dispose of public

trust lands if the useage for which the grant is made is

79.

not injurious to the public interest, and if the intent

to make such a grant is expressly manifest.

4. Public Trust Doctrine -.Is it a Local Property Issue?

The.language in Illinois Central R.R. v. Illinois,

supra, was clear that the State took title to.the navigable

waters at the time of statehood under a "public trust."

Nevertheless, decisions made shortly thereafter suggested

that whether the State accepted a public trust doctrine

was a question of local law, a property issue, with regard

to which the decisions of the State Courts were to be con-

clusive. Illinois Central R.R v@-Chicago, 176 U.S. 646,

at 659 (1900); Shively v. Bowlby, 152 U.S. 1 (1894).

In each of the above cases, a quotation from Hardin v.

Jordan, 140 U.S. 371 (1890), is made to support the proposi-

tion. The quotation is as follows:

. . . But it depends on the law of each state
as to what waters and to what extent this per-
ogative of the state over the-lands under waters
shall be exercised." Hardin v. Jordan, supral
at-382.

This quotation was not made by the court in the Hardin

decision as to the acceptance or non-acceptance of the Public

Trust Doctrine. Rather,.this quotation was part of a larger

paragraph which raised the question as to whether the state

would accept the English common law rule of navigability or

accept the enlarged American rule.

The Hardin decision, supra, in context,reads as follows:
"This right of the'states to regulate and
control the shores of tidewaters and the land

80.

under th em, is the same as that which is
exercised by the Crown in England. In this.
country, the same rule has been extended to
our great navigable lakes, which are treated
as inland seas; and also, in some of the states,
to navigable waters, as the Mississippi, the
Missouri, the Ohio, and, in Pennsylvania, to'
all the perverent rivers of the State; but it
depends on the law of each state to what
waters and to what extent this prerogative
of the state over the lands under waters shall
be exercised. In the case of Barney vs. Keokuk,.
94 U. S. 324, we held that it was for the several
states themselves to determine this question,
and that if they chose to resign to the riparian
proprietor rights which property belonged to
them, in their sovereign capacity, it is not
for others,to raise objections."

What has occurred in,'some later decisions is the lack of

proper context for the quotation made. The correct legal

property law issue is: which definition of navigable waters

is to be employed within the Public Trust Doctrine, not

whether or not the Public Trust Doctrine is to be accepted

by the state.

5. The Public Trust Doctrine in Indiana:

Indiana has had no decision which presents the matter

of the Public Trust Doctrine in this St ate in clear and unequi-

vocal terms. Unlike our sister Great Lakes states which speak

to a Public Trust Doctrine in many cases and under varying

factual circumstances, Indiana offers almost no discussion

of significance.

In a very early decision, Cox v. State, 3 Blackf. 193

(1833), the Indiana Supreme Court spoke in "trust" terms.

A case involved a criminal prosecution of a defendant for

maintaining a dam across the White River which completely

81.

blocked navigation. Following his conviction, the defendant

appealed arguing that the statute could-not apply to the

White River because the river was declared a public highway

and forever fr ee under the Northwest Ordinance. The court

affirmed the conviction and held that the state had authority

to compel the removal of the obstruction to navigation. In

speaking of the navigable river, the court said:

The possession, use and occupation,
have been granted to the citizens of the
several states and the territories of the
Union, and.the United States stands seized,
to their and each of their use and benefit,
for the purposes contained in the grant (of
title to the beds of navigable waters)."

and later:

except that she (state) is prohibited
by compact, from the right of converting
them to any other use than public highways,,
and obstructing them with any artifi'cial
obstruction Cox v. State ;- supra,
3 Blackf. at 196 (1833).

Two other Indiana decisions presented. factual circum-

stances under which, in our opinion, the court could have

expressed "public trust" doctrine language, but e lected to

decide the issues on more narrow grounds.

In Lake Sand Co. v. State, 69 Ind. App.. 439, 120 N.E.

714 (1918), the Attorney General sued to enjoin a non-resident

corporation for removing sand and gravel from the bed of

Lake Michigan. It was the defendant's theory, and he so

conceded, that the bed of Lake Michigan is held by the State

of Indiana in trust for the public. He then said that he

82.

was doing no more than any other person might do, and until

the.activity of removing sand and gravel was regulated by

the State, no restraint was possible. The court upheld

the injunction and answered the defendant by stating that

"citizens" refer to Indiana and not to the nation, and that

as a foreign corporation, the defendant is not a citizen

under the Constitution to gain the privileges and immunities

of-the-citizens of several states..

In State ex rel. Indiana Department of-Conservation v.

Kivett, 220 Ind. 823, 95 N.E.2d 145 (1950),'a suit was brought

to enjoin removal-of sand and gravel from the White River.

At.the time of suit, the White River was not navigable. In

affirming the injunction, the court said that the question of

navigability was to be determined at the time that Indiana

became a state, and.that at such time the White River was in

fact navigable. Therefore, Indiana owned the bed of the

water, and any removal of the sand and gravel required

its prior permission.

By an Act'of 1919, the Indiana State legislature

created a Department of Conservation which had among its

powers relating to land and.waters, the "general charge and

supervision of the navigable streams and water courses of

the state within the government survey meanderlines.'.

-See.: I.C. 14-3-1-14-. In 1929,.:this section was amended
to read "to have general charge: and supervision of the navigable

waters of the state and it has been amended further to

83.

to have general charge and@supprvision of the navigable

waters. of the State, including, but not limited to, making

of rules and regulations pertaining to the carrying, trans-

porting, or discharge of guns and firearms, fishing, and

hunting activities upon, or within 500 yards, of said navigable

waters as the same shall appear necessary and appropriate

therefor, having due regard to considerations of public

health and safety and recommendations of the Conservation

(Natural Resources) Department, Division of Fish and Game."

I.C.- 14-3-1-14(9).

Among other powers which have continued in the Department

since 1919, is the power to issue permits to take sand,-

gravel and other minerals from the bed of any navigable

waters of the State. I.C. 14-1tl-14(10). Also, there are

.provisions for the payment of the permit fee and the payment

of an amount for the-rea sonable value of the sand, gravel

and other minerals taken.

In 1947, the Indiana State legislature-decla*red certain
:.public rights in naturaf'reso-urces and natural scenic beauty

of @-Indiana:

"The natural resources and the natural scenic
beauty of Indiana are declared to be a public
right, and the public of _' Indiana is hereby
declared to have the vested right in the pre-
servation, protection and enjoyment of all
the public fresh water lakes of Indiana in
their present state, and the use of such
waters for recreational purposes."
I.C. 13-2-14-1

In defining the terms, the legislature said:

"The natural resources of public fresh water

84.

lakes shall mean the water, fish, plant life
and minerals, and the natural scenic beauty
shall mean the natural condition as left by
nature without man made additions or alterations."
I.C. 13-2-14-2.

In defining public fresh water lakes as all lakes which

have been,,used by the pub.,lic.with the acquiescence-of'any

or all riparian owners, the Act specifically excluded Lake

Michigan and excluded any lake lying wholly within the

corporate limits of any city in Lake County, Indiana.

Again in 1955, the Indiana State legislature made

certain decl,arations with regard to the water resources

of the state:

"It is hereby declared that the general welfare
of the people of the State of Indiana requires
that*surface water resources of the State be
put to beneficial uses to the fullest extent
and that-the use of water for nonbeneficial
uses be prevented. . . to the end that the best
interestand welfare-of;-*the people of the state
will be. served.*" I-.C@. 13-2-1-1.
"Water in any natural stream, natural lake or
other natural body of water in the state of
Indiana which may be,applied,to any useful
and.beneficial purpose is hereby declared to
be a natural resource and public water of the
State of Indiana and subject to control and/or
regulation for the,public welfare as hereinafter
determined by the ge .neral Assembly of the State
of Indiana. I-C. 13-2-1-2.

In 1951, the State Legislature declared such a public
policy with respect' to ground wate r resources of the State,
and provided for its regulation by the Department of Natural

I*-C. 13-2-2-2.,.
Thecases cited above and the declarations of public

85.

policy made by the State legislature do not evidence a clear
and convincing recognition of the Public Trust Doctrine.
Not withstanding, constantly changing political, social
and economic conditions bring new issues to the courts for
interpretation and decision. The law is a reflection of
the needs of society, and in many respects, society creates

the law.
As Judge Krentzman stated in U.S. v. Holland, supra,
in discussing the intention of the Congress to expand to its

limits the power over waters of the United States:
"The Court realizes that the thought of pre-
serving hugh stretches of coastline in a
natural state and forbidding all commercial
development in coastal areas is unrealistic.
This is a societal choice which the government
must observe. But the government can and
should insure that the public interest in
protecting all life forms is at least considered in the development
plans. Any expense
that might be incurred by the evaluative
process will be dwarfed by the cost of neglect-
ing the ecological interests." 373 F. Supp.
at 676.

Public concern about natural resources and the

envir
onmental quality is being felt at all levels of govern-

ment and society, and the enforcement of public rights in

these natural resources is being presented daily in our

courts. Within this context, what may have been considered

ten, twenty or thirty years ago as a purpose which would

serve the public and to which the navigable waters o f the

State of Indiana might be used, may today be considered

totally unfit for public purpose.

86.

6.- Uses Approved in Public Trust Doctrine States:

'111irldi!f -and Wisco nsin, as well as Michigan, have

long accepted the'doctrine of Public Trust in navigable waters

as a part of its law. Likewise, so has the State of Michigan.

These state legislatures have authorized the disposition of

the submerged lands for differing purposes, and several have

been subject-to scrutiny by the courts.

In 1958,,th.e Illinois Supereme Court approved the use

of lands reclailned from the bed of Lake Michigan for construc-

tion of the McCormick Place.-..in Chicago, say.ing:

"We recognize that-.subi@erged lands reclaimed
are impressed with a trust in the public interest.
However, the facility here contemplated is in the
public interdst'and has been approved by the pro-
per authorities.. Under circumstances such as
these we find'no.violation of that trust."
.,Fairbank v. Stratten, 14 Ill.2d 307, at.319 (1958).

...The Supreme Court-of Illinois was again called upon to

consider the Public Trust Doctrine-in' connection with the con-

veyance of 196.40acres of submerged Lake Michigan bed to the
y

United States Steel Corporation. The'court, in Droste v.

Kerner, 34 Ill.2d 495, 217 N.E. M73(1966)1@ first held
that the taxpayer plaintiffs had no standing to raise the
public trust issue, but went on to discuss it at some length
in rejecting the argument:

"It was.well settled, prior to,the Constitu-
tion' of 1870,'that subject to the paramount
power of the federal government over commerce.,
including navigation, title to the lands
submerged by the waters of Lake Michigan

87.

lying within the boundaries of Illinois rested
in the State of Illinois in trust to protect
the rights of the public in the use of those
navigable waters for fishing, boating, recrea-
tion and other public purposes. This did not
mean, however, that the shoreline was required
forever to remain unchanged except by natural
causes. An equally important part of the
doctrine was that the state might from time to
time relinquish its trust as to specific
parcels of submerged land by action of the
General Assembly in granting to a shore owner
title to those lands adjacent to his property
where the grant was in aid of commerce and
where the public interest in the lands and
waters remaining was not substantially impaired

"The proper execution of this public trust with
respect to submerged lands requires that the con-
veyance of any particular parcel to a shore owner
be consistent with the public interest and not
impair the intrest of the public in the lands
and waters remaining."

The court further stated that the legislature had
found that such a grant was made in aid of commerce and would
create no impairment of the public interest in the lands
and waters reamining, but would instead result in the conversion
of otherwise useless and unproductive submerged land into
an important commercial development to the benefit of the
people of the State of Illinois.

In 1970, in the case of Paepcke v. Public Building
Commission, 46 111.2d 330, 263 N.E.2d 11, (1970) the
Supreme Court of Illinois reversed its position in Droste,
supra, respecting the standing of a taxpayer to sue to
protect the public interest, saying:

"Upon serious consideration of this question
we now believe that portion of the opinion in

88.

Droste dealing with the right and standing of
the plaintiff to sue should be overruled, as
should any other former decisions of this court
holding that a citizen and taxpayer has no
right, in the absence of statute, to bring
an action to enforce the trust upon which
public property is held unless he is able to
allege and prove special damage to his pro-
party. If the "public trust" doctrine is
to have any meaning or vitality at all, the
members of the public, at least taxpayers who
are the beneficiaries of that trust, must
have the right and standing to enforce it.
To tell them that they must wait upon govern-
mental action is often an effectual denial
of the right for all time." Paepcke, supra,
46 111.2d, at 343, 344.

The Supreme Court of Wisconsin, it is suggested by
Professor Sax, has made a better effort to work out a reasonable
meaning for the Public Trust Doctrine than the courts of any
other state. In one of its earliest cases, Priewe v. Wisconsin
State Land and Improvement Co., 93 Wisc. 534, 67 N.W. 918
(1896), the court struck down a statute which allowed a
scheme by which a promoter would drain a navigable lake and
obtain the title to the underlying land. After first deciding
that whether a particular act is for a public or private
purpose is the province of the judiciary, the court said:

"... If the state had power ... to convey
and relinquish ... all its right, title and
interest in and to all lands lying within the
limits of Muskego Lake, then it may, in a similar
manner, convey and relinquish to private
persons or corporations all such right, title
and interest in and to every one of the 1,240
lakes in Wisconsin." Priewe, supra, 93 Wis.
at 552, 67 N.W. at 922.

Such an extension, concluded the court, simply could
not be viewed as a lawful exercise of legislative power by

89.

the sovereign holding suc h resources in trust for,the public.

Over the following years the' Wisconsin courts developed the

concept that public trust lands can be devoted to private uses

only if there is a clear justification for the change,and

in the process of refinement of that concept now consider

five factors-to be considered in Public Trust Doctrine cases:

1. Public bodies will control the use of the
@a rea;

.-The area will be devoted to public purposes
and'open to the public;'

3. _The diminution of-lake area will be very
small compared.with the whole of the water
involved;

4. No-.,,one of the public uses of the water,-
as-a stream or lake, will be.destroyed or
greatly impaired;
5. The-disappointment of those members of the
.@_public who,may desire to boat,.,f.ish or
swim in th.e.area to be filled.is negligible
when.compared 'with the greater c onvenience
to be afforded to those members of the public
who use the new purpose.

One of the earlier cases leading to the enunciation of

these five factors and involved in the process of refinement

of the Wisconsin doctrine,' 'was the City of Milwaukee's proposed

exchange of land with a private steel company in order to.
obtain shorela'nd for development of'the city's harbor.

City'af Mi'lwaukee-v.--State, 193 Wis. 423, 214 N.W. 820
-(1-927)' The court found that the filling of a relatively

few acres of Lakd Michigan would not have a substantial

impact on local public uses. The court'f'ound the exchange

90.

economic ally fair and further found the goal of develop ing

a public harbor to be of considerable benefit to the whole

of the affected public. In addition, the loss of swimming

and fishing in the area was modest and.-these activities

could easily be engaged in nearby unfilled areas.

As Professor Sax explains:

The- doctrine which'the court adopts
is not very important; rather the court's
attitudes and outlook are critical. The
"public trust"'ha,s.no life of its own and
no intrinsic content. It is no more and
no less-- than a name court's give to their
,concerns about the insufficiencies of the
democratic process." 68 Mich. L. Rev. at 521

7. I.C. 4-18-13-3 The Lake Michigan Fill Statute:

In 1907, the Indiana State.legislature adopted an act

authorizing the owners of land bordering upon the waters of

Lake Michigan in this state to fill in, reclaim and own the

submerged land covered by the shallow waters adjacent to and

between such land and the dock. or harbor line established

by the United States. The present statute is as follows:

"The owner or owners of land, or the owner
or owners of any easement for public park
purposes in, over or through any land border-
ihg upon the waters of Lake Michigan shall
have the right to fill in, re'claim and own
the submerged land adjacent.to and within
the -width -of :his- t@land-s-o -bordering upon such
lake and between the shore and the dock or
harbor line that is or may be established by
the United States, or the proper officials
thereof; and may build docks,-wharves and other
structures thereon for industrial, manufactur-
ing, trade, commercial and public purposes;

91.

and in aid of manufacturing, trade, commerce
and navigation; and to facilitate the landing,
storing and handling of articles used in manu-
facturing,trade and commerce; and may lay
out,'establish, use and maintain.public parks,
play gr-6unds, bathing beaches and other public
.groUhds thereupon,for.rec.reation and pleasure;
and when said land is so filled in such owner
shall own such land so filled in and approved;
and those holding an easement over land and
'filling, shall have the same right over said
land filled as they have over the ad3oining
land: provided, that the owner or owners of
any auch easement shall acquire only a like
easement over such filled in lands."
I.C. 4-18-13-1

The Act of 1907,. up until 1973, provided as follows

with respect to the method of completing the fill improve-

ment.

"Any'owner or owners of land abutt@ing-upon the shore
of aaid lake, wishing to avail himself or itself
of the provisions of this chapter,@shall cause an
accurate survey of plat to be made by the county
surveyor of,the county wherein said land lies
of the land between his land and said dock-or
harbor line, or so much thereof as such ' owner may
desire to fillin and improve, and upori-Ifiling
such survey and plat.of such land, duly certified
by said surveyor with the secretary of statel
the natural resources -commission with the-approval
of the governor of-the state shall issue to such
owner or owners*authority to fill in and improve
such lands; and, upon'the filling in and improve-
ment thereof, and the filing of good and suffi-
cient evidence that the same has been done, in
the office-of the secretary of state, and upon
paying the state treasUrer thesum of one hundred
... dollars ($100.00), per acre for the land so filled in,
such owneT or owners shall,receive from the state a
patent, signed by-the-governor, and attested
by-the selcretary of statel with the seal of
the state.'ther'eon,.vesting in such owner or
owners,'6r their'heirsr executors, administra-
tord,.sudcessors or assigns, the title to so
much as has been filled in and so improved."
I.C. 4-18-13-3.

In 1973, I.C. 4-18-13-3 was amended by substituting the

92.

word "may" for'the word "shall" with respect to the Natural
Resources'Commission issuing authority to fill in and

--improve 'the land.

Prior to 1973, many permits were issued under these

sectionst.-and most were issued to major steel manufacturing

companies. In the course of the past years, hundreds of acres

have been filled into Lake Michigan from the Illinois State line

to the e'astern limits of the City of Gary. We are informed

that there are several permits outstanding authorizing owners

to fill into Lake Michigan which have not been acted upon

by the holder. Following the-amendment of 1973 placing

discretion in the Natural Resources Commissionto issue such

a permit, we are informed that a Commission policy decision

of moratorium has bee n in 'force.

I.C.-4-18-13-1 makes no.provision for a determination

of the affect of the landfill operation upon the public

intereste.-The reclamation of the bed of Lake Michigan for-,

use may dimish the.publkc.rights of navigation, and

..fishery in-the area to be fi lled. Fill operations may have

an impact on shoreline erosion, the pattern of Lake Michigan

currents, and fish feeding and breeding, all of which are

problems which accu@_ely affect the Indiana coastline.

There appear to be no*Indiana decisions which have

considered, in any manner, I.C. 4-18-13-1, et seq. If one

concludes that the P-ublic Trust Doctrine, although dormant,

93.

is applicable to the navigable waters of the State of Indiana

including Lake Michigan,-.what affect d.oes this doctrine have

upon these landfill statutes.

In the statutes, there appears to be an absence of a

requirement to.inquire into the impact of the
posi

riparian's proposed fill in Lake Michigan upon the public

interest. It may be argued that the statute explicitly

-dalls for the "approval of the governor of the state", and

the approval by the Chief-Executive of the State may be

deemed tanamount to an implied determination by him that

the tran.sfer is in the public interest. If the public

interest must be considered and protected in any such

aut'ho'kity td.fill in Lake Michigan, does the Indiana citizen

-.and taxpayer have standilig toquestion the issuance of the

'It? If a public trust doctrine is a viable concept
perml

for.the State of Indiana, the Paepcke decision, supra, in

Illinois which gives standing to citizens and taxpayers

appears to loom as a persuasive precedent.

Two additional comments shoul d be made in this discussion

concerning disposition to riparians of the public trust

lands, which appears to be authorized under I.C. 4-18-13-1,

et seq. These permits were issued under a statute enacted

in 1907, in a time frame followir4'which was dominate'd-by

concerns for vigorous economic development. At that timel such

concerns may have been viewed as necessary and desirable

94.

in serving the "public inter"t Recent years have witnessed

our increased concern for the protection of our environment,

and concern for our ecosystem and ecological balance. If*

the factors considered by the Wisconsin courts for disposition

of public trust lands is adopted in our state, industrial,

manufacturing and commercial uses for proposed filled land

may not be readily acceptable.

secondly, we are informed that some permits to fill

in Lake Michigan may be outstanding and have not been acted

upon by the holder. Under the Illinois Central R.R. v-.

Illinois decision,.supra, the legislative body revoked its

prior authority granted to the railroad. Whether such unfulfilled

permits may now be recalled or revoked.will present interesting
1
questions of law if Such matt"' .ers reacii.the courts. Neverthe-

..less, such_fil.l..permits may.have otherwise lost their legal

viability by reason of the fast moving entry of federal

and state governments into' the control of@fill into navigable

lakes and streams under recent, water pollution control legis-

lation.

8. The Public Trust Doctrine A Final Thought:
We. disagree with other*com mentators who suggest that

the State of Indiana has rejected the Public Trust Doctrih
ne.

We believe that the State acquired these navigable waters

with a public trust-impressed upon such waters'. The most

striking fact is that apparently no case or controversy

95.

has arisen in our Indiana courts which would cause the

judiciary to face such a decision.

It is our opinion that the Public Trust Doctrine in

Indiana, like the genie of old, will soon be released from

its enclosure and spring forth to speak to the interest

of the public in these natural resources of the State.

96.

B. INDIANA LEGISLATION AND RELATED 14ATERIALS:

1. Policy Statements on Natural Resources:
The general welfare of the people of the State requires
that the surface water resources be put to beneficial uses to
the fullest extent, and that public and private funds shall
be invested to promote and expand beneficial uses of surface
waters for the best interests and welfare of the people of the
State. I.C..13-2-1-1, Acts 1955.

Water in any natural stream, lake or other body in the
State which may be applied to any beneficial and useful
purpose is hereby declared to be a natural resource, subject
to control and regulations by the General Assembly.
I.C. 13-2-1-2, Acts 1955. .

The public policy of this State, in the interest of the
economy, health and welfare of the State and its citizens,
is to conserve. and protect the ground water resources of the
State, and for that purpose provide reasonable regulations for
its most beneficial use and disposition. I.C. 13-2-2-2, Acts
1951.

The natural resources and the natural scenic beauty of
Indiana are declared to be a public right, and the public of
Indiana is hereby declared to have a vested right in the pre-
servation, protection and enjoyment of all the public fresh
water lakes, in their present state, and the use of such waters
for recreational purposes. I.C. 13-2-14-1, Acts 1947.
By definition under this statute, public fresh water lakes
do not include Lake Michigan or lakes within Lake County,
Indiana. I.C. 13-2-14-2, Acts 1947, amended by Acts 1961 and
Acts 1963.

This statute has been interpreted to apply to natural and
man-made channels connected to public fresh water lakes.
1961 OAG no. 22, p. 101. '

It is the public policy of this state that a natural,
scenic and recreational river system be established and main-
tained, and such area be designated, acquired and preserved
by the state for the common benefit of the present and future
generations. I.C. 13-2-26-2, Acts 1971.

9-7..

The General Assembly, recognizing the profound
impact of man's activity on the interrelations of all
components of the natural environment, declares that it is the
continuing policy of the State of Indiana, in cooperation
with other governmental units and other organizations,
to use all practical means to create and maintain conditions
under which man and nature can exist in productive harmony,
and fulfill the social, economic and other requirements of
present and future generations of Indiana citizens.
I.C. 13-1-10-2, Acts of 1972 amending I.C. 1971.

Environmental management is to provide for evolving
policies for.comprehensive environmental development and
control on a statewide basis to unify, coordinate and imple-
ment programs to provide for the most beneficial use of the
resources of the state and to preserve, protect and enhance
the quality of the environment so that, to the extent possible,
future generations will be ensured clean air, clean water,
and a healthful environment., I.C. 13-7-1-1, I.C. 1971 as
added by Acts of 1972.

2. Authority and Powers:

(a) Power to Declare Watercourse Navigable:

Under I.C. 13-2-4-1 the boards of commissioners in
the several counties are authorized to declare any stream
or watercourse in their respective counties navigable, on
the petition of 24 freeholders residing in the vicinity
of the stream intended to be so declared. A judicial
determination as to whether the stream was "navigable"
or "non-navigable" prior to the action of the county
commissioners is probably a necessity to determine if pro"
perty rights of riparians are taken or threatened to be
taken by the action of declaration of navigability.
See: De2ew v.. Board of Trustees of Wabash & Erie Canal
5 Ind. B (1854). The county commissioners have the power
to remove obstructions and to fund for the same purpose.
I.C. 13-2-4-3 and 8.

(b) Authority over State Owned Lands Bordering
on Lakes-and Streams:...

Lands owned by the State of Indiana which border or
lie adjacent to any lake or stream, and are not otherwise
used or occupied, should be under the management and control
of the Department of Natural Resources. The State reserves
the right to sell, transfer and convey the rights-of-way
through such lands for railroads, pipes, gas, water and sewer
lines, and certain other Dublic utilities. I.C. 14-3-10-1,
Acts 1927.

98.

1936 opinion of the Attorney General stated that the
statute repealed by implication all former acts authorizing
the sale of state mean@erlands by the Auditor of the State
of Indiana. 1936 O.A.G., p. 88.

Among the powers of the Department of Natural Resources
relating to land and waters of special interest to the Coastal
Zone Management Program are the care and control of several
preserves and parks owned by the state; the power to purchase
lands for parks or preserves and scenic places, subject to the
approval of the Governor; to investigate lakes and streams
and springs of the State for the purpose of protecting them
against impurities or pollution;.to have general charge and
supervision of the navigable waters of the State; the power
to issue permits to take coal, sand, gravel and other minerals
or substances from or under,the bed of any navigable waters.
I.C. 14-3-1-14.

Among the powers of the Department of Natural Resources
relating to engineering is the power to ascertain, designate
and define natural drainage and reclamation areas, and to
recommend and secure the enforcement of laws for the drainage
and reclamation of swamp, overflowed and nonarable lands of the
State. I.C. 14-3-1-15.

The Department of Natural Resources has limited powers
to control the use of ground waters of the State through the
designation of restricted use areas, where the withdrawal of
ground waters exceeds or threatens to exceed its natural
replenishment. I.C. 13-2-2-3, Acts of 1951.

The Department of Natural Resources is authorized
to conduct the investigation and measurement of the water
resources of the State. I.C. 13-2-8-1, Acts 1943.

The Department of Natural Resources is authorized
to acquire lands or interests in land for reservoirs for
storage of water and to fund the construction of necessary
structures for impounding such waters. I.C. 13-2-9-1,
et seq., Acts 1963.

(d) Authority of Department of Natural Resources -
Party to All Legal Actions:

The Department of Natural Resources is authorized and
empowered to become a party, either plaintiff or defendant,
to any cause of action now pending in any court of the state

99.

or which may hereafter be brought or commenced in any other
courts of the State affecting the preservation or maintenance
of the lakes, rivers and streams in the State of Indiana.
Meandered and unmeandered lakes and navigable and non-navigable
rivers and streams are included in the act. In the interests
of public health and convenience, the Department is declared
to be a party.in interest in all matters affecting lakes and
rivers. I.C. 13-2-12-1, et seq., Acts 1947.

(e) Authority of Department of Natural Resources -
Flood and Surface Waters:

The Natural Resources Commission may authorize the
diversion of flood waters of any watercourse for any useful
purpose, including storage. The Commission, if requested,
shall mediate disputes between users of surface water in any
watershed area. Any user of ground water or surface water
shall report to the Commission the volume used in any specific
period. I.C. 13-2-1-6.

(f) Department of.Natural Resources -
Power to Sell Water:

The Natural Resources Commission is authorized to con-
tract to provide certain minimum quantities of stream flow
or to sell water on a unit pricing basis for water supply pur-
poses from the storage in reservoir impoundments financed
by the State of Indiana. Such contract shall be subject to
the approval of the Attorney General and the Governor.
I.C. 13-2-1-7, Acts 1955 as added by Acts 1963; cf.
I.C. 19-3-20-1, et seq., Acts 1945.

(g) Department of Natural Resources - Authority
to Establish Average Normal Water Level:

The Department of Natural Resources is authorized to
establish, by legal action, the average normal water level
or area of All natural artificial lakes of the State, and to
construct or sponsor the construction of dams, spillways and
control works necessary to maintain the average normal
lake level. I.C. 13-2-13-1, Acts 1947, as amended by
Acts 1957.

(h) Public Highway Department - Drains and
Watercourses Affecting Highways:

The governing bodies or agencies of the State charged
with the duty of construction, maintenance and repair of
public highways shall have the power to change the course
of any stream, watercourse or drainage ditch, or to restore

100.

it to its original or former channel and may do such work as
is necessary to protect the banks or slopes to prevent wash
or erosion in the event the waters of any stream, watercourse
or ditch are causing or threatening injury, damage to or
destruction of any public highway or bridge. In the event
that any of the proposed work shall conflict or interfere
with the jurisdiction of a federal agency over a navigable
stream, the consent of the federal agency shall first be
obtained. I.C.-13-2-25-1, et seq., Acts 1945.

M Authority of Governmental Unit to Purchase
State Land Bordering on Lakes and Streams:

Any incorporated town, city township or county having
the power to own and maintain a public park orforest has
the power, with others, to purchase swamp, saline, and meander-
lands owned by State and bordering on lakes and streams for
public park and forest purposes. I.C. 4-18-2-1 et seq.,
Acts 1929.

(j) Department of Natural Resources - Authority
to Develop Comprehensive Plan:

The State of Indiana assented to a 1964 Act of Congress
establishing a land and water conservation fund to assist
the states in meeting present and future outdoor recreation
demands. 16 U.S.C. :94601-4 et seq.

The Department of Natural Resources is authorized to
prepare and maintain a comprehensive plan for the development
of the outdoor recreational resources of the State. It may
enter into and administer contracts and other agreements with
the United States or its agencies for the planning and acquisi-
tion of development projects involving participating federal
aid funds on behalf of any state, county, city or other govern-
mental unit. The Department must act in compliance with the
federal act and the rules and regulations set forth by the
United States Secretary of the Interior. I.C. 14-3-5-1,
Acts 1965.

(k) Department of Natural Resources - Control
Over Potable Water:

The Department of Natural Resources is authorized to
require owners of flowing waterwells to reduce the flow to
prevent the waste or loss of potable water which is not being
put to a beneficial use. The Department must first issue a
permit before potable ground water may be injected or pumped
into underground formations which contain non-potable water.
A penalty is provided for the violation of this act.
I.C. 13-2-3-1, et seq., Acts 1957.

101.

(1) Department of Natural Resources - Fishing
Areas in Indiana Port:

The Department of Natural Resources shall have the power
to establish and maintain within all ports of the Indiana
Port Commission in operation on July 1, 1975, areas for the
use of the citizens of the State for public fishing from
shore, together with the right, subsequently, to limit or
halt public fishing in the area if the site is leased to others.
I.C. 8-10-1-7.5, I.C. 1971, as addeld by Acts 1975.

(m) Department of Natural Resources
Ylood Plain Commission Power

It is declared unlawful to erect, use or maintain in
or on any flood plain, a permanent abode or place of residence;
or to place any structure or obstruction or cause any excavation
which will adversely affect the efficiency or restrict the
capacity of the floodway so as to constitute an unreasonable
hazard to the safety of life or property or result in unreason-
ably detrimental affects upon fish, wildlife and botanical
resources, all of which constitutes public nuisances. The
Flood Plain Commission, a division of the Department of
Natural Resources, has the power to begin and prosecute any
action to enjoin or abate such a nuisance. The Commission
shall have the power to remove or eliminate any structure,
obstruction, deposit or excavation in the floodway which is
in violation, and the power of eminent domain may be used to
accomplish the purposes of the act. I.C. 13-2-22-13, Acts
1945, amended by Acts 1961, 1973 and 1976.

(n) Department of Natural Resources -
Channels in Streams and Rivers:

The General Assembly finding that the unregulated con-
struction of channels may be injurious to the public health,
safety and welfare, and that construction of channels should
be regulated, no person shall construct a channel before
receiving the written approval of the Natural Resources
Commission prior to any construction. A channel means,
under the Act, either an artificial channel or the improved
channel of a natural watercourse connecting to any river or
stream in the State for the purpose of providing access by
boat or otherwise to public or private industrial, commercial,
housing, recreational or other facilities. Before granting
approval, the applicant shall receive approval of the State
Board of Health or the Stream Pollution Control Board, and
in the case of a channel connecting to a navigable river or
stream, shall dedicate any and all waters so created within
the connection to the general public use. I.C. 13-2-18.5-1,
et seq.; I.C. 1971 as added by Acts 1971.

102.

(o) Authority for Water Resources Research:

The Water Resources Research Act of 1965 was created
to authorize'the Indiana Environmental Mangement Board, the
Department of Natural Resources and the Bureau of Water and
Mineral Resources to conduct applied research in their
respective areas for the purpose of securing the scientific
and technical data and information necessary for the solution
of problems involving the wise beneficial development, use
and management of the water resources of Indiana. These
agencies are to report to the Water Resources Study Committee
and may conduct their research indepently or with other
agencies of 'the State or with federal agencies. I.C. 15-2-7-1
et seq., Acts 1965.

(p) Power of City and Towns Over Watercourses and
their Banks:

Every city and town,,except when otherwise provided by
law, shall have exclusive power over watercourses, drains,
bridges and public.grounds within the city or town, and may
prescribe the height, width and manner of construction of all
bridges. Every city or town may also drain or fill up ponds
or low grounds, straighten and deepen streams, and establish
the lines and limits of the banks thereof, and may provide for
the improvement of the banks, and establish the lines and
limits of the shores of lakes, and provide for the drainage and
filling up thereof. I.C. 18-5-10-4, Acts of 1969. This
power should be understood in terms of the paramount power
of the federal government to control these same matters for
navigation and commerce purposes as well as the power of the
State to do likewise.

3. Regulatory Legislation:

a) Prohibition on Unlawful Disposal of Refuse:

It shall be unlawful for any person to put, throw,
dump or leave refuse on any public highway within any state
park or recreation area, or immediately adjacent to any lake
or stream, except in proper containers provided for sanitary
storage of such refuse, or except as part of a landfill
operation otherwise permitted by law to reclaim submerged
land in Lake Michigan or other waters, or except as a part
of a waste discharge approved or covered by a pollution I
abatement program approved by the State. Refuse is defined
as well as person, and the latter includes units of government.
The throwing, discarding, dumping or other disposition of
refuse from any moving vehicle, or boat, other than a public
conveyance, or from any such vehicle or boat while temporarily
stationary, in violation of this act shall be prima facia
evidence of a violation by the operator of the conveyance.

103..

I.C. 13-3-11-1 et seq., Acts 1969, I.C. 1971 as added by
Acts 1971.

(b) Prohibition Against Corporation Obstructing
Navigable Stream:

A corporation may be prosecuted for erecting, continuing
or maintaining a public nuisance or for obstructing a public
highway or navigable stream. I.C. 35-1-48-1, Acts 1905,
as amended by Acts 1974.

This statute is repealed effective July 1, 1977,
but its import is replaced through I.C. 35-41-1-2 which
hereafter defines the word person to include a corporation.

Any person obstructing any stream or watercourse
declared navigable by county commissioners shall be liable
to the same pains and penalties as persons guilty of obstruct-
ing public highways. I.C. 15-2-4-4, Acts 1905.

(d) Prohibition of Construction of Channel
Without Authorization:

Any person,who violates the provisions of I.C. 13-2-18.5-1
providing for application to and approval by Natural Resources
@ommission before constructing any artificial channel or
improving any channel of a natural watercourse shall upon
conviction be guilty of a misdemeanor, be subject to sub-
stantial fine and each day of continuing violations after
conviction shall be considered a separate offense.

(e) Prohibition Against,Certain Ditches and Drains:

It is unlawful for any person to locate,.dig or dredge
or establish or construct any ditch or drain cutting into
or through, or upon the line of any fresh water lake in the
State or to locate, dig, dredge or in any way construct any
ditch or drain having a bottom depth lower than the level
of the lake as established by law within 160 rods of any
point on the line of such lake unless a dam shall have been
provided for and constructed so as to adequately protect
the water level.

It shall be unlawful for any person to cut into or
around or interfere with or change or destroy any dam, bank
or levy already constructed or which may hereafter be con-
structed for the purpos6 of maintaining the level of the
waters of such lake at their established level or to do

104.,

the same with respect to the banks or shores of any such lake
or any part thereof in such a way as to lower or tend to
lower the waters thereof.

It shall be unlawful for any person to interfere with,
change, or alter any bank, dam, spillway or outlet of any
fresh water lake in the State, or to dig or dredge or in
any way lower any outlet to any such lake at any point within
240 rods of such lake.

The violation of any of the foregoing provisions shall
be deemed a misdemeanor, and upon conviction a fine or imprison-
ment, or both. I.C. 13-2-17-1 et seq., Acts 1905.

(f) Crimes Against Property - General:

The crime of trespass, for entry after permission
is refused or neglect or refusal to depart, and the crime
of malicious trespass for th'e malicious or mischeivious
injury of property of another or any public property are
subject to fine or imprisonment or both. I.C. 35-1-64-1,
Acts 1905 as amended; I.C. 35-1-66-1, Acts 1905 as amended.

Any person who wrongfully obstructs any public highway,
canal, bridge, embankment or lock, or injures any material
used in the construction thereof, shall, on conviction, be
fined or jailed, or both.

Both the trespass and malicious trespass sections are
repealed effective July 1, 1977, at which time the same acts
shall constitute violations of I.C. 35-43-2-2 under the
revised penal code.

Every person who sh all erect or continue or main-
tain any public nuisance, to the injury of any part of the
citizens of the State shall, on conviction, be fined.
I.C. 35-1-102-1, Acts 1905. Whoever without authority of
law builds, erects or keeps up any dam or other obstruction
to any stream of water, and thereby produces stagnent water
which is injurious to the public health or safety, shall,
on conviction, be fined. I.C. 35-1-102-3, Acts of 1905.
In :addition, civil remedies for abatement of nuisances are
provided. I.C. 34-1-52-1 et seq.

105.

VII

SPECIFIC AREAS OF PUBLIC CONCERN

A. FLOOD CONTROL AND PREVENTION:

1. Fe deral Flood Control Act:

Over the past 50 years, the.Congress has enacted

legislation. to control and prevent flooding, and to alleviate

the loss and devastation resulting from it. It has attacked

the problems directly by authorizing the construction of

flood projects and flood plain projects. More recently,

it has attacked the problem indirectly by making available

insurance and loan guarantees to individual property owners

only if local governments have adopted federally recommended

land use and control measures which are intended to limit the

risk of flood damage.

In the general flood control act of the Congress,

33 U.S.C. 701 - 701u, the Congress has declared its recogni-

tion that destructive floods upon the rivers of the United

States upset orderly process and cause loss of life and pro-

.perty, erosion of lands and impairment of navigation, highways

and other channels of commerce, and therefore constitute a

menace to national welfare. The Congress stated that flood

control on navigable waters or their tributaries is a proper

activity of the federal government in cooperation with states,

their political subdivisions and localities; that the federal

106.

government should improve or participate in the improvement

of navigable waters or their tributaries, including the water-

sheds thereof, for flood control purposes where the benefits

to whomever they may accrue are in excess of the estimated

costs, and if lives and the security of the people are other-

wise adversely affected. 33 U.S.C.P01a.

The words "flood control" are intended to include

channel and major drainage improvements. The federal investi-

gations and improvements of rivers and other waterways for

flood control and allied purposes was placed under the direc-

tion of the Secretary of the Army and the supervision of the

Chief of the Corps of Engineers. Federal investigations of

watersheds and measures for run-off, waterflow retardation

and soil erosion prevention on watersheds was placed under

the direction of the Secretary of Agriculture.

The Secretary of the Army, on behalf of the United States,

was authorized to acquire title to land, easements and rights-

of-way necessary for any dam,.reservoir project or channel

improvement project.

The Act authorized an emergency fund for flood emergency

preparation, in flood fighting and rescue operations, or in

the repair and restoration of any flood control work

threatened or destroyed by flood.

The state and local political subdivisions had important

and necessary roles to play. No money was to be expended for

107.

projects until the state, political subdivision, and other

resposible local agencies have given assurances satisfactory

to the Secretary of the Army that:

(a) They will provide, without cost to the United
States, all lands, easements and rights-
of-way for the construction of the project
(with some exceptions);

(b) They will save and hold the United States
free from damages on account of the con-
struction of the project; and

(c) They will maintain and operate all the
completed projects in accordance with reg-
ulations prescribed by the Secretary of
the Army.

The Act further provided for partial reimbursement

to the state and local bodies for certain excess costs in

acquiring the land rights. Alternatively, the Act allows

a state or local bodies, at their election, to pay the Secretary

his estimate of the costs chargeable,to the state to acquire

the land rights, and the Secretary will then acquire them.

These costs and obligations of a state will not apply in those

cases in which the Secretary estimates that 75% or more of the

benefits of the project will accrue to lands and-property

outside the state in which the project is located.

'The Act authorized several forms of non-struc tural flood

control. In the design of plans by any federal agency for pro-

jects involving flood protection, consideration was to be given

to non-structural alternatives to prevent or reduce flood

damages including, non-exclusively:

108.

(a) Flood proofing of structures;

(b) Flood plain regulations;

M Relocation.

With a view toward formulating the most economically,

socially, and environmentally acceptable means of reducing

or-preventing flood damages.

The Act thus gives legislative approval to a "cost -

benefit" application to flood control projects. If the

costs levees or flood walls can be substantially reduced by

the evacuation of a portion or all of the-area proposed to

be protected, the Chief of the Corps of Engineers may modify

the plan to eliminate that portion of the project:

"Provided, that a sum not substantially exceed-
ing the amount thus saved in construction
cost may be expended . . . toward the evacua-
tion of the locality eliminated from protection
and the rehabilitation of the persons so evacuated:"
33 U.S.C. 9701i

The Act prescribes that where a non-structural alterna-

tive is recommended, non-federal participation shall be com-

parable to the value of lands, easements and rights-of-way

which would have been required of the non-federal interest for

structural protection measures.

2. National Flood Insurance Program:

In 1968, the Congress created a national flood insurance

program. 42 U.S.C.S4001 - 4127.

109.

The Congress found that flood disasters have created

personal hardships and economic distress, and have placed an

increasing burden on the nation's resources. it further

found that preventive and prote ctive works to reduce loss

were not sufficient to protect against the growing exposure

to future flood losses, and that it was uneconomic for the

private insurance industry alone to make flood insurance

available. Therefore, the Congress declared its purpose

M to authorize a flood insurance program by means of which

flood insurance can be madelavailable on a nationwide

basis through the cooperative efforts of the federal

government and the private insurance industry, and (ii)

to encourage state and local government to make appropriate

land use adjustments to constrict the development of land

which is exposed to flood damage and to minimize damage caused

by flood losses.

The Secretary of Housing and Urban Development was

authorized to establish and carry out the program which

would enable interested persons to purchase insurance

against loss resulting from physical damage to or loss of

real property or personal property arising from any flood

occurring in the United States. The Secretary was to give

priority in the available insurance to residential properties,

church properties and small business concerns.

The Flood Disaster Protection Act of 1973 made

significant amendments. to the program. 42 U.S.C. �4001g,

110.

�4002 and others. The Congress found that annual losses

throughout the nation from floods and mud slides were

increasing, largely as a result of.the accelerating develop-

ment of, and concentration of population in, areas of

flood and mudslide hazards. The 1973 Act had as its purposes,

(1) to substantially increase the limits of the coverage

authorized under the National Flood Insurance Program,

(2)-to*provide for the dissemination of information concerning

flood prone areas, (3) to requ ire states and local communities,

as a condition of future federal financial assistance, to

participate in the program and to adopt adequate flood plain

ordinances with effective enforcement provisions to reduce

or avoid future flood losses, and (4) to require the purchase

of flood insurance by property owners who are being assisted

by federal programs or federally regulated or insured agencies

or institutions in the acquisition or improvement of their

land or facilities.

Since development of these flood prone areas was made

possible by th e availability of mortgage loans through federally

insured savings and loans, banks and other financial institu-

tions, the Congress devised a plan, on a graduated basis,

whereby no insured financial institution could grant, on

or after July 1, 1975, a loan secured by improved real estate

or a mobile home located or to be located in an area that

had been identified by the.Secretary of HUD as an area having

special flood hazards, unless the community in which such

area is located war participating in the Nat ional Flood Insurance

Program.

In order for the local community to participate in

the program, it had to adopt land use and control measures

consistent with criteria prescribed by the Secretary of HUD

to reduce oravoid flood damage in connection with future

construction within the areas of the flood plain. The

program did not require any flood proofing or other structural

alterations of buildings retroactively, but it did require

certain measures to be take n with respect to new construc-

tion. The technique used by the Congress in compelling local

communities to stop development within flood plain areas

has been effective. The Congress provided that its insured

financial institutions shall require national flood insurance

in connection with the financing or the acquisition of a

building in a designated flood plain area. The Congress then

provides that national flood insurance will not be available

unless the state and local communities enact ordinances and

other legislation restrictinq development or uncontrolled

development within a flood plain area. The result is that

states and local communities are compelled to enact the

restricted land use and flood control measures deemed

necessary by the Congress to reduce tragic and catastrophic

loss to property from future flood, mud slide and shoreline

erosion damage.

112.

3. Water Resources Planning Act:

The Secretary of the Army, acting through the Chief of

Engineers, was authorized to construct, operate and maintain

any water resource development project, including single

and multiple purpose projects involving but not limited

to, flood control, navigation and shore protection. Any

appropriation must first be approved the Senate and House

committees on Public Works.

Under the National Stream, Bank, Erosion Prevention

and Control Act of 1974, the Secretary of the Army, acting

through the Chief of Engineers, was authorized and directed

to conduct a national stream bank erosion prevention and

control demonstration program to evaluate the extent of

stream bank erosion, to develop new methods and techniques

for bank protection, to conduct reserach on soil stability

and identification of causes o f erosion, and to make a report

to the Congress on the results of the studies. 42 U.S.C.A.

91962-5 (note) .

The Act provides that the Secretary of the Army,

acting through the Chief of Engineers, when he determines it

to be in the public interests, may enter-into agreements

providing for reimbursement to the states or political

subdivi sions thereof for work to be performed on water

resources development projects authorized for construction

by the Secretary.

4. State Legislation Concerning Flood Control:

Various Acts of the General Assembly of the State of

113.

Indiana have been adopted to further flood control and pre-

vention within the state.

In 1969, concerned about the unregulated flow of

rivers and waters of the State which result in periods of

destructive floods, the State Legislature created the

Reservoir Coordinating Committee of Indiana, within the

Department of Natural Resources, for the purpose of establish-

ing adequate coordination of efforts of various state and

federal agencies in the planning and developm ent of the

state system of reservoirs. I.C. 13-2-10-1, et seq., Acts

1969.

The Committee has the duty of coordinating the planning

and development of reservoirs in the state for the purpose

of flood control, water supply, water quality control,

recreation and related water resources purposes. The Committee

has the.obligation to cooperate with the United States or

any agency thereof, or any political subdivision of the

State.

Under I.C. 13-2-11-1, et seq., Acts 1947, the

State of Indiana vested itself with full power and control

over all of the public fresh water lakes in the State,

excepting therefrom Lake Michigan and any lake within Lake

County, Indiana. The Act made it unlawful for any person

to extend the shoreline either by excavating or by fil ling,

without prior approval of the Department of Natural Resources.

The Act gave to the Department of Natural Resources authority

114.

and power to enforce the provisions thereof by court action.

Under I.C. 13-2-18.5-5, I.C. 1971 as added by Acts of 1971,

no person may construct a channel connecting to any river

or stream without first receiving the written approval of

the Department of Natural Resources.

The Conservancy District Act of 1957 authorized

the establishment of conservancy districts for several

purposes including providing water supplies, flood prevention

and control, prevention of loss of topsoil from injurious

water erosion, and storage of water for augmentation of

stream flow. Freeholders who desired to establish a district

initiate proceedings by filing a petition. Following such

a filing in a court of competent,jurisdiction, various

statutory pre-requisites and requirements have to be complied

with in order to ultinately conclude with the establishment

of the district.

The powers of the conservancy district included the

construction or maintenance of levees within the district.

The governing board was required to establish a district

Plan and to establish revenues including receipts.from

assessments for benefits, for maintenance and operation,

and receipts from the sale of services or property or from

the federal or state government. The district has the power

of eminent domain. I.C. 19-3-2-1 through 106, Acts 1957,

as amended.

Any levee district or levee association which existed

115.

prior to the Conservancy District Act of 1957 and any levee

district established thereafter, had the right to accept and

enjoy all the benefits of the Conservancy District Act

upon taking certain statutory steps to accomplish the same.

I.C. 19-3-2-91.

An Act of 1961 by the Indiana Legislature first placed

a statutory.obligation upon the owner of any dam, levee,

dike or floodwall to maintain and keep the structures in

a state of repair or operating condition required by the

exercise of prudence, due regard for life or property, and

the application of sound and accepted engineering principles.

I.C. 13-2-20-2, Acts 1961.

The Natural Resources Commission, on behalf of the

State of Indiana, was given jurisdiction and supervision

over the maintenance and repair of dams, levees, dikes and

floodwalls along the rivers, streams and lakes of the State,

and were required to exercise care to see that such structures

are maintained in good and sufficient state of repair or

operating condition. The Natural Resources Commission was

authorized and directed to make engineering inspections not

less than once each calendar year, and if the Commission

finds any structure not sufficiently strong, or not maintained

in good and sufficient state of repair or operating condition,

or unsafe and dangerous to life or property, shall issue

an order directing the owner to take remedial action. -if

116.

a condition was so dangerous that emergency measures were

required, the Act gave such authority to the Commission to

provide the emergency protection, and to recover the cost

from the owner by appropriate legal action. Notwithstanding

the direction by the Act to the National Resources Commission

to make inspections and to cause owners to comply, the Act

exculpated the Commission from any liability for damages

caused by or arising out of the construction, maintenance,

operation or failure of any dam, levee, dike or floodwall

or by the issuance and enforcement of any order.

5. Indiana Flood Control Act of 1945, as Amended:

The Flood Control Act was adopted in Indiana in 1945

upon a declaration by the Legislature that the loss of lives

and property caused by floods, and the damage resulting

therefrom was of deep concern to the State,'affecting the

life, health and convenience of the people in the protection

of property. The Act was designed to prevent and limit

floods and to regulate the alteration of rivers and streams

in accordance with sound and accepted engineering practices

so as to control and minimize the extent of floods.

I.C. 13-2-22-1 et seq., Acts 1945.

The Natural Resources Commission was given jurisdiction

over the public and private waters in the state and lands

adjacent thereto necessary for flood control purposes and
for the prevention of flood damage. The Commission was charged
with the responsibility of preparing a comprehensive study

117@

and investigation in the areas affected by floods and to

determine the best method and manner of establishing flood

control giving consideration to the reservoir method, the

channel improvement method, the levee method, the flood plain

regulation method and any other practical method. The Commission

was authorized to perform its duties in cooperation with

any person or agency of the State, with other states, or

with the United Stateg or any agency thereof. The Natural

Resources Commission was given the power of eminent domain

to carry out its purposes. The Commission was given the

power to establish a floodway to give prior approval to

all flood control.works and to report to the Governor from

time to time.

Under a Flood Plain Management Act, the Natural

Resources Commission was authorized and directed to develop

and promulgate rules and regulations for the deliniation

and regulation of all flood hazard areas within the State.

The Commission was authorized to provide technical data and

information to local units of government and to.cooperate

with all other governmental units. The Act provided that

a local unit shall not issue a permit for any structure,

obstruction, deposit or excavation within any flood hazard

area or portion thereof which lies within a floodway without

the prior written approval of the Commission. I.C. 13-2-22.5-2,

I.C. 1971 as added by Acts of 1973.

In 1959, the Legislature provided a flood control

118.

revolving fund from which the Natural Resources Commission

was authorized to make loans to any municipality for the

purpose of instituting, accomplishing and administering any

approved flood control program. The Act provided for

priorities in making the loan, for conditions to be met

before the loan was granted, and for the method by which

the loan would be repaid to the State.

Other acts of the State Legislature dealt somewhat with

the problem-of flood control. The Soil and Water Conservation
District Act of 1965, I.C. 13-3-1-1 et seq., Acts 1965,

declared it to be the policy of the General Assembly to

provide for the conservation of the soil and water resources

of the State, for the control and prevention of soil erosion,

for the prevention of floodwater and sediment damage,

for other matters of conservation to control floods,

prevent impairment of dams and reservoirs, and to assist in

maintaining the navigability of rivers and harbors. A State

Soil and Wate r Conservation Committee was established to

serve as an agency of the State and to perform the functions

of the Act. The method for establishing a soil and water

conservation district was set forth, together with its powers

and duties. The Department of Natural Resources was authorized

and directed to expand the small watershed planning program

carried.on with the United States Department of Agriculture.

I.C. 13-4-3-9, Acts 1969. I.C. 19-4-17-1 et seq., Acts

119.

1915 provid e for levee improvements in the cities of the second

through the fift h classes, and towns. I.C. 19-4-18-1 et seq.

Acts 1939, as amended, provides for certain flood control

districts in cities of the second through the fifth classes

and, in I.C. 19-4-19-1 et seq., Acts 1953, provided for emergency

bonding authority to match federal funding in flood control

districts. In 1965, I.C. 19-4-20-1 was enacted to permit

any city of the second through the fifth class, and a town,

to order the construction or change of the levee, the change

or improvement of a water course, or the drainage of a section

of ground, or the construction of a sewer or drain necessary

for the public welfare, and to provide for the assessment

of benefits on those properties improved by the completion

of the work.

B. EROSION CONTROL:

The control and provisions for flooding have a direct

effect upon the control of erosion. The powers and duties

of the federal Departments of the Army, the Interior and

Agriculture, and the State of Indiana agencies, including

the Department of Natural Resources, outlined in the foregoing

material apply to a greater or lesser extent to this section

on erosion control.

There are some specific federal and state laws relating

to control of erosion.

1. Federal Legislation Concerning Erosion Control:

The Secretary of Agriculture is authorized and directed

120.

to develop a program of land conservation and land utilization

in order to correct maladjustments of land use, and thus

assist in controlling soil erosion as well as mitigating

floods protecting the watersheds in navigable streams and

other purposes involving the health, safety and welfare of

people. 7 U.S.C. gl.010. The Secretary is also directed to

car ry outa land inventory and monitoring program to include

studies and surveys of erosion and sediment damages.

7 U.S.C. �1.010a.

The Secretary of Agriculture is granted numerous
powers to effectuate'the programs provided for iii �.1010 of

the Act. 7 U.S.C. �1011.

33 U.S.C. 426 et seq., authorized and directed the

Chief of Engineers, under the Secretary of the Army, to

make investigations and studies in cooperation with other

agencies of affected states with a view toward devising effect-

ive means of preventing erosion of the shores of coastal

and lake waters by waves and currents. This Act establishes,

under the Chief of Engineers, a Coastal Engineering Research

Center conducted by a Board on Coastal Engineering Reseanch

who have been selected with regard to their special fitness

in the field of beach erosion and shore protection.

33 U.S.C. �426-1, 72.

It is the declared purpose of the Act to prevent damage

to the shores of the United States and to assist in the con-

struction, but not the maintenance, of works for the restoration

121.

of and protection against erosion by waves and currents. It

further provides that the federal contribution in any project

shall not exceed one-half of the cost of the project. The

remainder shall be paid by the state or other political sub-

division in which the project is located. Costs allocated

to the restoration and protection of federal property shall be

borne fully by the federal'government. Under certain criteria,

the federal participation in the cost of the project for

restoration and protection of state, county or other publicly

owned shores parks and conservation areas may be up to 70% of
the total cost. 33 u.S.c.'s426e.

By definition in the Act, when in the opinion of the

Chief of Engineers, the most suitable and economical

remedial measures would be provided by periodic beach

nourishment, the term "construction" may be construed, for

the purposes of the Act, to include the deposit of sandfill

at suitable intervals of time to furnish sand supply to pro-

tect shores for a length of time specified by the Chief

of Engineers. Federal contribution to any project requires

the prior approval by Congress as well as the approval of

the Chief of Engineers and the Coastal Engineering Research

Board.

In certain instances, the Secretary of the Army is

authorized to reimburse local interests for work done by them.

In addition, the Secretary of the Army is authorized to under-

take construction of small shore and beach restoration and

122.

protection projects not specifically authorized by Congress

where he finds such work is advisable and where such work

does not exceed a certain cost for each fiscal year.
The Secretary of the Army, through the'Chief of

Engineers, is authorized to investigate, study and construct

projects for the prevention or mitigation of shore damages

attributable to federal navigation works. The cost of

installing, operating and maintaining such proj4@cts shall be

borne entirely by the United States. Such a project may

be authorized for the area near Michigan City, Indiana, where

shore damage has been attributed to federal harbor structures.

Under the Water Resources Planning Act, 42 U.S C. 51962

et seq., the Secretary of the Army, acting through the Chief

of Engineers, is authorized to construct, operate and maintain

any water resource development project including purposes

involving navigation, flood control and shore protection.

Approval is required by resolution of senate and house

committees on public works, and there are dollar limitations.

Under the Act, the Secretary of the Army may reimburse the

states for certain installation costs, with certain dollar

limitations. 42 U.S.C. �1962 a - d.

In March, 1974, the Stream Bank Erosion Control

Evaluation and Demonstration Act of 1974 was created by the

Congress. The Secretary of the Army, acting through the Chief

of Engineers, was authorized and directed to establish and

conduct a five year program to evaluate stream bank erosion

123.

on navigable rivers, develop new methods for bank protection,

report to the Congress on the results and undertake certain

demonstration projects. See: 43 U.S.C.A. 91962d-5 (Note).

At the same time the National Shoreline Erosion Control

Development and Demonstration Program of 1974 was created.

Upon a finding by the Congress of the importance and interest

in the coastal zones of the United States on the one hand and

the deterioration pf the shorelines and the tremendous losses

therefrom, the program sought to develop and demonstrate

economical means to combat shoreline erosion. Demonstra-

tion projects were to be undertaken at various sites, with

not less than two sites on the shorelines of the Great Lakes.

A shoreline erosion advisory panel was authorized having

various powers. Annual reports were required to be submitted

to committees of the Congress, and the final report including

a comprehensive evaluation of the National Shoreline Erosion

and Control Development and Demonstration Program was to be

submitted at the end of the five year period.

2. 'State Legislation:

The Soil and Water Conservation Districts Act of

1965 declared the policy of the legislature that land and

water resources of the State must be preserved through

the control of soil erosion and flood prevention. I.C. 13-3-1-1,

Acts 1965. The Act established a State Soil and Water

Conservation Committee, and local conservation districts,

with membership, duties and powers as outlined in the Act.

124.

The general explanation of this Act has been discussed under

flood control and prevention, above.

Under I.C. 19-4-14-1, Acts 1931, amended by Acts

1965, the board of public works and safety of any city or

the board of trustees of any-to'wn situated upon or adjoining

Lake Michigan, who desire to prevent the washing away of the

beach, bank, shore or land abutting it, may construct proper

jetties and seawalls, cause the shoreline to be graded, or

make improvements in the harbors and watercourses situated

upon or adjoining a navigable stream or lake, channel, slip

or watercourse.

Under I.C. 19-4-15-1, Acts 1965, the board of

public works and safety of any city and the board of trustees

of any town was given the power to appropriate or condemn

.property or rights-of-way to make such improvements of harbors

and watercourses as authorized by I.C. 19-4-14-1, above.

The materials set forth in the section of flood control

and prevention include authority and direction to act for

control.of erosion as well, and the materials above would

apply equally to this section.

C. HARBOR AND WATER RELATED CONSTRUCTION:

1. Federal Legislation:

Federal investigations and improvements of rivers,

harbors and other waterways shall be under the jurisdiction

of and prosecuted by the Department of the Army under the

125.

its Secretary and the supervision of the Chief

of Engineers. 33 U.S.C. �540. A Board of Engineers for Rivers

and Harbors was established by the Act within the Corps of

Eigineers. The Board shall submit to the Chief of Engineers

recommendations as to the desirability of commencing or con-

tinuing any river and harbor improvement. In reaching its

recommendation, the Board shall consider the amount and

character of commerce which will be benefitted by the improve-

ment and the relation of the ultimate costs of such work,

both construction and maintenance, to the public commercial

interests involved. In addition, it should consider the

public necessity for the work and the propriety of its con-

struction continuance or maintenance at the expense of the

United States.

Among his various reports to the Congress, the Chief

of Engineers shall indicate the character of the terminal

and transfer facilities existing on every harbor or waterway

under maintenance or improvement by the United States, and

state whether they are considered adequate for existing

commerce. 33 U.S.C. �550. It has been the declared

policy of a Congress that water terminals are essential

at all cities and towns located upon harbors or navigable

waterways and that at.least one public terminal should

exist and be regulated by the municipality or other public

agency of the state and open to all.
33 U'.S.C. �401 through 465 deal generally with the

126.

protection of navigable waters and of harbor and river

improvements. 33 U.S.C. 9401 provides generally that it shall

be unlawful to construct or begin the construction of any

bridge, dam, dike or causeway over or in any port, haven,

harbor, canal, navigable river or other navigable water of

the United States until the consent of Congress to the build-

ing thereof has been obtained and further until the plans

have been submitted to and approved by the Chief of Engineers

and by the Secretary of the Army. 5401 also provides that

any such structures may be built under authority of the

legislature of the state across rivers and other waterways,

the navigable portions of which lie wholly within the limits

of a single state provided the location and plans thereof

are submitted to and approved by the Chief of Engineers

and by the Secretary of Army before construction is begun.

In this and other connections relating to bridges and

causeways, all functions, powers and duties of the Secretary

of the Army and officers of the Department were transferred

to and vested in the Secretary of Transportation in 1966

to the extent that they relate generally to the location

and clearances of bridges and causeways in navigable waters
of the United States. 49 U.S.C.�1655(g)(6).

33 U.S.C. �403 prohibits the creation of any obstruc-

tion to a navigable capacity of any of the waters of the

United States which has not been authorized by Congress.

Likewise, �403 prohibits the building of any wharf, pier,

127.

breakwater, bulkhead, jetty or other structures in any port,

harbor, canal or other water of the United States, outside

established harbor lines, or where harbor lines have been

established, except on plan recomme nded by the Chief of

Engineers and authorized by the Secretary of the Army.

Sections 407, 408 and 409 generally prohibit depositing of

materials in navigable waters and placing other obstructions

therein.

The Bridge Act of 1906 directed that no bridge should

be constructed or maintained across or over any navigable
waters of the United States' until the plans and specifications

for its construction, and drawings for its proposed location

were submitted to the Secretary of the Army and Chief of

Engineers for their approval. 33 U.S.C. �491, et seq. Since

1966, matters relating generally to the location and clear-

ance of bridges and causeways have been transferred and

vested in the Secretary of Transportation and now require

.his approval in addition to all other approvals.

No bridge erected or maintained under the Bridge Act

of 1906 shall unreasonably obstruct the free navigation of

the waters over which it is constructed. If any bridge

so erected, shall, in the opinion of the Secretary of Trans-

portation, at any time unreasonably obstruct navigation,

the Secretary, after giving interested parties notice and

opportunity to be heard, shall notify the persons owning the

bridge to alter it so as to render navigation through, under

128.

it reasonably free, easy and unobstructed. 33 U.S.C. �494.

Any person who fails to comply with the orders of the Secretary

of the Army, or of Transportion, or the Chief of Engineers,

shall be deemed guilty of a misdemeanor and upon conviction

be subject to a fine. 33 U.S.C. 9495.

The Bridge Act of 1940 generally related to the altera-

tion of bridges. 33 U.S.C. �511 - 523. This Act

provides that no bridge shall at any time unreasonably

obstruct the free navigation of any navigable waters of the

United States. It provides for notice, hearings and findings
concerning whether an alter'ation of a bridge is required and

if so, what alterations are needed. Section 522 of the Act,

in recognition that this Act is substantially the same as

the Bridge Act of 1906, and particularly �494 thereof,

provides that �494 shall not be applicable with respect to

any bridge to which the provisions of �511 to 523, are applica-

ble, except as otherwise provided in the section.

Beginning with 33 U.S.C. 5577, and following, the Congress

has provided for small river and harbor improvement projects

which will result in substantial benefits to navigation

and which can be operated consistently with appropriate and

economic use of the waters of the nation for other purposes,

provided that in the opinion of the Chief of Engineers

such work is advisable and benefits are in excess of cost.

Each project provided for shall be complete in itself and

not commit the United States to any additional improvement

129.

to insure its successful operation. Non-federal interests

are required to share in the costs of the project to the

extent that the Chief of the Engineers deems it appropriate

to the local nature and its benefits. As in several other

acts, the non-federal local interests must provide all

necessary land easements and rights-of-way without cost

to the United States, and agree to hold the United States

free from damages that may result from the construction

and maintenance of the project. Also in connection with

this Act, the Corps of Engineers shall submit annually a

list of those projects for improvement of rivers and harbors

and other waterworks for navigation, beach erosion, flood

control and other purposes which have been authorized for

a period of at least eight years without any Congressional

appropriations within the last eight years and which he deter-

mines after review should no longer be authorized. Each

project so listed shall be-accompanied by a recommendation

and the reasons for that recommendation. Prior to such

submission, the Corps of Engineers shall seek views of

interested federal departments, agencies and instrumentalities

and the Governor of the state in which the project would be

located and the views of these parties shall accompany the

lists submitted to Congress. Local Congressmen should

be sent this list and the accompanying views and recommendations.

This concept.of project review is apparently designed to lead

to the deauthorization of those projects not deemed of

130.

sufficiently high priority to continue as viable projects.

33 U.S.C. �579.

2. State Legislation and Related Materials:

Cities and towns of the State of Indiana, for the benefit

of the public, in aid of any harbor or harbor project as

well as in aid of navigation may widen, straighten and deepen

any wa tercou rse, navigable stream or lake for harbor purposes

as well as.for purposes of navigation. I.C. 19-4-16-1,

Acts 1915. No such project may be taken until the consent

of the United States Government so to do is first procured

in the case of navigable streams and navigable bodies of

water controlled by it. Authority is given to said city or

town which has acquired property for this purpose, by gift,

purchase or condemnation, to turn the same over to the United

States Government, it if deems it to be best to do so.

I.C. 19-4-16-2. The Act further provides for damages to any

riparian owner whose land is cut off from the straightened

stream, canal or navigable river. I.C. 19-4-16-6.

The enabling legislation to establish modern harbor

and facilities was enacted in 1961. I.C. 8-10-1-1 et seq.,

Acts of 1961, as amended. It authorized the Commission to

establish a public port on Lake Michigan, and by later

amendments authorized the establishment of additional ports

on the Ohio River and the Wabash River. In a very lengthy

opinion in the case of Orbison v. Welsh, 242 Ind-385,

131.

179 N.E.2d 727 (1962) the Supreme Court of Indiana upheld

the constitutionality and legality of the Indiana Port

Commission Act. The Commission was empowered to acquire

lands, including lands under water and riparian rights,

property, rights-of-way, easements and the like by purchase

or by appropriation. The title to the property condemned

was to be taken in the name of the State of Indiana.

I.C. 8-10-1-11. The powers and duties of the Commission were

broad and complete in terms of conducting a major public

port business. I.C. 8-10-1-7.
In 1967, the Indiana' Port Commission was authorized,

alone or with th e federal government, to construct a new

canal or canals or to improve any existing canal, river or

other waterway including but not limited to dredging in a

manner to accomodate water borne transportation and the con-

struction of wharves, docks and other facilities for the

unloading of barges and other boats. I.C. 8-1072-1,

Acts 1967.

In 1959, the General Assembly authorized the creation

of port authorities by local governments.. I.C. 8-10-5-2,

Acts 1959, as amended. Municipal corporations, counties

or any combinations thereof were authorized to create a

port authority, but the Act specifically excluded counties

having three or more cities of the second class or any

municipal corporation located within any such county -

and the only county coming within this provision was Lake

132.

County, Indiana. I.C. 8-10-5-21. This section excepting

Lake County from the provisions of the locally created port

authority was repealed in 1975 and at the same time'direct

authority was given to Lake County and its political subdivision

to create such a local port if desired.

The Act authorized the creation of a port authority,

a board of directors, and granted powers, including the power

of-eminent domain, the power to issue revenue bonds and to

make certain tax levies.

D. DREDGING, FILLING AND EXTRACTION:

The traditional actions of dredging, filling and extrac-

tion were controlled by federal and state authorities in

order to avoid obstructions or impediments to naviga-

tion. In recent years, an equal concern of these authorities

is the consequence of fill or dredging on the nation's effort

to restore and maintain the integrity of its waters. By

definition under the Water Pollution Control Amendments Act

of 1972, the term "pollutant" means dredged spoil, solid

waste, biological materials, rock, sand, and cellar dirt,

among others. 33 U.S.C. �1362.

1. Federal Matters:

Under the River and Habor Act of 1899, a continuing

source of law for protection of navigable waters, it has been

unlawful to discharge or deposit from a ship or floating

craft of any kind, or from the shore, manufacturing establish-

133.

ment or mill of any kind, any refuse matter other than that

flowing from streets and sewers and passing therefrom in a

liquid state into any navigable,water of the United States.

33 U.S.C. �407. Likewise, it has been unlawful to deposit

material in any place on the bank of a navigable water where

the same is liable to be washed into the navigable water by

tides, storms or floods, whereby navigation may be impeded

or-obstructed. It provides that the Secretary of the Army,

whenever the Chief of Engineers has determined that anchorage

and navigation will not be injured thereby, may permit the

discharge of refuse into the navigable waters. While the

prohibition of deposit and discharge remains, the permit

authority of the Secretary of the Army as to "pollutants"

has been superceded by the permit authority provided to

the Administrator of the Environmental Protection Agency

under the Federal Water Pollution Control Act Amendments of

1972. 33 U.S.C. 91342. The same amendments of 1972 authorized

the Secretary of the Army, acting through the Chief of

Engineers, to i.ssue permits for the discharge of dredged

,or fill material into navigable waters at specified disposal

sites, although the Administrator of the EPA has the right to,

set certain guidelines and to prohibit or restrict certain

disposal sites upon finding that the same would have an

unacceptable or adverse affect on municipal water supplies,

shellfish beds and fishery areas, wildlife or recreational

134.

areas. 33 U.S.C. �1344. The consequence appears to be

that a person se eking to act with respect to dredging or fill

must secure permits from both the EPA and the Corps of Engineers.

Under the Amendments of 1972, each state is invited to submit,

for EPA approval, a program under which the state agency will

issue discharge-permits insuring compliance with effluent
limitations-and standards of performance. 33 U.S_.C. �1342(b),

1316(c). The Indiana Stream Pollution Control Board of the

Indiana State Board of Health has complied with these sections

and is the state agency issuing such discharge permits.

Such state issued permits remain subject to review and veto

by the EPA Administrator. 33 U.S.C. �1342(d).

The River and Harbor Act of 1899 also declares it to

be unlawful to excavate or fill the coursel location, condi-

tion or capacity of any harbor, lake or enclosure within

the limits of any breakwater or of any channel of any naviga-

ble water of the United States unless the work has been

recommended by the Chief of Engineers and authorized by the

secretary of the Army prior to beginning the same. 33 u.s.c.

�403.

33 U.S.C. 9402, of the 1899 Act, authorizes the

Secretary of the Army to establish .harbor lines for the

preservation and protection of harbors beyond which no

deposits may be made without further permission from him.

Under 33 U.S.C. �419, the Secretary of the Army is

135.

authorized to prescribe regulations to govern the transporta-

tion and dumping into any navigable waters or waters adjacent

thereto of dredgings, ear th and other refuse materials of

every kind'and description. See: 33 C.F.R. 205.10 for

regulations. In 1910, the Congress dealt with depositing,

dumping and discharge into Lake Michigan at any point

opposite or in front of the County of Cook, in Illinois, or

the County of Lake, in Indiana, within eight miles from the

shore of said Lake. It made it unlawful to deposit, dump or

discharge any refuse matter of any kind whatsoever other than

that flowing from streets and sewers and passing therefrom in

a liquid state into the Lake, unless said material was placed

inside of a breakwater so arranged as not to permit the escape

into the body of a lake or to cause contamination thereof.

33 U.S.C. �421.

Under 33 U.S.C. �1371, the Water Control Pollution

Act Amendments of 1972, discharges of pollutants into the

navigable waters subject to the Rivers and Harbors Act of

1910 and the Su pervisory Harbors Act of 1888 are to be
regulated by the amendments of 1972, except as to the effect@

on navigation and anchorage. The same section states that the

amendments of 1972 shall not be construed as limiting the

authority or functions of any officer or agency of the United

States under any other law or regulation not inconsistent

with the chapter, or affecting or impairing the authority

of the Secretary of the Army to maintain navigation under

136.

the River Harbor Act of 1899; except that any permit issued

under 33 U.S.C. �1344 of the Amendments of 1972 shall be con-

clusive as to the affect on water quality of any discharge

resulting from any activity subject to 33 U.S.C. �403.

As presented earlier, 16 U.S.C. �662 imposes the require-

ment that whenever the waters of any stream or other body

of water are proposed or authorized to be impounded, diverted,

the channel deepened or the stream or other body of water

controlled or modified for any purpose whatever, including.

navigation and drainage, by any department or agency of

the United States, or by any public or private agency under

a federal permit or license, such department or agency first

shall consult with the United States Fish and Wildlife Service

of the Department of the Interior with a view to the conserva-

tion of wildlife resources. The report and recommendation of

the Secretary of the Interior, and any like report by the

head of a State Agency, on the wildlife aspects and the

suggestions for preventing the loss of or damage to wildlife

resources shall be made a part of any report submitted to

the federal government responsible for the engineering surveys

and construction of the project and subsequently to the Con-

gress or any agency thereunder having authority to authorize

the construction-of the project. With some limitations, the

federal agencies authorized to construct and operate the

water project are authorized to modify or add to the structures

or operation in order to accommodate the means and measures

137.

for conservation of wildlife resources as an integral part

of the project. 33 U.S.C. 9662(c).

The interpretation by the court that under the Water

Pollution Control Act Amendments of 1972, the Congress intended

to exercise its powers ov er the waters of the United States

to the fullest, and by defining the term "pollutant" to include

fill and dre dge material, the dredging or filling of the

waters of the United States are firmly regulated by both

the Department of Army, through the Chief of Engineers, and

by the Environmental Protection Agency, through its authorized

state agency. Any such dredge or fill activity may only

occur upon satisfying these regulatory and permit issuing

authorities that navigation will not be impaired or obstructed,

and that effluant limitations as to water quality will be

met.

2. State Matters:

The Department of Natural Resources of the State of

Indiana is charged with the power, duty and authority to

issue permits to any person to take sand, gravel, stone or

other mineral or substance from or under the bed of the

navigable waters of the state. I.C. 14-3-1-14(10).

In addition, the Department of Natural Resources has the

right, power and duty to determine, designate and define

natural drainage and reclamation areas, and to prepare the

engineering computations relating thereto. I.C. 14-3-1-15.

It remains unlawful for any person to extend the

138.

shoreline of a meandered or unmeandered public fresh water

lake in Indiana (defined to exclude Lake Michigan or any

lake in Lake County) by excavating or by filling into the

waters of such lake without the permission of the Department

of Natural Resources. I.C. 13-2-11-2. It is unlawful to

make any deposit or excavation in or on any floodway which

will adversely affect its efficiency, unduly restrict its

capacity, constitute an unreasonable hazard to the safety

of life or property, or be deterimental to fish and wildlife.

I.C. 13-2-22-13.

Riparian owners bordering on the waters of Lake Michigan

are given a statutory right to fill in and reclaim the sub-

merged land adjacent.to their property between the shore and

the harbor line, with the approval of the Governor and the

Natural Resources Commission. I.C. 4L@8-13-1,-2,-3.

There are various stat utes of the State of Indiana

relating to surface mining and strip mining, including the

provisions for issuance of permits and the requirements for

reclamation. I.C. 14-4-2-1 et seq.; I. C. 13-4-6-1 et seq.

Within the Department of Natural Resources is an oil and gas

division which regulates the drilling and production aspects

of oil and gas within the state. I.C. 13-4-7-1 et*seq.

The Department of Natu ral Resources is given authority to

contract with others for the exclusive right to prospect and

explore for petroleum on public lands of the state.

139.

I.C. 14-4-3-1 et seq. *This Act requires that a permittee

compensate owners of private rights and the State of Indiana

for damage to the surface rights, and it further provides for

royalty payments. This Act would authorize the Department

of Natural Resources to lease lake beds and river beds for

prospecting, exploration and production of petroleum.

I.C. 14-4-3-25.

E. WATER LEVELS:

1. Ordinary High Water Mark - A Search for Definitions:

At common law, the "ordinary high water mark" 'with

respect to the ocean, sea and other water bodies in which

the tide ebbs and flows meant the high line on the shore

marked by the normal periodic flow of the tide. Unlike the

waters of England, or ocean states, lakes, rivers and streams

of Indiana are not subject to tidal changes.

In Indiana, therefore, "ordinary high water mark" is

the line described by the water at its ordinary stage from

season to season unaffected by extraordinary flood or drought,

and unchanged by artificial means.

The United States Supreme Court established a definition

of "ordinary high water mark" of a navigable stream in the

case of Howard v. Ingersoll, 54 U.S. 380 (1851). The court

used the "vegetation test", setting the mark to be a point

up to which the presence and action of the water is so

continuous as to destroy the value of the land for agricultural

140.

purposes by preventing the growth of vegetation. After further

qualifying its definition, the court said:

"Such a line may be found upon every river,
from its source to its mouth. It requires
no scientific exploration to find or mark
it out. The eye traces it in going either up
or down a river, in any stage of water."
Howard v-. Ingersoll, 54 U.S. at 415.

The Federal court have not restricted the determination

to the vegetation test alone.

If there is a clear and natural line impressed upon the

bank, it is to be given equal consideration in determining

the "ordinary high water mark."

"If there is a clear line, as shown by erosion,
and other easily recognized characteristics
such as shelving, change in the character of the
soil, destruction of terrestrial vegetation,
and litter, it determines the line of ordinary
high water. . . Another important consideration
in determining the line is the character of a
bank or shore at the particular site in issue."
Borough of Ford City v. UnitedStates, 343 F.2d
645, at 648 (3rd Cir. 1965)

Although some Indiana decisions refer to the "ordinary

high water mark" the courts have not added a precise definition

with its use. Perhaps hard to define, apparently one knows it

and recognizes it when he sees it.

The Corps of Engineers under the Secretary of the

Army, has prepared regulations for the disposal of dredged

and fill materials under 404(a) of the Federal Water Pollution

Control Act Amendments of 1972. 33 U.S.C. �1344. The Corps

of Engineers have adopted the following definition:

"Ordinary high water mark" with respect to
inland fresh water means the line on the shore

141.

established by analysis of all daily high waters.
It is established as that point on the shore
that is inundated 25% of the time and it is derived
by a flow-duration curve for the particular water
body that is based on available water stage
data. It may also be estimated by erosion or
easily recognized characteristics such as shelving,
change in the character of the soil, destruction
of terrestrial vegetation or its inability to
.grow, the presence of litter and debris, or other
appropriate means that consider the characteristics
of the surrounding area. 40 Fed. Reg. 31325 (1975).

This definition by the Corps of Engineers represents

a combination of the various definitions established by

case law and logic, and probably represents an appropriate

definition for "ordinary high water mark" of Indiana's lakes,

rivers and streams.

2. Great Lakes Water Levels - The International
Joint Commission of the United States & Canada:

(a) Generally:

The International Joint Commission--(IJC) is a permanen t

international body composed of representatives of the United

States and Canada and authorized by the Boundary Water Treaty

of 1909. Its purpose, generally, is to provide for adjustment

and settlement of problems and disputes over the use of the

waters along the common boundary between the two countries.

Under the treaty, the IJC was given two major functions.

One is the authority to approve applications for obstructions,

uses or diversions of water which affect the natural level

or flow of water on either side of the international boundary

line. The IJC, for example, approved the St. Mary's River

(SoUix St. Marie) project and the dams located at Massena,

142.

New York.

The other major function concerns references of matters

or problems affecting the common boundary of the two govern-

..ments, and the IJC is charged with investigating and reporting

findings to the two governments. The United States and

Canada, following such reports and recommendations, each

decide whether to accept or act upon the recommendations

of-the IJC.

At the present time, the water levels of only two

of the Great Lakes, Lake Superior and Lake Ontario, are

regulated. On October 7, 1964, the IJC. was directed to

study the feasibility and public benefit of further regula-

tion of the water levels of the Great Lakes. Such regulation,
it is suggested, would avoid the present high and low levels

due to cyclical changes, control flooding, improve domestic

water supplies, sanitation and navigation. From such regula-
tion, it is suggested, the Great Lake's could provide increased

use for power, for agricultural, for recreation, and for

conservation of fish and wildlife.

Although the present crisis in Lake Michigan is due

to high water levels in the Great Lakes, the Great Lakes

basin moves in irregular cycles . one may anticipat e that the

future will bring low water levels which would reduce the

present shoreline erosion problem but adversely affect commerce

and navigation. One ought to think of the several Great

Lakes as a basin. The water levels of the Great Lakes are

143.

interdependent upon one another and solution of problems

should be approached with this in mind.

The fluctuation in the water levels of the Great Lakes

are generally considered to be of three different classes.

The first are the long term fluctuations. They are caused

by persistent high or low supplies of water in the bas in,

and for the most part determined by annual precipitation

above or below normal amounts. Second are the seasonal fluctu-

ations which are reflections of the annual hydrological cycle.

ordinarily, this causes peak levels of water supplied to

the basin during the spring and early summer from thawing

of melting snow and runoff of excess water. The third is

a short period fluctuation, which is ordinarily caused by

meteorlogical disturbances on a more day to day basis. Rain

storms, and wind-induced waves are typical examples.

(b) Recent Problems, Actions and Proposals:

The record high water levels of the Great Lakes

during the early 1970s with its attendant damage to shore-

lines and property, has caused a critical re-evaluation to.be

made of the water level regulation policy as set forth by the

treaty.

In 1914, upon recommendation by the IJC, the United

States and Canada granted permission to use part of the

outflows from Lake Superior for power and generation. A

condition of this provision was that the level of Lake

144.

Superior be maintained "as nearly as may be" between 600.5

feet and 602.0 feet, International Great Lakes Datum (IGLD).

.The plan was designed to allow outflow from Lake Superior
for'the sole purpose of maintaining- the water in Lake Superior

within the Treaty level, and is known as the 1955 Modified

1949 Plan.

In an effort to combat the damages caused by the high'

water levels, the United States applied to the IJC to

reduce the flow from Lake Superior to Lake Michigan and

Lake Huron. On February 1, 1973, a new proposal, known as

the SO-909 Plan, was approved. Under the new plan, the out-

flow from Lake Superior would be adjusted from time to time

so that Lake Superior, on the one hand, and Lake Michigan

and Lake Huron, on the other hand, would be kept in the same

relative proportions above or below their long term average

levels for the period from 1900 to 1967. The IJC recognized

that by maintaining a higher level on Lake Superior additional

damage may be caused to the littoral or riparian owners

along its shore, and recommended that reasonable compensation

be made to these owners. Apparently, the SO-909 Plan, so

far, has not brought the lake level of Lake Superior above

the maximum 602 feet required by the Treaty.

On February 26, 1974, the IJC gave a briefing to the

Conference of Great Lake Congressmen, and the Committee on

145.

Public works of the House of Representatives of the United

States. This briefing was with respect to a study report

on a matter originally requested on October 7, 1964, regarding

the regulation of Great Lakes water levels. The IJC's

findings are summarized as follows:

1. The new plan SO-909 is expected to provide
small benefit to the problems created by
high and low water levels.

@2. The construction of control works to regulate
all five lakes has an unreasonably high
cost ratio to anticipated benefits.

3. To accomplish regulation of all lakes,
the St. Lawrence'river would need sub-
stantial improvement. Such improvement
has inherent dangers especially to the
City of Montreal, Canada.

4. The more feasible solutions involve:

(a) Land use zoning; and

(b) Structural setback requirements.

A United States representative suggested the funding of

relocating individuals and even communities from the shore

area, at government expense. He noted that such relocation

has traditionally been included as a part of the federal

government's interstate highway program, and he suggested

that'the analogy to water commerce was an appropriate one.

At the present time, the IJC report is under considera-

tion by the Department of State of the United States, and the

corresponding branch of Canada. The Department of State is

reviewing these recommendations with the affected states and

with interested federal agencies. In addition, communities

146.

along Lake Michigan and particularly in Illinois, are seeking to

increase the present limitation on diversion of Lake

Michigan water set by the court at 3,200 cubic feet per second.

However, curing one problem often leads to the creation of

a new one. Any action to ameliorate existing problems in

the Great Lakes system from Lake Superior outward through

the St. Lawrence River to the Atlantic Ocean has the likelihood

of.creating new problems. Likewise, increased diversion

at and about Chicago could create increased levels along

the Mississippi River and create flood damage to that river

system.

147.

ARTICLE VIII

GOVERNMENTAL AND REGULATORY JURISDICTIONS
WITHIN THE COASTAL ZONE

A. STATE AND FEDERAL:

The s'tate*and federal governmental and regulatory

bodies having jurisdiction within the-coastal zone are many.

A listing of these-would not advance the knowledge of a person

interested in these'matters.' Therefore, the state and.federal

are identified and discussed in other aspects of this

study in a manner tending to better explain.their duties,

-powers and inter-relationships.

B*. LOCAL AN INTRODUCTION:

The powers of local governmental bodies may affect

decisions-as,to the use of-coastal resources'. Their powers,

however, are for the most part conferred through general

legislation of statewide impact.

Local government in Indiana generally comprises cities,

towns,.-counties and to alesser.degree, townships. Each of
these units of local'government possess specific authorities

to initiate or facilitate certain projects using land or

affecting the use of land. Except for townships, these units

of local government possess powers. to restrict certain land

148.

uses. In addition to specific-powers, a broad residual
power,-.9r. home rule, has been expressly conferred on cities
and counties by the General Assembly during the past few

years.

C. LOCAL FORMATION OF COUNTY, CITY OR TOWN:

In Indiana, all'civ_11@6'ities of the Stateare classified

by population into five groups, from first class city to

fifth class city. I.C. 18-2-1-1. The creation of cities

from towns and the creation of new or altered counties from

existing ones is essentially dependent upon popular initiation.

The procedure-for creation of cities from towns is found

generally in I.C. 18-3-3-1 et seq., and the procedure for

formation or alteration of counties is generally found in

I.C. 17-1-10-1 et seq., and 17-1-12-1 et seq.

A civil.-town does not become a civil city automatically

upon attaining a.certain population level. Rather, the
procedure for creation of a civil cit@y a the town must
be observed... S66: I.C. 18..3-2-1. However, a city of one"

class apparently will automatically become a city of another

class "by reason-of a change in population."' I.C. 18-2-1-3.

The incorporation of,civil towns lies substantially

in the control of the Commissioners of the County' in which the

proposed town would lie. See:'_I.'C.@18-3-1-3 to 11. If the

county commissioners are reasonably satisfied that certain
pre-requisites arem .e.t, then hearings for incorporation

149.

of a town may proceed. See als'o: Hatcher v. Board of

Commissioners of Lake County, 155 Ind. App. 27, 290 N.E.2d

801 (1972).

The abolition of townshi@)s, or the alteration of their

boundaries, lies within the power and-discretion of -he board

of county commissioners, which'board may exercise this deter-

mination only after petition by a majority of the freeholders

of-the township or townships to be affected. I.C. 17-1-21-1.

D. LOCAL GOVERNMENT SOME SPECIFIC AUTHORITIES:

1. Annexation:

Civil cities have the power to annex contiguous

territory in one of two ways. An ordinance is adopted which

becomes final and binding,60 day's after publication unless a

certain number of landowners in the area to be annexed file

a remonstrance with a court of appropriate jurisdiction,

and the remonstrance is sustained. I.C. 18-5-10-19,-20, 24 and 25.

Annexation may be made by a procedure under which a

majority of-the owners of real estate within a given territory

outside but adjacent to the city boundaries petition the

common council for the annexation of that territory. If the

common council fails to pass an ordinance-annexing-the terri-

tory, the petitioner's may file a request for annexation in

a court of appropriate jurisdiction.. Thecourt has the power
to order annexation provided certain determinations are made,

among others, that the civil-city is able to provide the

150.

territory with principal municipal services not then available

to th.e.territory. I.C. 18-5-10-23.

Civil towns, likewise, have*the powers to annex adjacent

territory by procedures essentially the same as those required

of civil cities. See: I.C. 18-5-10-30. Towns are restricted,

however, in annexation and may not annex territories which

lie within certain distances, by miles, of first, second

and third class cities without the approval of the common

councils of those cities.,- I.C. 18-5-10-31.

2. Sewers, Sewage and Waste Disposal:

Cities have extensive powers with respect to sewage

and waste materials. They have specific'power to construct,

maintain, 6on'tto I 'and op'er-d-te --f a`c-i'lit.i-es under the General

-POwers@ -of --Cities Act of'' 19 71; under its general police power!@.,,

cities can deal with respect to health, sanitation and control

of public fa-cilities. I.C. 18-1-1.5-7(k), 7(j), and 14(k)..

In most cities, powers ar e given for the establishment

O.f@a board of sanitary commissioners who operate, generally,

as'a separate taxing district. I.C. 19-2-14-1;-I.C. 19-2-18-1;

and I.C. 19-2-27-1; I.C. 19-2-28-1. In addition, the city

may carry out these same functions within a department of the

city;.

The-Refuse Disposal Act sets forth the methods by which

cities and towns may finance various solid and semi-solid waste

disposal facilities. I.C. 19-2-1-1 et seq.

It appears that certain sanitary districts may charge

151.

for sewage disposal services, determine rates and charges

for residential as.well as industrial-users, and contract

with users outside the limits of the district. I.C. 19-2-20-1

et seq.; I.C. 19-2-14-32.

In 1967, the General Assembly added another separate law

authorizing sewage treatment plants. I.C. 19-2-5-1 et seq.

it authorized cities and towns to acquire and operate

sewage treatment plants and all of the connecting sewers,

mains and the like necessary and convenient to collect, treat

and dispose of, in a sanitary manner, liquid and solid waste,

sewage a nd industrial waste of the city. It authorized the.

establishment of'charges and rates in harmony with the'-

services rendered, and the il@eth6d'fbr collecting t1id's6me.
'"'By '1'9'75' 'amendment,' Charges and rates' can now be fixed. on one

---or any combination of various bases, including flat charge,

amount of water used, number and size of water outlets,

and the like.

Although counties are included in the grant of power

made under the Refuse' Disposal Act (I.C. 19-2-;-1-1 et seq.),

they are specifically denied jurisdiction over-the construction,

operation or maintenance of the publicly owned or financed

sewer systems or the sanitation and disposal plants (I.C.

17-2-22-3). However, townships and counties, including

other political subdivisions and entities, may petition the

Stream Pollution Control Board of the State of Indiana for

the organization of a regional water and/or sewage district.

152.

@.I.C. 19-3-1.1-1- et seq. Atter-notice and hearing, the'
'Stream Pollution Control Board-may approve a plan establishing

such a regional district, and if so, extensive powers are

given to its board of trustees and officers including

authority*for condemnation and issuance of revenue bonds.

I.C. 19-3-1.1-8, 12, 15 and 17.

3. Powers to Regulate:

citie's are granted broad powers to take action and

exercise controls to preserve peace and good order, and

to secure freedom from dangerous and noxious undertakings

or*activities. I.C. 18-1-l.5-6. 'A city has the power to

take action and exercise controls to secure and promote the

general public health and welfare, to establish, maintain

and control public ways, to establish, maintain and control

water courses, to take actions and exercise control relating

to improvement, maintenance and use of real property including

planning, zoning and construction of buildings, to exercise

control relating to the improvement, maintenance or use of

real property below ground level, including the introduction

of any substance into any underground stream or body of water,

to exercise control relating to the use of air, to regulate

businesses that affect the public health or safety, to establish,

maintain, control and operate public and municipal facilities,

to establish, maintain and operate a police and law enforcement

system, a fire fighting and prevention system, and the facilities

and equipment to conduct said sy Istems, and certain residual

153.

powers discussed below. I.C. 18-1-1.5-6 to 16.

The cities are denied the exercise of any judicial.

power, and are denied certain powers reserved exclusively to

the state such as laws governing private or civil relation-

ships, defining and providing for the punishment of crimes

and the power to require a certificate of permit generally

under the jurisdiction of the Public Service Commission.

I.C. 18-1-1.5-18.1 19. Citfes--4hall not exercise certain

unless they are expressly granted to it by law.

I.C. 18-1-1.5-20. While towns have many of the same.powers

as cities, several powers a re implied from others or deemed

by it to be reasonable and necessary to carry into effect

the specific powers granted to,it. I.C. 18-3-1-35 to 52.

Townships appear to have no express powers to limit

or restrain private actions or uses of property. Prior to

home rule, discussed below, counties were limited to specific

powers of regulation, such as. the power to enact plumbing

ordinances, fire prevention ordinances and minimum housing

code provisions. I.C. 17-2-48-2; I.C. 17-2-21-l.; and

I.C. 17-2-72.5-1. Traditionally, powers not expressly

granted to counties have been,taken to lie beyond their

authority. See:-1967 O.A.G. No. 64, page 34.

154.

E. HOME RULE:

1. Home Rule - For Cities:

In 1971, the Indiana Gener al Assembly conferred a form

of home rule on cities, without distinction as to their

various classes. I.C. 18-1-1.5-1; I.C. 18-1'1.5-16.

In section 1 of the Powers of Cities Act, it provides:

"All cities shall have the powers set forth
. . .1 which powers may be exercised within
their territorial limits, and in such addi-
tional areas as may be specified herein,
to the extent deemed by the appropriate
branch, officer,.department or agency of any
city to be necessary or desirable in the public
interest of its inhabitants. Any such
power may be exercised by a city under authority
of this chapter only if and to the extent
that such power is not by express provision
denied by law or by express provision vested
by any other law in a county, township or
the state, special taxing district or separate
municipal or school corporation." I.C. 18-1-1.5-1,
as amended.

This section seems to authorize the exercise by a city oftthese

powers where such exercise may not be necessary b.ut only

desirable. The latter portion of the section was amended,

as shown, and is a substitution for the original language

limitation to the extent that such power is denied
or pre-empted by any other law or is nA. vested by any other

law . . .

After enumerating specific powers for cities, the

Legislature concluded with section 16 of the Power of Cities

Act which provided that in addition to the powers specifically

enumerated,

155.

Every@c"Ity may', within its territorial
@j'urisdiction,'.except as otherwise provided
in this chapter, exercise any power or per-
form any-function necessary in the public
interest in the conduct of its municipal
or internalaffairs, which is not prohibited
by the Constitution of this state or the
Constitution of the United States, and which
is not by express provision denied by law or
by express provision vested by any other law
11 I.C. 18-1-1.5-16, as amended.

This section is entitled "Residual Powers." The

exercise of a "residual power" may require stricter tests

than those set forth in section 1 of the Act. The exercise

of a "residual power"'must be necessary (and not simply

desirable),must be necessary (and not be deemed necessary),

and it must occur in'the "conduct of municipal or internal

affairs" (and not simply "in the public interest").

One of the following sections lists the powers denied

to the cities, which powers are reserved exclusively to the

state. These powers denied include the power to enact laws

governing private or civil relationships, the power to define

and provide for the punishment of crime, except ordinances

with certain limitations, and the power to franchise or

permit to operate certain common carriers under the juris-

diction of the Public Service Commission. I.C. 18-1-1.5-19.

IX. 18-1-1.5-20 further limits a city from exercising

certain powers unless such powers are expressly granted by law,

and then only to the extent and in the manner provided by law.

They include the-imposition of any tax, the imposition of duties

156.

upon any other city, town or municipal corporation, the

regulati on of private activity outside its territorial

jurisdiction and others.

In these sections, the Legislature apparently intended

to turn around the traditional method of judicial construction

and interpretation which held previously that cities can

exercise only those powers which are specifically granted to

it-or necessarily implied or indispensible to the carrying

out of its express powers.- These sections may require'sub-

stantial judicial interpretation; nevertheless, they suggest

-that the court exercise a contrary method of construction

under which the power shall be considered to be possessed by

the city unless expressly denied or expressly vested by

some other law.in some other governmental body.

2. Home Rule - Legislative Grant and
Not Constitutional Amendment:

It is important to the understanding of the grant

of home rule power t1o cities in Indiana that one -recognize

that the grant of residual powers was made by an act of

the State Legislature and not by or through an amendment

to the Constitution of the State.of Indiana. The power

of the legislature to grant or deny,.'to expand or contract

the powers of cities, both those' previously given as well

as those allowed by these sections, has not been altered,

restricted or limited in any manner.

Rome rule in other state jurisdictions has had a firmer

157.

foundation. In the State of Illinois, home rule was conferred

upon municipal governments through a provision of the state

constitution. See: Illinois-constitution,.Article VII,

Section 6. Moreover, the Illino is Constitutional provision

requires that home rule units may not be denied or limited

in their exercise of those powers not exercised by the state

except by a -law approved by three fifths of all the members

elected to each house of the general assembly. In Indiana,

the State Legislature, b y simple majority, may withdraw all

of the called home rule powers now in force.

3. Home* Rule - Coun ties:

By an act of 1975, the counties of Indiana have been

given home rule authority in much the same language as

was granted to th e cities under the provision relating to

residual powers. I.C. 17-2-2.5-1 et seq. In a more

di rect fashion,.the traditional rule of.judicial construction

was repudiated.

. . . The rule of law that counties have only
those powers expressly conferred by statute,
necessarily implied or (in)dispensible to
its declared objects and purposes, and that
any fair doubt as to the existance of a power
shall be resolved against the existance thereof,
shall have no application to the powers granted
to counties herein."' I.C. 17-2-2.5-6.

In conferring the residual powers to counties, the legis-

lature authorized the exercise of any power or the performance

of any function "necessary to the public interests and the

conduct of its county or internal affairs,." not otherwise

158.

prohibited "or pre-empted by any other law" or not vested by

any other law in any other governmental unit.

The act granting home rule to counties contains the

pre-emption clause which was repealed from the home rule

act related to cities. In addition, in the county act,

the Legislature set out a statutory construction indicating

when-its intention shall be held to pre-empt the subject

matter of such law or to occupy the field in which such law

operates and thereby to deny the power to the county.

I.C. 17-2-2.5-7.

4. Home Rule - Court Decisions:

To date, there have been some appellate court cases

which have interpreted the grant and exercise of home rule by

cities. To date, there have been no appellate court cases

interpreting the 1975 Act granting.home rule to counties.

In the case of City of Indianapolis v. Sablica,

Ind. 342 N.E.2d 853 C1976), Sablica sought to

establish that an Indianapolis ordinance imposing fine and

jail sentence for taunts or other disrespectful conduct

toward police officers making arrests or conducting investi-

gations was violative of the Indiana Constitution. Sablica

argued that the ordinance violated the constitutional require-

ment that state laws defining crimes and misdemeanors shall be

of uniform operation throughout the state, as found in

Article IV, Sections 22 and 23 of the Indiana Constitution.

He further argued that-the existence of a state law concerning

159.

interference with State officers in the execution of their

duties, found in I.C. 35-21-4-1, pre-empted the subject
matter of thelaw. In invalidating the city ordinance, the

Supreme Court said;

When the Legislature has enacted a
general law defining a crime or misdemeanor,
such action necessarily implies that there is
no room for supplementary or complimentary
local legislation,,even if the subject were
otherwise one properly characterized as a
'municipal affair."'. City of Indianapolis v.
Sablica, Ind. 342 N.E.2d at 854.

Since the Court ruled on the basis of the doctrine of

pre-emption, it was unneces sary for the court to reach the

constitutional questions which were also raised, and the

court set aside the trial court's order declaring sections

18-1-1.5-1, 2 and 19 unconstitutional.

In an earlier decision, the City of Bloomington adopted

a landlord - tenant ordinance, which the Appellate Court

held to be invalid as an attempt by the City to legislate

its own private contract law for landlords and tenants in

-violation of I.C. 18-1-1.5-19 of the 1971 Act which particularly

denied to cities the power to enact laws governing private

or civil relationships. The City of Bloomington v. Chuckney,

Ind. App. 331 N.E.2d 780 (1975).

The Appellate Court also struck down an order by the

Richmond Board of Public Works which directed the owner of a

fast food restaurant to remove a curb cut previously approved

by the Indiana State Highway Commission. In an effort to

160.

support the action of the Board of Public Works, counsel for

the city argued the residual powers section. The Appellate

Court concluded that the city*'s order was not issued pursuant

to an adequately detailed-ordinance, and the residual powers

section "is clear in stating that a municipality's residual

powers are to be exercised by ordinance." City of Richmond v.

S.M.O., Inc., Ind. App. 333 N.E.2d 797, 799 (1975).

One of the first ca.ses which affirmed a city's use of

the residual powers was a federal decision entitled Barrick

Realty, Inc. v. City of Gary, 491 F.2d 161 (7th Cir. 1974).

The City of Gary enacted an ordinance prohibiting the di splay

of "for-sale" and "sold" signs on premises located in residential

areas of the City. The Court of Appeals for the 7th Circuit

upheld the trial court's finding that the ordinance was

within a permissible range of powers authorized by I.C.

18-11.5-16 as an exercise of power necessary in the public

interest and the conduct of its municipal affairs to prevent

"panic peddling" of real estate in racially changing areas.

F. ZONING AND SUBDIVISKDN CONTROL:

1. The Zoning Power - Generally:

. . . (Z)oning is a process. It is part of
that politi@al technique through which the
use of private.land is regulated. When zoning
is thought of as a part of the governmental
process, it is obvious that it can have no
inherent principals separate from the goals
which each person chooses to ascribe to the
political process as a whole." Babcock, The
Zoning Game; Municipal Practices and Policies,

161.

'1966 at page 125.

The zoningpowers are based upon the exercise of the

police power of the state, granted to its political subdivisions,
to be exerci sed in the 'interest of public health, safety and

general welfare.

The essential fiber of a zoning ordinance is its

comprehensive plan,.

"A plan that makes provision for all the uses
that the legislative body of. the municipality
decides are appropriate for location somewhere
in that municipality; . . . At the intensity
of use that the legislative body deems to be
appropriate . . . Beyond.that the plan should
consistently represent development objectives
of the community." Babcock, supra, at page 122.

The constitutionality of the authority to enact a

comprehensive zoning plan was first approved by the United

States Supreme Court in 1926.in'the case of Village of Euclid

V. Amber Realty Co., 272 U.S. 365 (1 926). The courts

of Indiana have acknowledged the powers of municipalities,

in relation to the public health, safety and general welfare,

to enact comprehensive zoning ordinances under specific

enabling legislation of the state.

2. Zoning - Enabling Legislation:

The principal enabling legislation for cities and

counties was recodified in 1947 and remains as the basic

authority for planning, zoning and enforcement. I.C. 18-7-5-1

et seq.

Under its provisions, every city and county may by ordi-

162.

nance create a plan commission in order to promote the orderly

development of its governmental units and its environs. The

plan commission will serve in an advisory capacity to boards

and officials, and in addition,.it will have certain regulatory

powers. I.C. 18-7-5-1.

Among its powers is the authority to make recommenda-

tions to the legislative body of the municipality on the adop-

tion of the master plan, its ordinance and amendments thereto,

to render decisions concerning and.to approve subdivision

plats, to develop plans for residential, commercial and

industrial uses, and to formulate policies for the development

of public thoroughfares, structures and utilities.

I.C. 18-7-5-28, 32.

The legislation prescribes the various subject matters

which may be included in a master plan and grants authority

to the commission to certify major street or highway plans.

I.C. 18-7-5-37, 38.

After adoption of the master plan ordinance, the

legislative or governing body of the political subdivision is.

to be guided and give and consideration to the general policy

and pattern of development set out in the plan, and upon

request for amendment, procedures are provided which require

review and public hearing before the plan commission, and

recommendation to the legislative body before its consideration.

I.C. 18-7-5-46.

163.

The plan commission has exclusive control over the

approval of subdivision plats. I.C. 18-7-5-54. This same

act allows for the establishment of a board of zoning appeals

which is empowered to hear and determine appeals from decisions

made by administrative officials in the enforcement of any

ordinance or regulation and to grant variances from the

strict enforcement of the ordinance owing to special conditions

which would otherwise result in unnecessary hardship.

Persons aggrieved by the action of either the plan

commission or the board of zoning appeals have the statutory

right to seek review in courts of competent jurisdiction.

I.C. 18-7-5-57, 88.

The power to zone or rezone is a legislative one to

be exercised by the council of the city or the board of

the town, subject to the powers of the plan commissions.

3. zoning - other Planning and Zoning Authority:

The Metropolitan Planning and Zoning Act of 1955 does

not have application to the coastal zone because it applies

only to counties containing first class cities,.and the only

first class city in the State of Indiana is Indianapolis,

and its county is Marion. I.C. 18-7-2-1 et seq. Another

act provides for consolidation of planning operations by city

and county, but are restricted to counties not within the

coastal zone. I.C.- 18@7-3-1 et seq.

Commentators on the zoning process in Indiana have had

two major criticisms. One is that the municipal political sub-

164.

division is too small a unit within which to exercise land use

planning to the greater public interest. Such critics
suggest that regional or even larger areas should be planned.

The second criticism relates to the fact that zoning power

in Indiana is exercised by local elected officials acting

as a legislative body. The observation of such critics

is that the -legislative function has caused zoning to become

tainted by politics and the parochial interest of local

pressure groups.

I.C. 18-7-4-l.et seq,@, created an area planning

act which authorized cities, towns and counties to cooperatively

establish a single and unified planning and zoning agency

to deal with the development of their communities on a county

wide basis. The Act did no@'apply to Lake County, Indiana,

or the cities therein, or to a county under which county-

wide planning and zoning is made mandatory by present or

future legislation. I.C. 18-7-4-98. Nevertheless, it has

application in the other counties under study, Porter and

LaPorte, and by future amendment may be made applicable to

Lake County.

A city or county desiring to participate in the establish-

ment of an area wide planning department adopts an ordinance,

under the act. I.C. 18-7-4-4. Whenever the county and at

least one city within the county have each passed such an

ordinance, and fixed the time for the establishment of such

165,

a department, the board of county commissioners then establishes

the area planning depart ment as a part of county government.
Any non-participating city shall have no authority thereafter
to exercise planning and zoning powers outside its municipal

boundaries. I.C. 18-7-4-6. Other cities may adopt such

ordinances accepting the provisions of the Act and provide for

their appointment of representatives to the Area Plan Commission.

The Act prescribes-the basis for representation of rural and

urban populations, designates the number of county representatives

and city and town representatives, and provides for other

representation.

The duties of the Area Plan Commission are substantially

similar to those granted by the general enabling legislation

for cities, towns and counties. See: I.C. 18-7-4-25. The

Area Plan Commission is to appoint an Executive Director,

to establish a compreh ensive plan of the county including a

major or highway plan, and then certify the same to the legisla-

tive bodies of the participating cities,.to the county council

and to the board of county commissioners. The comprehensive

plan is not official unless and until it has been approved by

each of the legislative bodies. I.C. 18-7-4-3'3*to 45.

At the same time, the Area Plan Commission shall

recommend to the several legislative bodies an ordinance

for the zoning or districting of all lands within the county.

After notice and public hearing, and certification of the

zoning ordinance to the legislative bodies, it shall take

166.

effect unless the legislative body has within 60 days acted

other than favorably, or unless a petition has been filed with

the commission signed by 25% of the registered voters in any
township requesting that the ordinance as applied to the town-
ship be submitted for a referendum election. As to such town-

ship, it shall be held ineffective until approved by a majority

vote, but it shall be applicable to the remainder of the

county and the remainder of other participating cities. If

a legislative body has rejected or amended the ordinance, and

it is returned to the commission, the commission shall act

with respect to the matter. If the commission has disapproved

the amendment or rejection, the action of the legislative

body on the original amendment or rejection shall stand

only if confirmed by a constitutional majority vote of the

town board or city council or a majority vote of the'board

of county commissioners. I.C. 18-4-46 to 55.

The Area Planning Act also provides for subdivision

control, plat approval and the creation of a board of zoning

appeals. I.C. 18-7-4-56 to 80. The duties of the Area

Plan Commission with respect to subdivision and appeal is

similar to that of the general plan-ning and zoning act.

Other acts of the General Assembly authorize a multi-

county planning commission, and the joinder of townships with

city planning agencies. I.C..18-7-5.5-1 et seq.; I.C. 18-7-6-1.

et seq.

167.

ARTICLE IX

PLANNING THE REGIONAL CONCEPTS

A. PLANNING - THE REGIONAL PLANNING COMMISSIONS:

At present, there are two Regional Planning Commissions
having jurisdiction within the' three county area comprising

the preliminary coastal zone. the Northwestern Indiana

Regional Planning Commission (NIRPC) hag been established

by legislative bodies of Lake and Porter Counties, and the

Michianna Area Council of Governments (MACOG) has been
established by the legislative bodies of LaPorte,.St. Joseph,

Elkhart, Marshall and Kosciusko counties.

I.C. 7-7-1.1-1 is the act adopted by the General

Assembly to provide for regional planning where legislative.

bodies desire to have it. The General Assembly first declared
a need to plan comprehensively'for the future development

of the varibug@-3fegibn:s of the state. It further found that

the problems of growth and development transcended boundary

lines.of governmental units such that the solution of problems
could not be accomplished by one single unit of government
without affecting other units. The General Assembly determined
that inter-governmental cooperation on a multi-county and
multi-jurisdictiohal basis*is-an effective method to-a'p'proach

common planning and to obtain more efficient solutions to common

problems of local-governmen.t-within the state. At the same

time, the legislature acknowledged that local units of

168.

government, which are closest to the people, ought to provide

the basic initiative and leadership and have the primary

responsibility for dealing.with multi-jurisdictional problems.

The regional planning commission is established whenever

the legislative bodies of each of.the counties adopt concurrent

resolutions requesting their establishment. I.C. 18-7-1.1-2.

The A-c-t-.presc-r-ibes-t-he-method of appointing membership

to the commission, and prescribes that at least two-thirds

of the commission membership shall be elected officials.

I.C. 18-7-1.1-4.

The powers and duties of the commission include the

initiation and maintenance of a comprehensive policy planning

and programming process for the entire region, the coordination
of its activities with_al_1@1'6cal units of government, and

the coordination of the planning programs-of the various

units of government.. The commission shall act in an advisory

capacity only. By a majority of its membership, the commission

may adopt any regional comprehensive or functional plan,

program or policy. It may receive gran ts to carry out its

activities including grants,.loans and other forms@o -f financial

--assistance-under the provision of any federal:'grant program.

it may enter into coordinative arrangements with adjacent
political subdivisions within the state or with an adjoining
state or with other regio !nal or multi-county agencies.

'It shall act as the designated review ag ency and as the

clearing house as described in Federal Office of Management

169.

and Budget Circular A-95.(A-95 Clearing House Review).

I.C.; 18-7-1.1-5.

The use, purpose and function of the regional planning

commission has increased substarytially, particularly because

many major federal programs-require local units of government

to utilize regional planning before grants to them may be

approved. Regional comprehensive planning processes are

now dealing with such major issues as water quality managementf

transportation, and solid waste management.

B. PLANNING STATE PLANNING SER VICES AGENCY:

In 1975,,the Legislature created a fund to be adminis-

tered by the State PlanningServices Agency of the State
of Indiana under which regional plannidS( and development

commissions, defined as any multi-jurisdictional or multi-

county agency, could request funds for the purpose of pro-

viding technical assistance to local units of government for

planning, and to list federal grants-for planning for which.

such regional planning and development commissions had

applied or intended to apply but which needed matching funds.

In addition to regional planning commissions, the

State Planning Services Agency was created within the executive

office of the Governor, to Perform certain functions of state

planning services. I.C. 4-3-7-1 et seq. It was the legisla-
tive intent that the State Planning Services Agency provide

planning assistance on both community and state levels, and to

170.

do planning work including surveys, land use studies and

technical services and all other elements of the comprehensive

planning program. -I.C. 4-3-7-2. The present Coastal Zone

Management program is being adm ini stered by this agency on

behalf of the State, as is'required by the federal act

creating the program..

.The State Planning Services Agency.may also be' respon-

sible to perform the planning.functions within the State of

Indiana under requirements of-the Water Pollution Control

Act Amendments of 1972 where@ there.are no regional, multi-
jurisdictional or multi-cou nty planning bodies who have

jurisdiction within an area of the State.

In this field, one can sense the impact of the
federal and'state governmehts, and regional planning bodies

upon land use regulation. Their.entry and their powers may

appear to satisfy those critics who believe the land use

-....,.tegulation should take on a scope broader than municipal

boundary lines. As one would ex'ect, there ate those who
p

believe that increasing the area of planning will not offer

greater solutions to existing problems.,

"In sum, state plannin q is not the answer.
This is not because there is something in-
herently wrong with state planning (or there
is.not) or that the sta*tes,should not be
encouraged to set up'stronger planning
agencies. It is just that one should be
aware of what is likely to come from this
level. Planning and zoning have tradition-
ally been local responsibilities. Nothing
has happened to suggest that state planning
and zoning will be any better. The same

171.

polit ic al forces are operative at both
levels." Linowes and Allensworth, The
Politics of Land Use, 1973 at page M.

Notwithstanding the impression of Messrs. Linowes and

Allensworth, the Congress of the United States has had a

land use policy and planning assistance bill before it for

several years, which legislation has been narrowly defeated

on several occassions. Among its purposes is to develop

and maintain sound policies and coordination procedures

-with respect to federally conducted and federally assisted

proj.ects on non-federal lands having land use implications.

It would-establish federal,guidelines to implement the act,

review state wide land use planning processes and state

land use programs for conformity to the act, and assist

in the coordination of the activities of federal agencies

with state land use programs; The impact of the proposed

federal legislation would be to subject local controls to

minimum standards as developed by the federal and state

agencies.

C. STATE PLANNING UNDER FEDERAL WATER POLLUTION
CONTROL ACT AMENDMENTS OF 1972

Following the enactment of.the Federal Water Pollution

Control Act Amendments of 1972,, and-@heir subsequent regulations,

an astute journalist in Louisville, Kentucky, commented:

"TWO-O-EIGNT. Remember �208. If you live in
the Louisville area, it could well affect your
life.

'Section 208 is'an obscure passage in a law

172.

-pa.ssed by Congress two years ago: the 1972
amendments to the Federal Water Pollution
Control Act.

'While the law's major-thrust is the cleanup
and prevention of water pollution,-the sections
that have to do with planning could affect the
growth of America's cities. 'Se'c'tion 208 could
influence where factories will be built, where
highways will-go and where subdivisions will be
situated. In short, it could determine how
and where people will live in the next 20 to
50 years.," Louisville Courier - Journal & Times,
June 9, 1974.

The states have initia ted a far reaching planning

process for the purpose' of.achieving the water quality goals

set out in the 1972 amendments. The process may be described

as a joint venture betWeen-state agencies and the multi-

county or regional planning agencies 'Sharing in the responsi-

bility. The process.is likely to affect land-use decisions

both directly through the regulation of potential dischargers,

and indirectly through various discharge.limitations.

..Perhaps the most important single item coming from

this planning process is a water quality man'a'-4ement plan
(WQMP), sometimes referred to as-tl@e "208" plan. Generally,
ito, coIvers a certain area,Iusually within a state, and

occassionally including contiguous portions of adjacent

states. It may be prepared either by a state agency or

by an area wide planning agency. Within the Indiana Coastal

Zone study area, NIRPC is preparing a WQMP for Lake and

Porter counties, and MACOG is preparing one for LaPorte

and its neighboring counties. These plans are subject to

173.

certification by the Governor of the state and approval

by the Regional Administrator of the Environmental Protection

Agency (EPA). Under present.-regulations, the latest deadline
for submission of-the plan to the EPA is November 1, 1978.

See: 40 C.F.R. 131.20(i).

Although a water quality management plan is required

to contain at least sixte.en elements, there are three basic

mechanisms to be designed-or.incorporated in such a plan.
First, there is 'the long term- program for area wide waste

treatment management which is called for under �208 of the

1972 Amendments.@ Using population.forecasts, the water

quality management plan is to identify the twenty year munici-

pal needs for waste water collection and treatment systems,

and is to indicate the.required capital necessary and the

finance program to fund it. This waste water treatment

component is to be used in establishing priorities for the

aw ard of construction grants under �201(g),of the 1972

Amendments.

Second, there is.to be included in the plan a complex
set of limitations on the amount of pollutants which

-sources may di scharge into-the state navigable waters.

This process of limiting discharge has two beginning points:

1. Effluent limitations, generally established
by the EPA and determining, for different
classes or sources, maximum allowable dis-
charges of pollutants.-

2.. Water quality standards, generally established
by the state and determining, for different

174.

waterways, appropriate uses and water quality
criteria necessary-to support those uses.

On the basis*of these limitations and standards, each state

is-responsible for classifying its navigable waters into

(a) segments where the application of class by class effluent

limitations is sufficient to meet and maintain the appropriate

water quality standard, and (b) segments where restrictions

more stringent than such effluent limitations will be necessary

to bring the water into-conformity with the aj3propriate

water quality-standards. These "more stringent restrictions"

are*to be incorporated in,-'and-i-n some cases revised by the

water quality management plan.. These restrictions take on

specific form as,"maximum loads" and as "load allocations":

the maximum pollutant load which a water segment can sustain

without falling below-water quality standards is determined,

and this load is specifically allocated among point-source

-dischargers along that segment. A sources discharge of the

pollutant in question may not exceed the allocation assigned

to that source.

The classification of a particular waterway as a water
quality segmen't*may'well affect and possibly deter.development,

especially industrial development, along the waterway because

of these more.stringent disch arge limitations which fall upon

the sources.located along its banks or shores.

Third, there is to be incorporated in or defined by

a water quality management program a set of more direct

175.

regulatory programs, including land use controls, which are

to shape development and use patterns in such a way as to

avoid over burden inq of the waste carryi ng capacities of

the state waters. This area of--direct regulation is still

marked by a certain tentativeness. The water quality

management plan regulations admit that new legislation on

the state level may be needed to effectuate what the regula-

tions require, namely control over the construction and

modification of point source's and the application of best

management practices with respect to non-point sources. The

term "point sour ce" is defined to mean any descernable

conveyance including a pipe, ditch, channel, container,-

rolling stock,.concentrated animal feeding operation or

vessel from which pollutants are or may be discharged. The

term "non-pooint.-'source", while not defined by the'Act, is

considered to be the accumulated pollutants in the stream,

in difuse runoff,.and in seepage*',and percolation.,contributing

to the degradation of the quality of'surface and ground

waters.

Whenever@there is a point sourcedischarge over a

.certain size, there must be a discharge permit issued,

whether-the operation be by government or by private.party.

The National Pollution Discharge Elimination System (NPDES)

is the mechanism.whereby -these point source discharges are

regulated and controlled. As has been pointed out above,

176.

the permit must take into account the quality of water to

be achieved or maintained in the. receiving stream. If a

discharge is to be made directly into a stream or water,

both the ef fluent limitations and the water quality standards

for the segment must be met.

."In-the case of publicly owned treatment works,
NPDES'permit will provide for the type and
amoun t of sewage which the treatment works can
accept for treatment. It is readily seen that
:this can effect@ land use decision as to the
type and amount of,growth in the area served
by such treatment works.- If.a'treatment works
violates terms of'ils permit,, the state or
-:-'@EPA istra or'may restrict or prohibit new
discharges into the treatment works." White,
Impact of Federal Water Pollution Controls On
Land Use Decisions, Res Gestae, August, 1976.

Some reviewers have stated that the Federal Water

Act Amendments*of 1972 are an admirably

comprehensive piece of legislation..

"It was designed't-o deal with all facets of
recapturing-and preserving the biological
-integreity of the nation's water by creating
a webb of complex,-i_nt@er-r'elated regulatory
programs." United-States v. Holland,
373 Fed. Sup-p.665, 668 (M.D.Fla. 1974).

The Act provides simply. that "the discharge of any

pollutant by any person shall be unlawful." 33 U.S.C. �1311(a).

Any addition of any pollutant to any navigable waters from
any point source is a discharge--of a pollutant. -.33 u.s.c.

S1362(12)..-

Pollutant, in turn, is defined as any dredged spoil

. . . rock, sand, celler dirt and other wastes generally

177.

considered pollutants., A NPDES permit is required, under the

act, before any discharge of a pollutant is made from a

point source into the navigable waters. The act broadly

defines navigable waters to encompass "all waters of the

United States." 33 U.S.C. 91362M.

In holding that the 11simple" act of filling in certain

non-navigable man made mosquito canals, which ultimately

emptied into waters of the United States, was within the

purview of control under the 1972 Amendments requiring the

prior issuance of a permit, Judge Krentzman said:-

"In@�102c, the Administrator of the Environmental
Protection Agency is authorized to make grants
for basin studies to provide comprehensive water
quality control plans for a basin. 'Basin' in
that section is defined to include 'rivers and
their tributaries, streams', coastal waters,
--- sounds, estuarle@s,@_. bla@y-s*, lakes, and portions
'ther-e6f _ "a's well as the lands drained thereby."
33 U.S.C. �1252(c)

What s I
these ect'ons'do reveal is 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 bottoms,
beach-and dunes) the delicately balanced
coastal environment'is'-'hi'ghly's'ensitive to human
activities within''if-s* confines. Congress
realizes that coastal''e-c'ology is endangered by
poorly planned development." United'States v.
Holland, supra, at pages.674, 675.-

178.

ARTICLE X

JURISDICTION AND LEGISLATION RELATING
TO COASTAL ZONE

A. INTRODUCTION TO TOPICAL DISCUSSION:

The following are summaries of federal and state

legislation,'and federal and state agencies. It is through

an.understanding of the legislation.that one may gain a

new picture of programs affecting the coastal zone. Agency

powers, in and of themselves (e.g. power to condemn, to abate,

to levy fines, to make grants, etc.) are not areas easily

understandable until one can view them integrated into a

particular program.

For example,-in connection with the program to reduce

air pollution,,the Environmental Protection Agency is more

comprehensible when it is viewed as an actor in a national air

quality program than when viewed through a listing of its

specific powers. The Environmental Protection Agency has a

program involving certain schedules, approval procedures,

funding methods and arrangements of incentives and sanctions.

It is in a progrard-c'ontext that the following analysis is made
-iiiid"n6t In- -a 'p"'ow'ers 6o`ntex'f_@.

To generalize, we have viewed these matters as programs

involving agencies rathdr than 'agencies exercising powers.

The present or potential impact on the resources of the

coastal zone appears to be better understood through an

179.

assessment of programs involving agencies. This appears

to hold true for areas of air and water pollution, waste

treatment, federal assistance to fisheries, conservation of

certain land and wildlife resources, development of recrea-

tional opportunities.and boating safety. This form may hold

es's true in areas such as energy and river and harbor pro-
jec'ts where -a dominant agency, the Nuclear Regulatory Commission

(NRC) and Corps of Engineers, exercise powers on a case by

case or a project by project basis. Even in these latter areas,

a programmatic approach may,emerge through legislative

provisions calling for a nationwide-survey of potential

nuclear power plant sites and the intergration of Corps of

Engineer dredge and fill powers into the Water Pollution Con-

trol Amendments of 1972.

180.

ARTICLE X

B. ENERGY

181.

Federal Energy Reorganization Act
42 U.S.C. 5801, et seq.

Overview:

The Act abolished the Atomic Engergy Commission
(Cf. Sec. 5814(a)), and created two agencies (ERDA, NRC)
between which to divide former AEC powers.

Energy Research and Development Administration (ERDA):

ER EA is to be a comprehensive research and develop-
ment agency. It received by way of transfer not only
the AEC's R&D powers, but also Department of Interior
functions concerning coal and fosile fuel energy research
and National Science Foundation functions concerning
development of solar and geothermal power. Sec. 5814.
(note.: the present Congress has approved large sums for
solar ($248,000,000.00) and geothermal ($53,000,000.00)
research. Congressional-Quarterly, Weekly Report, July 3,
1976, page 1958).

Nuclear Regulatory Commission (NRC):

The NRC received all licensing and regulatory func-
tions of the AEC. Sec. 5841 (f) and (g). The AEC was
authorized under Sec. 2833 of Title 42 to issue licenses for
the ". . . manufacture . . . (or) use . . ." of "utilization
facilities for industrial or commercial purposes." 42 U.S.C.
2133 (a). A "utilization facility" is one which is capable
of using special nuclear material "in such manner as to
affect the health and safety of the public". Sec. 2014 (c).
"Each such license shall be issued for a specified period as
determined by the Commission . . . but not exceeding 40
years." Sec. 2133(c)

This bare grant of authority is spelled out in later
sections of the AEC legislation. AEC control over "utilization
facilities" is divided into two stages. The AEC may grant
an initial construction permit to a person submitting an
application for the construction of a "utilization facility."
Sec. 2235. Upon completion of construction, the AEC may issue
an operating license to the applicant. This permit-license
'distinction gives the AEC a double review. Once at the
beginning and once at the end of the lengthy construction pro-

cess of nuclear power Centers, Under this system, applicants
can get pre-construction indication that their application
is acceptable to the AEC. Cf. Sec. 2235. However, the final
licensing process makes less arduous demands on the applicants
in that hearings are not automatically required at this
licensing stage if they have been held at the construction-
permit stage. Sec. 2239. In fact, hearings appear to be
mandatory at the construction-permit stage. Sec. 2239.
Nevertheless, hearings are required even at the final licensing
stage, if requested "by any person whose interest may be
affected." Sec. 2239.

Licenses may be revoked by the AEC (NRC) when any
"conditions" are "revealed . . . which would warrant the
Commission to refuse to grant a license on an original applica-
tion." Sec. 2236.

Site Survey:

The NRC is authorized to make and to keep updated a
national survey of possible "nuclear energy center sites".
Sec. 5847(a). The survey is to be conducted "in cooperation
with other interested federal, state and local agencies".

183.

Summary of Federal Legislation

2. Federal Energy Administration Act of 1974
(15 USC 761 to 786)

Creation and termination

The Act transferred a number of energy-related authorities from
other agencies (cf. sec. 765) and vested them in a Federal
Energy Administration (FEA), an independent agency in the
Executive branch. (cf. sec. 762.) The FEA was initially scheduled
to terminate on June 30, 1976, but an eighteen month extension
has been approved by House and Senate conferees. (Cf. Congres-
sional Quarterly Weekly Report, Aug. 7, 1976, p. 2111.)

General Function of FEA

In general the FEA was created for "the management of energy
and natural resources policies and programs." (cf. sec. 774(a).)
Through its Office of Policy and Analysis it seeks to integrate
"all program, policy, legislative initiatives to establish a
comprehensive national energy policy." (U.S. Government Manual,
1975-76, p. 476)

Specific Powers

The FEA possesses the following specific powers, among others:

1. Power "to promote stability in energy prices to the consumer"
and to "prevent unreasonable profits within ... the energy
industry." (sec. 764(b)(5))

2. Power to design and implement energy-resources distri-
bution programs. (U.S. Gvmt Manual, 1975-76, p. 477)

3. Power to develop and oversee the implementation of energy
conservation programs. (sec. 765(b)(7))

4. Power to provide the States with technial assistance in
dealing with energy problems. (sec. 779(b)(1))

5. Further authorities of the FEA with respect to power plants
are noted in the summary of the Energy Supply and Environ-
mental Coordination Act of 1974. (15 USC 791ff.)

184

Summary of Federal Agencies

3. THe Federal Power Commission (FPC) and the
licensing of fossil plants.

The basic FPC authority

The chief licensing clause of the Federal Power Act (16 USC
791a to 823) extends FPC licensing powers over the construction
and operation of "project works" for the "development of power".
(sec. 797 (3)). The definition of "project" in sec. 796 sug-
gests that the law's intent was to confine the term, and along with
it the FPC construciton-licensing power, to hydroelectric pro-
jects, and this has indeed been the longstanding interpretation
of the FPC itself.1

The interstate commerce rationale

Another clause of the Act related to the licensing of power plant
construction has been construed liberally, but not so liberally
as to extend FPC licensing powers over fossil plants: section
817 provides that "a dam or other project works" in or along a
non-navigable stream subject to the Federal commerce power
(generally by reason of flowing into a navigable stream) does
require an FPC construction license if the FPC finds that "inter-
state or foreign commerce would be affected by such proposed
construction."

In a 1965 case, the U.S. Supreme Court held that a narrow construc-
tion of the phrase "interests of interstate ... commerce" was
to be rejected:

"Plainly the provision does not require a license only where
'the interests of interstate ... commerce on navigable waters
would be affected.'"2

In other words, effects on interstate commerce in all its aspects,
not merely in its navigation aspects, would require an FPC license
for the construction of a power project in that class of pro-
jects envisioned by section 817 and the Act in general. However,
fossil plants were held by the Court not to fall within this class
of projects, for the original Federal Water Power Act, of which
section 817 was a part, was concerned "particularly ((with)) the
power potential in water."3 Thus, in spite of the broad inter-

1 Cf. Chemehuevi Tribe of Indiana v. FPC, 489 F.2d 1207
(D.C. Cir 1973)

2 FPC v. Union Electric Company, 381 US 90, 14 L Ed 2d 239.
244 (1965)

3 FPC v. Union Electric Company, 14 L Ed 2d 239, 252

185.

The FPC

The interstate commerce rationale (cont.)
pretation given the interstate commerce rationale of section
817, the court could stop short of extending FPC licensing
authority to fossil plants:
"In relation to the central concern of the Act, the distinction
between a hydroelectric project and a steam plant is obvious
and meaningful, although both produce energy for interstate
transmission."4

Indirect Federal Influence
A 1973 case, in the course of rejecting a strong argument that
FPC construction-licensing power should extend to fossil plants,
noted that "there is no comprehensive federal legislation govern-
ing the siting or operations of fossil-fueled power plants."5
Federal influence on the siting and construction of fossil plants
is exercised indirectly through air and water pollution legisla-
tion and through the Rivers and Harbors Act.6

Regional Councils
The FPC is also empowered under section 824a (a) to further
the voluntary
interconnection and coordination of "facilities for
the generation, transmission, and sale of electric energy."
This coordinating power extends to thermal as well as hydroelec-
tric plants, and is put into effect through nine regional Electric
Reliability Councils.7 Though largely dependent on industry co-
operation and chiefly directed towards the availability of an
abundant supply of electricity, this coordinating ro1e of the
FPC may influence siting decisions.

4FPC v. Union Electric Company, 14 L Ed 2d 239, 252
5Chemehuevi Tribe of Indians v. FPC, 489 F.2d 1207,(1233 (D.C.
Cir. 1973)
6Tbid.
7Journey, Power Plant Siting-A Road Map of the Problem,
48 NOTRE DAME L. REV. 273, 283 (1972)

186.

Summary of Federal Legislation

4. Energy Supply and Environmental Coordination Act of 1974
(15 USC 791 to 798; 42 USC 1857c-10; and elsewhere)

The Act seeks to accomplish, whwere feasible, the substitution
of coal for natural gas and petroleum products as the chief
fuel of major fuel burning installations. This substitution
requires the coordination of certain EPA and FEA powers.

Powers of the FEA

1. With respect to power plants the FEA is required, and
with respect to other "major fuel burning installations"
the FEA is authorized, to prohibit the burning of natural gas or
petroleum products as a primary energy source. (15 USC 792(a))
Authority to issue such prohibition-orders was initially set
to expire June 30, 1975, but was extended by Public Law 94-
163 to June 30, 1977. (Cf. 15 USC 792 (f) (1)) Such prohi-
bitions are conditioned on considerations of proper equipment
(15 USC 792 (a)), practicality, coal-availability, and EPA-
certification. (15 USC 792 (b) (1) and 792 (b) (3) (B))
the EPA-certification is discussed below.

2. The FEA is also empowered by the Act, subject to certain
conditions, to require that power plants and other major fuel
burning installations in the early planning process "be de-
signed and constructed so as to be capable of using coal as
((a)) primary energy source." (15 USD 792(c))

3. The FEA is also authorized to allocate coal so as to further
the purposes of the Act, with the proviso that low sulfur coal
be distributed on a priority basis to areas where it is most
required by considerations of public health. (15 USC 792 (b)
and 793(a))

Role of the EPA

The EPA is required by the Act to grant a compliance date ex-
tension, on certain conditions, to any source issued the FEA
prohibition discussed in the preceeding section. (42 USC 1857
c-10(c)(1)(A)) A source receiving such an extension "shall
not, until January 1, 1979, be prohibited, by reason of the
application of any air pollution requiurement, from burning coal
which is available to such purpose." (1857c-10(c)(1))

A source receiving such an extension is nevertheless subject
to certain EPA-issued limitations and requirements, particular
to that source, which are necessary to avoid pollutant concen-
trations exceeding national primary ambient air quality standards.
(1857c-10(d)(2)(B)) Only upon this date does an FEA prohibition-
order to such a source become effective. (15 USC 792 (b)(3)(B))

187

ARTICLE X

C. POLLUTION AND WASTE

188.

Summary of Federal Legislation

Clean Air
Act of 1970: Subchapter I
(42 USC 1857-1857f)
(Pub. Law 91-6049 bee. 319 1970)

Types of Standards
The act-seeks to regulate pollution sources, both stationary
(1857C-6) and mobile (subehapter II) and pollutants themselvest
both those hazardous per se (1857C-7@ and those hiving-_ad4erse
effects at certain levels or under certain conditions (1857c-394).
-All of these objects of control,-except pollutants fiom moving
sources, are dealt with in this summary*
The first step in regulating each of these three objects is
the determination of..standards. Standards pertaining to
pollutants adverse at certain levels"are Drimary and secondagX
ambient air Quality standards . For each DIlUtant on a
growing list (1857c-3(a), 1857c-4(a)(1)), a primary and
seccndary standard is-.promulgated indicating two levels of that
pollutant's presence in the air; beneath the first level
public health is protected a:nd beneath'the second the public
welfare is protected. (185ic-4(b)(1) a6nd (2).
Standards pertaining to .-hazardous pollutants are emission
standards. Such standards involve the direct measurement
of emissions from stationary sources. 1857C-7. (Note that
there may, of course, be emission standards for pollutants
other than those hazardous ptr se.)
Standards pe3@tainin to new stationary sources (buildingst
installations,,*etc-I are standards of Derformance. They
reflect the,best overall emission control which new stationary
sources can achieve by using the best available and cost-
feasible emission reduction systems. 1857c-6(a)

The statets role
in fashionim and implementing standards

The power to promulgate national primary and secondary am-
bient air quality standards is given to the Administrator
of the EPA by 1857C-4(a)(1)(B). And the power to promulgate
-standards of performance and'emission standards for hazar-
dous pollutants is given him by,1857c-6(b)(1)(:B) and
18570-7(b)(1)(B). However, by 1857d-1 a state or political
subdivision thereof is generally empowered to adopt emissions
standards and other pollution control requirements provided
they are not less stringent than Federal standards and limi-,
tations in effect under 1857c-6 (standards of performance
and 1857C-7 (emissions standards for hazardous pollutantsi.

189.

Clean Air Act
of 1970: Subchapter I

The state's role
in fashioning and implementing standards (cont.)

AIR QUALITY STANDARDS: Each state is required to adopt
and submit to the Administrator's review a plan or plans
for the implementation, maintenance, and enforcement of
national primary and secondary ambient air quality standards,
within each "air-quality control region" (1857c-2) in the
state. Note that implementing air quality standards entails
state's setting emission standards. 1857-c-5(a)(2)(B)
EMISSION STANDARDS AN D STANDARDS OF PERFORMANCE: Each state
may develop and submit to the Administrator's review a
procedure for implementing and enforcing emiss ion standards
and standards of performance. 1857c-6(c)( 1) and 1857c-7(a)(1).

Federal Intervention

AIR QUALITY STANDARDS: If a state neglects violations of
its implementation plan in particular cases, the Administra-
tor of the EPA may, after 30 days notice to the state, issue
orders or bring civil suits to remedy the violation. If a
state generally neglects to enforce its implementation
plan, the Administrator may, after 30 days notice to the state,
inaugurate a "period of federally assumed enforcement."
1857c-8(a) (1) and (2).
EMMISSIONS STANDARDS AND STANDARDS OF PERFORMANCE: Whenever
the Administrator learns of violations of these standards,
he may at once issue orders and bring civil suits to remedy
violations (1857c-8(a)(3); 1857c-6(c)(2); 1857c-7(d)(2).

190.

Clean Air Act of 1970:
Subchapter I

Land-Use Implications:
STATE DIEPLUIENTATION PLANS: 1857C-5(a)(2)(B) lists 'land-
use and transportation controls" among those measures by
which states will meet primary and secondary air quality
standards.' Moreover, by 1857C-5(a)(4),, state'plans are're-
quired to show state aulhority "to prevent construction" of
new stationary sources at locations where such a)nstrue"
tion will prevent attainment or maintenance of primary or
secondary air quality standards.
STANDARDS OF PERFOR14ANCE: Violation of such standards by new
stationary sources is declared unlawful by 1857c-6(e)
E14ISSION STANDARDS: New stationary sources may not be con-
structed which in the Administrator's judgment will discharge
hazardous pollutants in violation of emission standards.
1857C-7(c)(1)(A) J

Id"

2. Developments under the Federal Clean Air Act
Aq4A's (Air Quality Maintenance Areas)
and "Indirect Sources"

I. Introduction
During the last four years a much increased concern'with indirect
air pollution relationships and their effect on clean air main-
tenance has emerged in EPA rulemaking and commentary. The event
which in particular triggered this concern was an order.entered
January 31, 1973 by the Court of Appeals for the District of
Columbia in NRDC v. EPA, 475 F. 2d 968. That order, and sub-
sequent EPA response, are described in section II below,
"Chronology." The full. effect of this concern with indirect
impacts on air quality maintenance are still to be seen, but
may well include the application of "new source" review proces-
ses to a wider range of sources and a fuller utilization of
the "land-use and transportation controls" which the Clean
Air Act expressly mentioned as possible strategies for state
.6.
attainment and maintenance of national air standards. (42
USC.1857C-5(a)(2)(B))

II. Chronology
Jan. 31, 1973: per curiam decision of the District of Columbia
Circuit in NRDC v. EPA, 475 F.2d 968. The EPA Administra-
1
tor was ordered to review state implementation plans for
their provisions for the maintenance of air quality stan-
dards be'yond the:deadlinds set for the attainment of such
standards. 475 F.2d 968t 971t 972
June 18, 19'73: The EPA Administrator expanded 40 CPR 51.12
to require state implementation plans to identify areas
"which, due to current-air quality and/or Pro .ected growth
rate, may have the potential for exceeding any national
standard within thi subsequent 10-year period." (40 CFR
51.12(e) as set forth at 38 Fed. Reg. 15834 ff.; emphasis
added.

June 2. 1975: Fin&ing that Indiana had not made the area
identification required by 40 CFR 51.12(e), the EPA Admini-
strator designated air quality maintenance areas in the
state- (40 Fed. Reg. 23753; 40 CFR 52;792) Porter and Lake
counties were.designated as the Indiana portion of the Il-
lin6is-Indiana-Wisconsin Interstate AQ14A.-
A
MaY 3. 1976:- the EPA published extensive regulations gove*rn-
ing state analysis of AQKA's in terms of projected emis-
sion and concentration of pollutants, and state prepara-
tion of AGJ4A plans on the basis of such analysis. (41 Fed.
Reg- 18382 ff.; 40 CFR 51-41 to 51.63)

CfO s.ummary of Clean Air Act for description of @.tate im-
plementation plans. Ap

192.

AQMA's and Indirect Sources

II. Chronology (cont.)
May 10, 1976: Bethlehem Steel, Nipsco, and others had b rought
a suit against the EPA challenging the AQMA regulations of
June 18, 1973 (cf. above) as unconstitutional and unauthorized
by the Clean Air Act, and challenging on substantive grounds
EPA's June 2, 1975 designation of Porter, Floyd, Marion and
2
Vandergurg Counties in Indiana as AQMA's. The court dis-
missed the challenge on the grounds that the matter in ques-
tion was not yet ripe for review because the State of Indiana
was still involved in an AQMA-study phase which has not yet
resulted in the actual addition of any AQMA provisions to
Indiana's implementation plan.

III. The Maintenace Approach

-The Problem
Construction of new facilities or structures may have a two-
fold impact on air quality: first, the facilities themselves
may directly emit pollutants into the air, and, secondly, they
may indirectly stimulate an increase in the emission of pol-
lutants from associated sources. This indirect pollution in-
crease may result from the additional traffic drawn to the area
of a new shipping center or sports complex (cf. EPA comments at
38 Fed, Reg. 9599, col. 2, 3rd full paragraph), from the higher
load requirements placed on power and treatment plants by the
expansion of an industrial plant (cf. EPA comments at 38 Fed.
Reg. 15834, col. 3), or from "general urban and commercial
development" associated with the construction of a major facility.
(Cf. EPA comments at 38 Fed. Reg 6279, col. 2.) To meet this
problem of indirect pollution impacts, EPA regulations have
developed two methods

-New source review
Although pre-construction review of new sources was provided for
from the beginning in state implementation plan requirements
under section 110 of the Clean Air Act (cf. 42 USC 1857c-5
(a)(2)(D)), EPA regulations of June 18, 1973 expanded this
review along two lines.
First, the review process was required to weigh the indirect
pollution effects "resulting from mobile source activities"
associated with the proposed new source. (40 CFR 51.18 (a))
Secondly, review was extended to the so-called "indirect
sources", including sports complexes, airports, highways and
roads, retail, commercial and industrial facilities. (40 CFR
52. 22) EPA regulations would have sub j e c ted proposed "indirect

2Bethlehem Steel v. EPA, 8 ERC 2114, 2115, 2116 (7th
Cir, May 10, 1976)

193.

AQMA's and Indirect Sources

III. The Maintenance Approach (cont.)

sources" to severe scrutiny with respect to their generation
of motor vehicle traffic and would have prohibited construc-
tion where such traffic would lead to violation of national
standards for carbon monoxide. (40 CFR 52. 22 (b) (4)) How-
ever, the emplementation of these regulations, and of other
regulations for the management of parking supply has been
subject to delays.3 Clarification of the matter apparently
awaits final action on Clean Air Act Amendments now pending
in Congress.

-AQMA's and land-use implications

Regulations proposed by the EPA on April 18, 1973 would have
placed the burden of air quality maintenance solely on the ex-
panded new source review process discussed above. (Cf. 38 Fed.
Reg. 9600f. 4/18/73) But in reaction to comments received
concerning these proposals, the regulations actually promul-
gated by the EPA on June 18, 1973 made a vital addition to main-
tenance procedures, supplementing the source by source analysis
of 40 CFR 50.18 with an analysis of the air quality impact result-
ing from generalized growth (cf. 38 Fed. Reg. 15834, col. 2):
the identification of AQMA's and the preparation of AQMA plans
was required. (Cf. 40 CFR 51. 12 (e) to (g) as set forth at
38 Fed. Reg. 15836.)4

The heart of the planning requirement lies in this sentence:
"The AQMA plan shall include, as necessary, control stragegy
revisions and/or other measures to ensure that emissions
associated with projected growth and development will be
compatible with maintenance of natioanl standards." (40 CFR
51.40 as set forth at 41 Fed. Reg. 18388; emphasis added)5

The force of this sentence lies in the fact that "other measures"
may necessarily include land-use controls for some AQMA's.
Admittedly, the EPA Administrator has made it clear that the
regulations do not impose Federal land-use controls and has
entertained the hypothesis of an AQMA plan containing no land-
use measures:

3Cf. Energy Supply and Environmental Coordinatiion Act
of 1974, 42 USC 1857c-5 (c)(2)(C), and 40 Fed. Reg. 28064.

4Amendments of May 3, 1976 have moved this planning
element to 40 CFR 51. 40 ff. and require a plan for only those
AQMA's where the EPA Administrator finds such a plan necessary.
(41 Fed. Reg. 18388)

5The period for which the plan was to ensure such compati-
bility was 10 years in the 51. 12 (g) version of the planning
requirement (40 CFR 51. 12 (g)), but in the current amendment
such period is left to the determination of the EPA adminis-
trator. (40 CFR 51.52) Note, though, that the period to be covered
by the analysis preparatory to the plan is 20 years. (40 CFR 51.
42)

194.

AQMA's and Indirect Sources

III. The Maintenance Approach (cont.)

"If a state submits a plan which insures maintenance of the
standards solely through emission limitations and contains
no land use or transportation measures whatever, EPA will
approve it." (41 Fed. Reg. 18382, col. 3, 5/3/76)
But this hypothesis may not be a likely one for AQMA's subject
to heavy growth pressures.

Local Responsibility
States whose implementation plans must be revised to include
an AQMA plan, may assign the responsibility for developing
the AQMA plan to agencies other than pollution control agencies.
(41 Fed. Reg. 18384,col. 1, 5/3/76) "Elected officials of
affected local governments and regional planning agencies may
petition the Governor to obtain responsibilities in the develop-
ment of AQMA plans." (40 CFR 51.58 (a)(2) as set. forth at
41 Fed. Reg. 18390)
Moreover, the expanded new source review process under 51.18
may also be carried on by agencies other than air pollution
control agencies. (40 CFR 51.18 (e))

195.

3. Developments under the Federal Clean Air Act:
Non-Deterioration

Court Decision
In 1972 environmental groups challenged EPA regulations by
which state implementation plans could allow the quality of
air, presently purer than levels fixed by the national primary
and secondary standards, to be degraded down to a point at
which it would just satisfy nationa1 secondary standards. Pre-
senting.a brief legislative history, the court found that the
degradation or deterioration of these "clean air areas" was
contrary to the Clean Air Act, and that accordingly, the regu-
lation in question was invalid.1
The de cision was affirmed by the Supreme Court on June 11,
1973.2 The Court was equally divided, one judge taking no part
in the decision. No opinion accompanied the deci sion. Eighteen
states filed or joined in briefs of amici curiae urging affir-
ance; two states filed briefs of amici curiae urging reversal.
Indiana was in neither group.

EPA regulations: classification of areas
On December 5, 1974,in response to the case just noted, the
EPA issued regulations by which the clean air areas" in each
state (viz. those areas with air quality purer than national
standards) should be designated as falling in Class I, II, or
III. (39 Fed. Reg. 42510; 40 CFR 52. 21 (c)) In a Class I area
only a very small increment in pollutant concentrations would
be permitted. Increments from two to eight times larger would
be allowed in Class II areas. And in Class III areas pollutant
concentrations would be permitted to reach national ambient
air quality standards. (40 CPR 52. 21 (c) (2))3

Land use implications
All "clean air areas" were initially to be ranked as Class II.
(40 CFR 52. 51 (c)(3)(1)) States were invited to propo se

redesignations subject to EPA approval. (52.51 (c) (3) (ii))
EPA commentary indicates that such redesignations
to relect each state's design for the location of growth and
development within its boundary. This intent is evidenced, for

1Sierra Club et al. v. Ruckelshaus,344 F. Supp 253, 256
(D.C.D.C. 1972)
2Fri v. Sierra Club et al., 412 US 541, 37 L Ed 140, 93
S.Ct.2770 (1973)
3The pollutants for which "clean air areas"are to be deter-
mined and Class I, II, or III designation are to be made are
sulfur dioxide and particulate matter. Different measurement

techniques are appropriate to other pollutants such as nitrogen
oxides, hydrocarbons and photochemical oxidants. And these
different techniques are claimed to be unworkable in clean
air areas" where "measured air quality data" is unavailable
due to the minimal amount of monitoring occurring in such areas.
(39 Fed. Reg. 42511, col 1)

196.

non-deterioration
Land use implications (cont.)
instance, in the following remark:
"the Administrator continues to feel that a Class II incre-
ment should be compatible with moderate, well controlled
development in a nation-wide context, and that large-scale
development should be permitted only in conjunction with a
conscious decision to redesignate the area as Class III."
(Commentary accompaning regulations of December 5, 1974;
39 Fed. Reg. 42510, col. 3)

Standards for new sources
The regulations also provide that for all areas(rather than just
for "clean air areas") in each state 18 categories of new or
modified sources will be subject to an EPA-specified emission
limitation for sulfur dioxide and particulate matter,
reflecting
"best available" control technology. (40 CFR 51.21 (d)(2)(ii))
This represents an increase in stringency over the Clean Air
Act, which required new sources to meet emission limitations
reflecting "the best system of emission reduction which (taking
into account the cost of achieving such reduction) the Admini-
strator determines has been adequately demonstrated." (42 USC
1857c-6 (a) (1))

Present Status
Court challenges have delayed the implementation of the regu-
lations. Moreover, the present Congress is debating the "non-
deterioration" issue as part of its likely revision of the Clean.

Air Act.4

4Cf. the 6th Annual Report of the Council on Environmental
Quality, p. 52; and discussion of Senate Bill 3219 (S 3219) at
Congressional Quarterly Weekly, 7/31/76, p. 2101.

197.

Summary of Fede@al Legislaiion
4. Federal Water Pollution
Control Act Amendments ofil972
(33 USC 1251-1376)

Note: Throughout this summaxy "Administrator" refers to the Adidnistrator
of the Federal Environmental Protection Agency (EPA)
Ip
Status: .The 1972 amendments extensively amendedg, reorganized, and expanded
the Water Pollution Control Aett originally passed in 1948 and amended about
a dozen times since then.

Standards and T,"es of Regulations:
WATER qUALITY STANDARDS prescribe, in generai, the water purity
levels necessary to protect the public health and welfare.
Apparently, such standards may va--7 from water to water,
depending upon the I'designated uses" of the water javolved.
(see. 1313 (c) (2)) *Prior to the 1972 amendments, water
quality staM@_-rds were used quite directly, as their name im.@.
plies, 10.o datermine when water quality had fallen below an
acceptable level- 33 USC sec.' 1160 (0) (5) Once this deter-
mination. was bade, a difficult causal question had to be
faced: how establish conclusively thaf certain sources
of discharges are in fact respnnsiblp for the-water quality
decline? Water quality standards are still required by the
Act.('Cf" see. 1313- in general),, but th.9y are to be used in
conjunction with "effluent limitaticns.11
Auk EFFLUENT LMTATIONS are a new sort of standard adopted by the
1972 amendments. These limitations are basically technology-
Y installation requirements. The Act requires d 'ischarge
sources to install the "best'prai,-ticabld'control technology'
by 1977 and the "best available" control-technology by
1983. See. 1311 (b). Publicly owned treatment plants are
held to less rigorous effluent limitations: they are not re-
quired to meet the'"best practicable" standard until 1983.
1311 (b) (2) (B) and 1281 (g) (2) (A).
STANDARDS OF PERFOR14ANCE apply to new sources, i.e. new
buildings, facilities, etc. from which there may be the dis-
charge of pollutants. sec. 1316 (b) (1) (B) Like effluent
limitations, standards of performance look directly to
pollution reductions possible through technological alterna-
tives. But standards of performance are more demanding:
they reflect pollution-reduction achievable through the
"best available" technolo5y (the criterion used in the
1983 effluent limitations , and, since they apply to new
sourr-es, they are not modified and made more lenient, as
effluent limitations may be, to reflect age of existing
equipment or engineering problems involved with installation
of control-technology. (cf. 1316(b)(1)(13)t 1314 (b)(1)(B)9.1
and 1314 (b)(2)(B).)

Federal Water Pollution
Control Act Amendments of 1972

Interaction of water quality standards and effluent limitations
Where a connection between water quality decline and specific
sou:rces can be identifieds water quality standards are to be
upheld., even if they require more stringent measures than are
required by applicable effluentl:Lim-i-tations. Cf. 1311 (b)(1)(C).

The state's role
in fashioning and implementing
standards

EFFLUE14T L114ITATIONS AND STANDARDS OF PEIUDRIIIANCE:
Effluent limitations may be issued by the state, but they must
satisfy the stringency requirements of the all important
"guidelines" issued by the EPA. 1313(e)(3)(A) and 1314 (b)..
.,Standards of performance are promulgated by the Administra-
tor.
Each state is invited to submit forEPA appr@vai a program
under which it will issue discharge-pe3mits insuxing com-
plfance with effluent limitations and standards of perfor-
mance. 1342 (b) and 1316(c). But where a state chooses not'-
to submit such a program, or fails in"the administration of
such a program (1342 (c) (3)), provision is made for direct
permit-issuanbe by the EPA administrator. (1342 (a)).
Moreover, state-issued permits are subject to review and
Tiveto" by the Administrator. 1342 (d)

WATER QUALITY STANDARDS:
The preparation and periodic revision of water-quality stan-
dards is the duty of the'state. 1313 (a)(3)(A), 1313 (c).
Where such standards, as applicable to'navigable waters,
are found to be inadequate, suitable standards are.to be
prepared by the-Administrator. 1313 (c)(4)
Water quality standards appear to be implemented indirectly,
through the enforcemert of other standards, for example,
the general effluent limitations of 1311 (b)(1)(A) and 1311.
(b)(2)(A), ar. well as the "more stringent limitations"
provided for in 1311 (b)(1)(C). These two classes of limi-
tations are implemented through the permit system described
in the preceding section of this summary. Another sort of
standaxd, "maximum daily loads". also contributes to the in-
direct implementation of water qualitystandards: each state
is required to identify waters vIE re water quality standards
will not be met by the mere implementation of effluent limi-
tations. 1313 (d)(1)(A). For such waters tle state is to
determine the maximum daily load of certain pollutants
tha-t is able to be sustained without exceeding water quality
standards.- Tmplementation of these ma irmim load standards is.
ap arentl ntrusted to the state by 1313 (d)(2) and 1313
y e
(350 (C).

1199.

Federal Water Pollution
Control Act Amendments of 1972

Federal Control
Generally, the extent of such control has been indicated
in the immediately preceding section Howeve; one section
of the Act, see. 1344 (generally referred to as sec.' 404
from its place in the Public Law 92-500) has raised a
large question of federal control. See. 1344 authorizes
the Secretary of the Army, acting through the Chief of Engin-
eers, to issue permits "for the discharge of dredged or fill
materials into the navigable waters at specified disposal
sites." I will @_iqc.Vss.the relation of this "404" power
t6 state control in a sepaxate memo,, "Respective powers of
the State and COE.n

Land Use Implications
The full extent of FWPCA control over land use is manifest
in see. 1342 (b)(1)(C)(iii):'. even after issuance of a dis-
charge permit, a source may be required.,due to changed
c6nditi6ns, to terminate such discharge*,' If the state does
not have authority to effect such tej@minations, .then the
permit system is not to be administered by the State but
by the Administrator of the EPA. (1342 (b))

200._p

Summary of Federal Iegislation

5. Areawide Waste Treatment
Management Plans
33 USC 1281-88

Status: These sections constitute sub"chapter II of the
FWCPA Amendments of 1972.
Areawide Plans: Section 1288 (a)(2) (section '-@08" in the
Public Law) requires the Governor of each state to identify
the areas within the st;@te which have "substantial water quality
*control problems*'I For each such area the governor is to
appoint a single plannihg org-anization which is responsible for
'the preparation of an areawide waste treatment management plang
including:
a twenty year schedule of treatment works required in the
area to meet municipal and industrial 11 Uid (cf. 1292-
(2)(A)) waste treatment needs. 1268(b)(2RB)
Such plans are subject to,the approval of the Administrator
of the ER& -,1288 b (3)
tory powers und6
State and local regula r the plan:
The plan must establish a program to "regulate the location,
modification, and construction of any facilities within such
area which may result in axiy discharge in such area." 1288
(b)(2)(C)(ii) And the plan must provide procedures, inclilding
land use requirements, to control agricultural, mine-related,
and construction-related "runoffs" contributing to water pol-
lution. i288(b)(2)(F-I)
The Plan and Federal Money
The EPA administrator is authoTized to make grants to state,,,
municipality, or interstate agencies for the construction
of publicly owned waste treatment plants. 1281(g)(1)
However, in areas for which a plan is in effect, no such grants
may be made for,any projects which are not in conformity with-.,.
such plan. 1288 d.

pol.

Summaxy of Federal Legislation

Solid Waste Disposal
42 USC 3251-3259
Planning Grants: Authorizes the secretaxy of' Mi to make
grants to State, interstatey municipal and intermunicipal
agencies for the development of areawide (3254a(b)(2))
plans for disposal of solid waste- 3254a(a)(2)
Construction Grants: The Secretary of HEW may make grants
to help finance (D nstruction of solid waste disposal
facilities, if:
A. a solid waste plan has been adopted and the proposed
facilities are consistent therewith; and
B. the project advance's the state of the recycling
and disposal art. 3254b (0)

202.-

Summary of Federal Legislation
7- Spills of Oil and other Hazardous Substances
(33 USC 13219 as contained in the FWCPA)

This lengthy section of the Federal Water Pollution Control
Act establishes several deterrence and Drevention methods with a
I view to minimizing both the spillage of.oil and hazardous sub-
stances and the damage resulting from spills.which do occur.

Fines and other deterrences

Owners and operators of vesselss on-shore.--.fa6ilities, and off-
shore facilities from which a non-recoverable substance, hazardous
in any quantity, is discharged may be liable to large monetary
penalties, running as high as 55,000 1000 for vessels and $300,000
for on-shore and off-shore facilities. (sec. 1321 (b)(2)(B ) -
I-rhen oil and other hazardous substances of a recoverable nature
are discharged,* the monetary penalty is small (see. 1321 (b)(6))t
but the owner or operator may be liable for the costs of removing
the discharged substanceg up.-to a ceiling of $14,000,000 in the
case of vessels and $8,000,000 in the case of,on-shore and off-
shore facilities.
The Act also-provide*s for the establishment of a "National Con-
tingency Plan" to hold equipment and personnel in readiness for
the containment or removal of discharged oil and hazardous sub-
stances. (sec. 1321 (0) (This plan is presently set forth at
40 CFR 1510-) -

Preven-jive measures
The Act empowers the President to issue regulations requiring
procedures and equipment directed towards the containment and
elimination of discharges. (see. 1321 (j)(1)) Civil fines may
be imposed for failure to comply with such regulations. (see,
1321 (j)(2)) (rhese'regulations have been issued for vessels by
the Coast Guard (33 CFR 1551 and for on-shore and off-shore facili-
ties by the EPA.(40 CFR 112))

203.

Summary of State Agencies
8. Environmental Management Board (EMB)
Stream Pollution Control, Board (SPCB)
Air Pollution Control Board (APCB)

Interrelation of the three boards
A great deal of the authority to control air and wa ter.
pollution in Indiana has been granted to the three
boards which are the subject of this summary. The
SPCB was created as an executive board by Act of 1943.
(13-1-3-1) The APCB was created as an administrative
board by Act of 1961. (13-1-1-3) The EMB was created
as a state environmental quality board by Act of 1972.
(13-7-2-1) Although the EMB is given a broad mandate to
"evolve standards . . . to preserve, protect, and enhance
the quality of the environment" (13-7-3-1), powers
entrusted to the SP CB and APCB prior to the EMB-enabling
legislation are to continue to be exercised by such
agencies.(13-7-6-7) However, the EMB is empowered to
coordinate the activities of the SPCB And APCB, and to
review regulations adopted by the SPCB And APCB before
such regulations can become effective. (13-7-2-9, 13-7-
7-1(b))

Powers of the Boards

For purposes of this summary I have focused on powers of
requiring and terminating permits, and powers of enforcing
standards. Other powers, such as monitoring discharges
or entering on private property for inspections, are
not treated.

SPCB: A. Discharge permits
"No person shall discharge pollutants . . . into . . .
the waters of the state . . . without a valid permit
issued by the SPCB." (Indiana Administrative Rules and
Regu lations, 35-5237-1(a))
B. Construction permits
Certain projects cannot be undertaken without a SPCB con-
struction permit: water pollution control facilities (Rules,
35-5236-1), sanitary land fill facilities (Rules, 35-
5235-55), and, apparently, solid waste processing plants
(Rules, 35-5235-46).
C. Termination of permits
When changes in conditions require a reduction or elimi-
nation of previously permitted discharges, the SPCB may
react by modifying or suspending permits. (Rules 35-
5237-21 (b)(3))
D. Orders and Actions
The SPCB may issue cease-and-abate orders (13-1-3-9);
after a hearing, it may order polluters to acquire equip-
ment for the disposal and treatment of pollutants (13-1-
3-5), and it may bring civil actions for the enforcement
of its orders (13-1-3-1l).

204.

EM
SPCB

E# Condemnation
Persons ordered by the SPCB to treat or cease discharging
industrial and sanitary wastes are empowereds when it is
necessary, to condemn lands if no dwelling house is located
thereon.

APCB: A. Construction permits
No person shall construct or modify a stationary source
without APCB approval, which is given only if the APcB
is satisfied that state air quality regulations and Federal
standards will not be violated by the source. (Rules, 35-
5235-22(a) and (b))
B.-Operation permits
Operation of a stationary source requires an APCB permits-
to be renewed at least every four years, and granted only
if the APCB is satisfied.that state air quality zegul@tions
and Federal standards will not be violated by the source.
(Rules, 35-5236-23(e) and (f))
C. Termination of permits
When cha:nges in condition require a reduction or elimina-
tion of previously permitted operations, the APCB may react
by modifying or revoking permits. (Rules, 35-5235-25;
13-7-10-5)
D. Orders and Actions
The APCB may enter whatever orders are necessary to abate
a c,ondition of air pollution (13-1-1-4)s and *b3i ng ap-
Mrlate action to enforce its final orders (13-1-1-4
E. Note on dxtensiveness of regulations
"sources of minor significance" are not r equired to get
APCB permits. Examples:
1. Fuel-biirning equipment in apartment buildings with
four or less units, provided certain fuel and heat
input conditions are also met. (Rules, 35-5235-24(a)(2))
2. Equ@pment used by farmers to_@dr
EMB: Note: Po'wers'listed in IC 13-7. the EMB-enabling
legislation, are usually granted to "the EMB or an_ap-
propriate agencyt" namely, the SPCB or APCB.. Therefores,
powers granted under this verbal formulation in 13-7 may
already have been partly or wholly in existence, as vested
in the APCB or SPCB.
A. Construction and operation permits
1. Generally: no person shall aDnstruct or operates
"without prior approval of the Board or an appropri-
ate agency ((Viz. SPC3 or APCB)), any equipment or
facility which may cause . . . pollutiorP (13-7-
4-1 M).
2. In particular: 124B permits are required for the con-
struction of public water supply facilities (Rule
35-5235-32)s and for the construction and operation
of nuclear powered generating facilities. (13-7-9-1)-

205..

SPCB
APCB_

IC 13-7-5-5 empowers "the board or agency" to prescribe
procedures for the administration of a system of permits
for "the discharge of any contaminant." (underscoring mine)
IC 13-7-10-3 empowers "the board or an-appropriate agency"
to provide by regulation for the issuance of permits for
"the discharge of any contaminants into state waters."
(underscoring mine) Question: does 13-7-5-5 empower-the
E4B or AIICB to require permits for the discharge of con-
taminants into'the air? A discharge permit-system seems to
admit of stricter control over permitees than does an opera-
tion permit system, inasmuch as a single building discharging
contaminants at se-@reral points might need only one operating
permit but several discharge permits. (35-5237-.4(f))
C. Orders and Actions
The enabling statutel, for the U143 (13-7) allows the board
or an agency (viz., the S'PCB or APCB) to issue cease and
desist orders, and corrective-action,orders. The latter
orders may require the posting of a"Performance bond,
(1 3-7-'Ll -5)
D. Suspension of 'permits:
Any permit issued under the authority of 13-7 may be re-
voked on the grounds of a change in conditions requiring
Alm that a discharge be eliminateds or for any other cause
"which establishes in the judgment of the board or agency
that continuance of the permit is not consistent with
the purposes'of (03-M." (13-7-10-5)

Role of tocal Governments
APCB:. Both the enabling legislation (13-1) and the APCB
regulations leave in force ordinances of local governmental
units which eitablish.air pollution requirements of a
stringency equal to or greater than the requirements adopted
by the APCB. ..Nor is any'limitation placed on the power of..
local governmental units to enact such requirements in the
future. (13-1-1-10) County ordinances, however, may not
include those'municipalities which have their own ordinances.
(13-1-1-10(b)) And within an air quality basin, cities,
towns, or counties may join in a common admLinistration of
their air pollution programs. (13-1-1-10(c))
Moreover, according to an APCB regulation, "dutiesn
otherwise entrusted to the APCB may be delegated to,local-
governmental units which have.air pollution ordinances.
(Rules, 35-5235-27) Whether the terin "duties" includes
the APCBIs permit issuance functions or only-its abate-
ment functions is not clear from the regulation.

.1206.

EMB
SPCB
APCB
Role of Local Governments (cont.)
EMB: The EMB is to encourage local governmental units to
develop standards for air and water pollution meeting mini-
mum state standards..(13-7-15-2) Moreover, where local
governmental units have not developed plans for certain
environmentally important facilities (water supply, waste
water treatment, solid waste disposal), the EMB, after a
hearing, may order the formation of regional water, sewage,
air or solid waste districts. (13-7-15-2)
SPCB: The SPCB system of permits for discharges into water,
once approved by the Federal EPA as "official" for pur-
poses of the "national pollutant discharge elimination
system" (NPDES), apparently must be state-adminstered and
thus appears not to be delegable to local governmental

units. Cf. FWCPA 33 USC 1342(b),where one finds the phrase
"the ((permit)) system which it ((the state)) propo ses
to establish and administer under state law." (Underscor-
ing mine) And note that whereas permits for pollution con-
trol facilities (Rules, 35-5236-1(a)) and for sanitary
landfill facilities ( Rules, 35-5235-55), as well as pre-
NPDES discharge permits (Rules, 35-5237-1), might be
issued "by the agency ((SPCB)) or its designated
agent" (underscoring mine), the formulation of the NPDES
permit system mentions only the "agency" as a permit-
issuer and makes no mention of any "designated agent."
(Cf., for example, Rules, 35-5237-4(a).)

2 0 7.

EMB
SPCB
APCB

State Response to Federal Pollution Legislation

APCB: The APCB is the state air pollution agency for pur-
poses ofthe Federal Clean Air Act. (13-7-2-10)
APCB Regulations explicitly adopt certain Federally estab-
lished standards:
PERFORMANCE STANDARDS: Particulate-emissions from
the combustion of fuel by new stationary sources must satisfy
EPA standards. (Rules, 35-4604-4(sec. 3)) And a 1974
amendment to Rules, 35-4604-3(sec. 5) requires more com-
prehensively that all new sources (and not merely those
new sources emitting pollutants directly from fuel-com-
bustion) comply with Federal "performance standards,"
where applicable.(These standards are in 40 CFR part 60.)
AIR QUALITY AND EMISSION STANDARDS: In regulations
35-4604-13 to -17, the APCB has set air quality standards
(for certain pollutants) and emission standards necessary
for achievement of the air quality standards. The relation
of these state-established air quality standards to the
air quality standards to be established by the Federal
EPA (cf. 42 USC 1857c-4(a)(1)(B)) is not explicitized,
but it appears from the opening paragraph of Rules,
35-4604-13 that the state standards are at least as string-
ent as the Federal. That paragraph indicates that state
emission standards for sulfur dioxide are set at the level
necessary to secure compliance with the "federal ambient
air quality standards" for sulfur dioxide. The same
compliance is not explicitly noted with respect to emission
standards established for other pollutants, but perhaps
an intention of such compliance may be presumed inasmuch
as these other standards were established in regulations
adopted approximately one month after Rules, 35-4604-13,
and inasmuch as these later regulations lacked the intro-
ductory, didactic paragraph which allowed Rules, 35-
4604-13 to treat of the relation between state emission
standards and Federal air quality standards.
SPCB: The SPCB is the state water pollution agency for
purposes of the FWPCA.

(13-7-2-10) The SPCB's compliance
with the directives of the FWCPA amendments of 1972 is
manifest in SPCB regulations. The state-administered
permit system described at Rules, 35-5237-2 is explicitly
set forth as being established in pursuance of th e
National Pollutant Discharge Elimination System (NPDES)
called for by sec. 402 of the FWCPA (33 USC 1342).
Moreover, state-issued NPDES permits must contain conditions
to insure compliance with the effluent limitations called
for by 33 USC 1311 and 1312 , with standards of performance
established by the Administrator of the EPA (33 U SC 1316),
and with other standards and limitations provided for
in the FWCPA.(Cf. Rules, 35-5237-16.)

208.

EMB
SPCB
APCB
Inter-agency relations (state and Federal)
WPCB: Under the NPDES permit system, the WPCB is re-
quired to prepare a public notice of each completed permit
and give it to Federal and state fish and wildlife agen-
cies (Rules, 35-5237-7(a)(4)), as well as to "public health
agencies" which may adminster certain requirements per-
taining to the proposed discharge. (Rules, 35-5237-10(e))
Moreover, if the proposed discharge will take place into
navigable water, notice must also be given to the Dis-
trict engineer of the Army Corps of Engineers. (Rules,
35-5237-10(c))

209.

9. Illinois - Indiana Air Pollutio n Control Compact
Summary of Interstate Agreements
I.C. 13-5-7-1

By an Act of 1965 Indiana ratified a compact made with
Illinois whereby an interstate air pollution control
commission was established and empowered to identify inter-
state air pollution pXoblems, particularly problems involving
the origin of pollution in one state with consequent harm
to health"or welfare in the other state. The compact was
empowered to recommend corrective measures to state and local
Air Pollution Control agencies, and, in the event that six
months should pass without sufficient corrective action
occurring, to issue orders upon the person, corporation
or municipality causing or contributing to the pollution.
For the enforcement of such an order, the Commission was
authorized to bring an action in "any court of competent
jurisdiction."

210.

ARTICLE X

D. RECREATION AND CONSERVATION

211.

Summary of Federal Legislation

1. Fish and Wildlife Act of 1956 (as amended)
16 USC 742a to d, 742 e to j

The Act establishes a fisheries loan fund, out of which loans
may be made on certain conditions for financing the purchase,
construction, etc. of commercial fishing vessels or gear.
(sec. 742 (a), (c)) The fund is presently scheduled to cease
to exist on June 30, 1980. (742 c) It is administered by the
National Marine Fisheries Service in the Department of Commerce.
(Cf. 50 CFR 250)

212.

Summary of Federal Legislation

2. State Commercial Fisheries
Research and Development Projects
16 USC 779-779f
Summary: States are invited to draft plans for projects
developing fishery resources and submit such plans to the
Secretary of the Interior. Projects approved by the Sec-
retary are eligible for up to 75% federal funding (779d
(a) and (b)). Work needed to complete such projects is to be
performed under the "direct supervision" of "the State agency

through which the plan was submitted. 779e

213.

Summary of Federal Legislation

3. Anadromous and
Great Lakes Fisheries
16 USC 757a-f

The Secretary of the Interior is authorized to fund up to
50% of state projects intended to conserve and develop
"the fish in the Great Lakes that ascend streams to
spawn." 757a(a). The Act provides an incentive to inter-
state cooperation, by authorizing Federal funding up
to 60% for fish-development programs into which states
having a common interest enter jointly. 757a(c
In accordance with any such funding agreements, the
Secretary is authorized to make recommendations re-
garding the management of waters involved in such
agreements, and to acquire lands by purchase, lease,
or exchange. 757b(5) and(6)

214.

Summary of Federal Legislation
4. Fish Restoration and Management Projects
16 USC 777 to 777k (1950)

Types of Projects
The Act authorizes the Secretary of the Interip:v--to financially
assist the states in the establishment and maintenance (sec. 7779)
of fish restoration and management projects, including restock-
ing programs (bi@c- 777a-(c)) and the improvement of areas of land
and water for the breeding, hatching, and feeding of fish. (7777a
(d)) The land-acquisition(through purchase, lease, or condem-
nation) necessary-for these "improvements" may.also be assisted
financially under this act. (777a (d))
7'
The Act seems directed towards the aid of sport fishing. Section
777a appears to limit eligible projects to"those involving 11species
of fish which have material value in connection-with sport oi
recreation." And the moneys appropriated for purposes of the Act
are to com6-from. taxes on the rods reels, and ,other equipment
of the sport fisherman. (see. 777b5 However, the Act also aD-
pears to establish one procedure under which other-than-spor-t
fisheries may be assisted. (Cf.-the following section-of this
summary.)
State action necessaa to gain financial assistance
To receive aic@ the state may follow one of two methods. It may
submit to the Secretary of the Interior a detailed statement of
a particular proposed restoration project. Or it nay submit a
."comprehensive fish and wildlife resource management" plan directed
towards fostering these resources for the economic and recreational
enrichment'of the people. (777e (a)(1) and-T271-If a state sub-
mits such a plan, "then the term tproject' may be defined for the.
purpose of this chapter as a fishery program, all other definitions
notwithstanding." (sec. 7770 (b)) This special redefinition of
"project"-suggests that funding under the Act might be available
for projects integrated into a "comprehensive plan" which were.
concerned with commercial as well as spott fisheries.

Z15.

Summary of Federal Lesislat"ion
5* Great Lakes Fisheries.Act of 1956.
16 USC 931 to 939C

Laarey control
The Act serves to implement the Convention on Great Lakes Fisheries.-
pigned by the United States and Canada on September 10, 1954, and
directed towards the control of lam-preyes in the Great Lakes. The
Ponvention provided for a Great takes Fishery Commission, the U.S.
members of which are'authorized by this Act to:
A. acquire real property by "purchase .-condemnation, or
otherwise" (see. 935 (a));
B. constriict-and operate lamprey control projects in compli-
ance with the Convention (see. 935 (b)).

Role of States
-No grants-in-aid-to the States are authorized'by the Act, but
project construction and operation may be contracted out to
States by the U.S. members-of the Commission. (sec. 935 (c)).
Moreover, notice of proposed projects must be sent to the Governor
of each Great Lake State for his "consideration." (see. 939)

Current status
As of January 1. 1976 the Convention was still in.force.1

lTreaties in Force: A List of Treatids and other International
Agreements of the U.S. in Force on J4nuary 1. 19769 Dept. of State
Publication 8847.

216.

Summary of Federal Legislation
6. Fish and Wildlife Coordination Act
16 USC 661 to 666c

Consultation with USFWS
The Act requires that the Department of Interior (through the
Fish and Wildlife Service) and the state agencies for fish and
wildlife be consulted with respect to projects impounding, di-
verting, or otherwise modifying the waters of "any stream or other
body of water," when such projects are undertaken or licensed by
Federal agencies. (sec. 662) The comments made by the Interior
Department and the state fish-wildlife agency regarding the wild-
life conservation and development aspects of such projects are
to be integrated into the engineering reports submitted to Congress
or to any Federal agency with power to authorize the project.
(662 (b)

Project modifications
Several provisions of the Act bear on the implementation of the
fish and wildlife recommendations made through the process de-
scribed above:
A. Federal agencies are authorized to modify water-control
projects to include measures for wildlife conservation.
Allocations of costs between the substantive project and
the attached conservation project differ depending on
whether the conservation measure is directed chiefly to-
wards mitigation of damage to wildlife or towards actual
IQ% wildlife improvement. (662 (c))
B. Section 663 (a) requires that in connection with water
control projects undertaken by any department or agency of
the U.S., provisions shall be made for the use of such pro-
jects and lands and waters associated therewith for the con-
servation and management of wildlife.
C. Section 663 (b) authorizes the Federal agency constructing
the water-control project to acquire, in connection with
the projec, properties for the specific purpose of wild-
life conservation and development, on the proviso that
such acquisitions require Congressional approval.

Relation of the Act to the NEPA
It has been held in several cases that "compliance with the National
Environmental Policy Act is also a de facto compliance with the
Fish and Wildlife Coordination Act.' The Court stated in Environ-
mental Defense Fund v. U.S. Army Corps of Engineers that
if defendants comply with the provisions of the latter act
NEPA) in good faith,

they will automatically take into con-

lCape Henry Bird Club v. Laird, 359 F. Supp 404, 418 (D.C.
va 1973)

217.

Fish and Wildlife Coordination Act

Relation of the Act to the NEPA (cont.)

sideration all of the factors required by the Fish and Wild-
life Act and it is not reasonable to require them to do both
separately."2

However, continued Congressional interest in the Fish and Wild-
life Coordination Act would indicate that it has not been com-
pletely superseded as a coordinative mechanism and as a grounds
of litigation. Two bills were introduced in the 93rd Congress
which would have amended the Act to expand the consultation re-
quirements noted above and to give any citizen a right of civil
action to secure compliance with the Act.3

2325 F. Supp. 749 (E.D. Ark. 1971)

3Cf. H.R. 10651 (93rd Cong., 1st Session), H.R. 14527
(93rd Cong., 2nd Session)

218.

Summary of Federal Legisl'ation

7. National Wildlife
Refuge System
16 usc 668dd to ee

Sumnary: The National Wildlife Refuge System is'a col-
lective name applied to various categories of areas
(wildlife rangesg waterfowl production areas, etc.)
which are administered by the Secretary of the Interior,
688dd(a)
The Secretary is authorized to acquire and ada lands
to the system in several ways:
-through exchange of lands already held;
-through the granting of rights to remoy'e certain
products from lands in the system;
-through payments of cash. 688dd(2) and (3)
The Secretary may permit various public uses within th6
System (683dd(d)) and, at a price, may grant easements
for powerlines, pipelineag roadsp etc., both to govern-
mental agencies (Federal,.-Statet or local) and to pri-
-i@Lte individuals.,-

219.

Summary of Federal. Legislation

8. Water Bank Program
for Wetlands Preservation
16 usc 13ol ff.
Planning: Soil and Water Conservation Districts are to
prepare plans identifying certain wetlands in the District,
especially those which are important for the nesting and
breeding of migratory waterfowl. 16 USC 1301
It appears that the plans will specify certain conservation
and development practices appropriate to the designated
wetlands. 1303 (3)
Agreements with ownersi The.Secretary of Agriculture is
authorized to enter into ten year, renewable agreements with
owners or operators of the designated areas under which they Under--
seek to preserve the "wetland, character" of those
areas, both by refraining from drain, fillq
or agricultural activities thereon and by undertaking certain
conserva-Uon practices. 1303(2) and (3). The secretary
shall reinit to participatinig owners and operators an a=ual
t
ayment at a rate which both reflects 1-and and crop values
1301) and provides sufficient. compen*s'ation-to.encourage
participation by eligible owners and operators. see. 1304

ice-%

A-

220.-

Summary of Federal Legislation
9. Endangered Species-Act of '1973
16 USC 1531-i543

Prohibited Acts:
The Secretary bf'the Interior, with the aid of the Secretary
of Commerce, is to prepare and keep updated a list of endangered
species and a list of threatened species. (sec. 1533) "Species"
Includes fishq wildlife'and plants. (1532(11))
It is declared unlawful for any person to@take (kill, capture, etc.),
Import, or sell in interstate and foreign commerce any species
of fish or wildlife appearing on the list of endangered species.
(1538(a)) It is also unlawful for any person- to ship or sell
An interstate and foreign commerce or to Import any species of
plant.1 'isted as endangered. As regards threatened species, regn-
lations are to be issued on a species by species basis. (15330Y)
Subject to*certain emer ency provisions, the general "taking"
prohibition (1538(a)(1)M) does not apply within any State
which -@-e joins the Secretary in a "cooperative agreement"
establishing particular "conservation programs" for endangered-
and threatened s-oecies resident within' the State. (1535(g)(2))

Cooperation with the States
The Secretary will enter into a cooperative agreement with any
State which hasq inter alia " the "conservation programs" men-
tioned above and the authoraies to acquire..lbnd or aquatic
habi tats. (1535(c)) If a State has entered. into such an agree-
ment, it is eligible to be financially assisted by the Secre-
tary in the development of prograifis for the conservation of
endanggred'and threatened species. (1535(d)) Such assistance
may reach 66% of program costs (75% for programs proposed by
two or more States which have entered jointly into.an agreement
with the Secretary-)(1536(d)(2))

Demands on other Federal Agencies
The Act-makes no mention of-the indirect danger@_ to various,
species which result from'pollution and from land and water
developments. However, all Federal ao-encies and departments,
are directed by the Act "to insure that actions authorized,,
funded or carried -out by them" do not critically jeopardize
the existence or "habitat" of endangered and threatened species.
e
(1536) There is no clause precluding application of thig sec,
tion to plant species. (Cf. also 1531 (0)).

_(cont. on next page)
22f.

Summary of Federal Legislation

Endangered Species Act of 1973 (cont.) 2

Citizen Suits

Subject to certain limitations, any person may commence a civil
suit on his own behalf in the U.S. District Court for the pur-
pose of:

1. enjoining anyone (including U.S. and other governmental
agencies) from violations of this Act or regulations
issued thereunder;

2. compelling the Secretary to apply the prohibitions on
"taking" of endangered and threatened species. (1540(g)(1))

Courts may award litigation costs and fees for attorneys and
expert-witnesses to "any party." (1540(g)(4))

222.

Summary of Federal Legislation

I
10. Marine Sanctuaries*
16.USC 1431 to.1434
The Secretary of Commerce is authorized by this act' to
desi t certain areas of the ocean waters or e the
afa e
Gre lakes as "marine sanctuaries," when such.a designa-
tion is necessary "for the purpose of preserving or re-
storing such areas-for their conservationg recreational,
ecological or esthetic" value. (sec. 1432 (a)) Note that
these appear to be'aquati'c areas, and not combined aquatic-
littoral areas.
@Ihere such a@ designation would attach to waters "within the
territorial limit of any @state.ll the governor of.the state h
has sixty days from the designation's publication to make
objection, and no such area to whi6h the governor objects
shail be-included in a @'marine sanctuary. (1432(b))
Once a sanctuary is designated, no activities may be
permitted or licensed therein by any authority without
certification from the Secretary of Commerce. (see. 1432(f))

-A-

-223.

Summary of Federal Legislation

11. Outdoor Recreation Programs
16 USC 460L 1 to 222

I. Land & Water
Conservation Act of 1965
16 USC 460L 4 to 11

The Fund

The act authorizes the establishment within the U.S. Treasury of
a land and water conservation fund, the annual income of which
through FY 1989 is to be $300,000,000. (460L-5(c)) Congress
is to make an annual appropriation from the fund, chiefly for
the use of the Secretary of the INterior. (460L-6 to 9) Forty
per-cent of the appropriation is for Federal recreation pur-
poses (e.g., land acquisition within National Park areas),
sixty per-cent for State recreation pruposes. (460L-7)

Assistance to States

The Secretary of the Interior is authorized to assist states
financially up to 50% of costs in:

1. the acquisition of lands and waters and interests therein
for recreation purposes;

2. the development of recreational projects. (460L-8(e))

The State Plan

The acquisition and development projects mentioned directly
above will be assisted by the Secretary only if they are in
accordance with a State comprehensive plan. (460L-8(e))
This plan must evaluate the demands for recreation resources
in the state and draft a program towards meeting those demands.
(460L-8(d)) The Secretary may financially assist the prepara-
tion and maintenance of the plan. (460L-8(d))

224.

Summary of Federal Legislation
Outdoor Recreation Programs (cont.)
12.
II. Federal Water Project
Recreation Act of 1965
1-6 USC 460L-1 2 to 21
The-Basic' I-dea
Federal water projects undertaken for purposes of'flood controls
navigation, or power may afford oppurtunities for the'develop-
ment of recreation sites or for the enhancement of fish and
wildlife. The Act intends that such opportunities be exploited.
(460L-12)

The "Machinery
Federal agencies undertaking water projects must give "full
consideration" to the- recreation and wildlife potential
opened up thereby. (460L-12) Both prior to approval of the
project and for a period of ten years after 'initial operation
of the pr'ojectq non-Federal public bodies may come forth and
agree to administer project lands or waters for recreation or
fish-wildlife purposes and 1)artially"I.t.o finance the "project-
modifications" @cf- 460L-14(b)(1) for'this term) entailed by
such purposes. k460L-13(a), 460L-14(b)) The'incentive extended
to such bodies is that the Federal government will Day up to
one half the cost of such modifications. (ibid.) However, after
the ten year period just mentioned, project lands with recrea-
tion or wildlife potential may, subject to certain limitations,
be utilized or conveyed by the agency with jurisdiction over
the project in any way not incompatible with the general au-
thority of the agency or the primary purposes of the project.
(460L-14(b))

Non-applicat5on to Certain Projects,---
The Act does not cover the attachment of any recreation or
wildlife developments to the following sorts of projects:
1. projects constructed under authority of the Watershed
Protection and Mood Prevention Act (4601-17(c));
2*. non-reservoir local flood control projects (460L-16(d)
3. beach erosion control projects.(460L-16(d))

-225.'

Summary of State Legislation
13. Fi sh and Wi ldlife Act (pertinent sections)
I.C. 14-2-1-1 to 14-2-10-1 (1969, 1973)

Lake Michi gan Fisheries
The Act empowers the Director of the DNR to regulate and protect
Lake Michigan fisheries in several ways.
A. The Director holds authority under the Act to issue com-
mercial fishing licenses for those portions of Lake Michigan
under Indiana jurisdiction. (14-2-7-11) License fee s increase
with the size and sophistication of gear or vessels used; and
fees for commercial fishermen not resident in Indiana are sub-
stantially higher than fees for state residents. (However,
the director may enter into an agreement with any neighboring
state for the reciprocal waiver of non-resident licensing re-
quirements with respect to fishing in "public water forming a
common boundary line" between the two states." (14-2-7-24)
Licenses expire at the end of each year (14-2-7-12), and may be
revoked by the director of the DNR at any time for failure to
comply with the provisions of this Act or with other conditions
attached to such license. (14-2-7-30)
B. Persons licensed to operate commercial fishing gear in
Lake Michigan must submit a monthly report to the DNR Director
itemizing amount of catch, gear used, locality fished, etc..
(14-2-5-5)
C. The DNR director may close portions of Lake Michigan and
other waters of the state to fishing when such closure is expedi-
ent for the "improvement and propagation of the wild animal popu-
lation. (14-2-6-9) (For purposes of this act, the term "wild
animal" includes fish.)

Cooperation with Federal Programs
Through the Act, the State of Indiana has assented to:
A. U.S. acquisition of lands and water in Indiana for migra-
tory-bird reservations (14-2-8-2);
B. the conduct of fish-hatching in Indiana lakes and streams
by the U.S. Fish and Wildlife Service (14-2-8-3);
C. state-federal cooperative wildlife (14-2-8-4) and fisheries
(14-2-8-5) restoration projects.

(cont. on next page)

22 6.

Indiana Fish and Wildlife Act

Endangered Species

A 1973 addition to the Act empowers the Director of the DNR to
undertake the "management" of non-game species which without such
management are in danger of failing to perpetuate themselves."
(14-2-8.5.-2) "Management" includes the acquisition and administra-
tion of habitats (14-2-8.5-1 (d), 14-2-8.5-9), and the "total
protection" of species or populations where appropriate. (14-2-
8.5-1 (d))

The scope of "total protection" is not indicated in the Act.
Note, however, that the Act does recognize pollution and other
man-made factors as dangers jeopardizing the survival of certain
species (14-2-8.5-1 (c)), and does call on the Governor to "en-
courage" other state agencies "to utilize their authorities in
furtherance of the purposes of this chapter." (14-2-8.5-9 (c))

227.

ARTICLE X

E. SHIPPING AND BOATING

228.

Summary of Federal Legislation re:
HIPPING

1. Ports and Waterways
Safety Act of 1972
(46 USC 391a: ship design, cargo, handling)

Summary:_ Subject to certain exceptions, no v essel shall carry.specified
liquid cargoes in bulk (subsec. 2). until it has been issued:
a. a certificate of inspection and a permit, attesting to its 'compliance
with vessel-safety regulations established, under authority of this
section (subsec- 3. 5)
b. a certificate of compliance attesting to the vesselts compliance with
marine-environment-Droteetbn regulations established under authority
of this act, (subse@. g) -
Such regulations are to be issued by the Secretary of the Dept. in ',%hich the
Coast Guard is working (Tran sportation). (subsec..3)-
Violations may be met with civil penalties (fines), imprisonmentv in rem
proceedings. and injunctive proceedings. Moreover, the Secretary may deny
entry into U.S. navigable waters to any vessels not in compliance with regu-
lations issued hereunder.
Federal-State connections: Connections are, at best, hinted at in the requirement
in subsea. 4 that Itinterested persons",-be permitted an,-opportunity for 'hearing,
when proposed regulations are published.

229.

July 99 1976
Summary of Federal Legislation re:
SHIPPING

.Ports and Waterways
Safety Act of 197?
(33 USC 1221-1227; harbor safety section)

Summaa: Secretary of Transportation is authorized among other things, to:
-control vessel traffic in congested areas and hazardous circumstances
(even to the point of restricting operations under hazardous conditiorE
to vessels "which have particular operating characteristies.n see. 1221
(3) (iv)) -
require p:lbts, even where state laws do not re uire them see. 1221 (5))
-establish controlled access waterfront areas. Zsbc. 1221
Note: I cited the above parts of see. 1221 as
containing the i,.mo'.st extensive exercises of the
federal reach.
Federal-state connections: see. 1222 (b): states may prescribe higher standards
than those which may be prescribed pursuant to this Act.
sec. 1224: state and local'governments, as well as
port and,harbor authorities, to be given opportunity for consultation when
Secretary prepares proposed rules.

230.

2. summary of Federal Legislation
Shoreline Erosion Control Demonstration Act of 1974
42 U.S.C. 1962d-5; P.L. 93-251, Title I, Sec. 43

Demonstration Projects:

This Act directed the Army Chief of Engineers to under-
take a five (5) year program demonstrating various shoreline
erosion control devices, "both engineered and vegetative".
At least two demonstration sites are to be located in the
Great Lakes. In the case of projects undertaken on non-federal
land, the non-federal beneficiary is to assume 25% of construc-
tion costs and full operation and maintenance costs.

231.

3. Summary of Federal Legislation
Federal Boat Safety Act of 1971
64 U.S.C. 1451 to 1489

Numbering System:

The Act requires "undocumented vessels with propulsion
machinery" to have a number. Undocumented vessels are those
which are not required to have a "valid marine document as
a vessel of the United States". Sec. 14520). States may
establish their own numbering system, but it.must be approved
As being in accord with a standard numbering system established
by the Secretary of the Department in which the Coast Guard
is operating. "A state with an approved system is the issuing
authority" under this Act. Sec. 1467. Otherwise the Secretary
is the issuing authority.,

Revenue Implications:

A. A vessel is to be numbered by the issuing authority
of the state "in which the.veseel is principally used."
Sec. 1466.

B. When the state is the issuing authority, it may
impose terms and conditions for vessel numbering "which
relate to proof of payment of state or local taxes." Sec. 1472.

C. The required "certificate of number" (a pocket
size document) shall not be valid for more than 3 years.
Sec. 1469.

State Safety Programs:

The Act authorized incentive grants to the states for
the establishment and administration of boating safety
programs. Sec. 1476, 1477. Programs are subject to accept-
ance by the Secretary, and must include a boat numbering
component, an education component and an enforcement compo-
nent, as well as being in substantia '1 conformity with the
Model State Boat Act. Sec. 1475. Programs may include the
acquisition of "facilities". Sec. 1478.

232.

July 9, 1976
Summary of Federal Legislation re;
SBIPPING

4. Great Lakes
Pilotage Act of 1960
(46 USC 216)
Summ Act provided for presidential proclamation "designating" certain
waters of the Qreat Lakes. In waters of Great Lakes left undesiimated by
proclamation, sec. 216a(b) of Act requires that '_'regislere7d -vessels of the
US" and foreign vessels have on board a registered U.S. or Canadian pilot
or some "other officer qualified for the waters -loncerned." Pilots and
Vother officers". as that phrase is used in 216@L(b), mean persons-licensed
by the-U.S. Dept. of Transportation or certiiicated by Canadain authorities-
-(see. 216)
Federal-State connection's: See. 216g (a): "No State, municipal, or other local
authority shall have any power to require the use of pilots or to regulate any
asppct of pilotage in any of the waters specified in this chapter.".

AIM%

-133.

ARTICLE X

F. STATUTORY BASIS FOR OTHER PLANNING

234.

Summary of Federal Legislation
Regional Planning

The folloving Federal statutes make direct or indirect reference
to regional planning bodies of the scale of NIRPC and MACOG.

16
(a) Demonstration Cities and
Metropolitan Development; Act o`f 19661
(42 USC 3301 to 3356)
2
This Act makes the vital provision that, within metropolitan areas,
application for Federal assistance for waste treatment works, high-
ways, water development and land conservat-ion._.projects must be -sub-
mitted for review "to any areawide agency which is designated
@to perform metropolitan or regional planning for the area within
which the assistance.is to be used." (42 Usc 3334; see. 204 of
the Public Law. This section falls.in subchapter II of the Act,
"Planned Areawide.Development.11)
Comments and recommendations of the areawide agency regarding the
projeetts compatibility with comprehensive planning developed for
the metropolitan area are @o accompany the application and be
reviewed by the Fed "eral 6.gency receiviiig the application, "for
the sole purpose of assisti.ng.it in determining whether the appli-
cation is in accordance with the provisions of Federal law which
govern the making of the loans or grants.11 (see. 3334 (b)(1))

(b) Tnter@-,overnmental CooDeration Act of 19681
(42 USC 4201 to 4244)
The Act requires generally that "to the maximum extent possible,
consistent with national objectivest all Federal aid.for develop-,
ment purposes shall'be consistent with . . . state, regionalp
and local planning.",,(42 USC 423.1 (c), see- 401 in the Public Law)
Moreover
"the systematic planning required by individual Federal programs
shall be coordinated
9'r
with and, to 'the extent authorized by law,made part of com-
prehensiv& local-and areawide development planning." (42 USC
4231 (e)

J
lIt,was under the authority of the Demonstration Cities and
Metropolitan Development Act (sec. 2049 42 USC 3344), the Ifiter-
governmental Cooperation Act (subchapter IVI.42 USC 4231 to 4233),
and the National Environmental Policy Act-(sec. 102 (2)(C), 42
USC 4332) that the Office of management and Budget promulgated
Circular'A-95, the working document that seeks coordination in
the application for and ap roval of Federal funding for state and
p
local projects. (Of- 41 Fed. _Reg. 2052 ff.) Ile.
2A "metropolitan area" is used in the Act to mean a stan-
ki dard metropolitan statistical a-Tea (M4SA),as established by the
n5.

Regional Planning

(c) HUD 701 Comprehensive Planning
(40 USC 461)
Under this section planning grants are available to a variety of
recipients including areawide organ izations in metropolitan
areas charged with performing regional planning. (40 USC 461
(a)(5))
(d) Housing and Community Development Act of 1974
(P.
L. 93-383)
The Secretary of HUD is not to approve grants for various com-
munity development projects, including acquisition of blighted
property, open space conservation, and provision of certain public
facilities (sec. 105 (a) (1)), unless the applicant, among other
things, "specifies both short- and long-term community development
objectives which have been developed in accordance with areawide
development planning." (sec. 104 (a) (1))
(e) Federal Highway Act
(23 USC 101 to 142)
The Secretary of Commerce is not to approve grants for highway
projects in urban areas of more than 50,000 population "unless
he finds that such projects are based on a continuing comprehensive
transportation planning process carried on cooperatively by States
and local communities. (23 USC 134; cf. also amendment to 23
USC 105 as set forth in the 1974 supplement to the 1970 edition of
the USC.)
(f) Urban Mass Transportation Act
(49 USC 1601 to 1612)
The Secretary of Transportation is not to approve grants for urban
mass transit projects unless he finds the projects to be part of
a program established "for a unified or officially coordinated
urban transportation system as a part of the comprehensively planne d
development of the urban area. (49 USC 1603)

Office of Management and Budget (0MB). In the Coastal Zone Study
Area, Lake and Porter counties constitute an SMSA, the title of
which is the Gary-Hammond-East Chicago, Indiana SMSA. (Standard
Metropolitan Statistical Areas, prepared by the Bureau of the Bud-
get, Executive Office of the Pesident, 1967, p. 17. Note that the Bureau of the Budget is now the OMB) La Porte county is not listed in
this 1967 publication as falling within an SMSA.

236.

Regional Planning

(g) Public Works and Economic Development Act
(42 USC 3121 to 3226)

A 1974 amendment added section 3151a, which authorizes the Secre-
tary of Commerce to make grants to a variety of recipeients, includ-
ing "sub-state planning . . . organizations," for "economic develop-
ment planning." (Cf. 1974 Supplement to USC.) This planning is
to determine project opportunities and formulate a development
program. Note that these grants are not limited to Redevelopment
Areas and Economic Development Districts as these terms are defined
earlier in the Act. (Cf. 42 USC 3161, 3171.)

237.

Summary of Federal Legislation

2. National Environmental Policy Act of 1969 (NEPA)
42 USC:.'4321 to 4347

The EIS requirement
The Act voiced the Congressional intent that decision making
by Federal agencies-take into account "presently unquantified
environmental amenities and values." and concretized this intent
@y requiring that an environmental iMDact statement (EIS) be
prepared in conjunction with proposals for "major Federal actions
significantly affecting the quality of the human environment."
(sec. 4332 (2) (C); see. 102 (2) (C) in the Public Iaaw) The
EIS is to "accompany the proposal through the@existing agency
-review processes'(ibid.). The EIS requirement has generated
a very large amount of litigation.. Some of the points of dis-
pute are the following.
'I. What is the force of the NEPA?
In a landmark 1971 decision interpreting the INWA,, the Court
of Appeals for the District of Columbia distinguished section
101's substantive requirements that tha Federal Government use
all th" environment (42 USC
13racticable means to safeguard e
432 and section 102's procedural requirements with respect
to EIS preparation, and then went on to hold that although an.
agencyts substantive decisions under see. 101 could "probably"
not be reversed by the Courts, "section 102 of NkPA . . .
creates judicially enforceable duties.

2. Who may prepare the EIS?
The Second Circuit Court of Appeals had held that EIS prepara-.
tion for a, federally funded highway project could not be dele-
2
gated to a state agency. This decision brought federally funded
highway projects in a three-state region to an almost total halt.
rn re@p@n@4 f6 that decision Congress anended section 102 of
@he 15TA (section 4332 in the USC)-to allow state agencie-s
with "statewide jurisdiction" over the sort of'project in ques-
tion to prepare' the appropriate EISI subject to the guidance
and evaluation of the Federal agency through whom the Federal'
funding is being administered (42 USC 4332'(D) as added by
P.L. 94-82p 12/9/75)

lCalvert Cliffs Coordinating Committee v. U.S.-AEC,
449 F. 2d 1109:(I).C. Cir-P 1971) at 1115; emphasis added,
2
-Conservation Society of Southern'Vermont v. Secretary
of Transportation, 508_F.2d 927 (2nd Cir. 1.974)

238.

Summary of Federal Legislation
NEPA (cont.)

3. What are "major Federal actions"?
Environmental impact statements may be required for actions
permitted or licensed by a Federal agency, even where actual
Federal construction or funding is not involved, 3 and for actions

where only an indirect environmental impact, such as approval
of railroad rates for hauling, recyclable materials, is at issue. 4
However, state-financed projects, although part of a general
program including other projects receiving Federal funding,
may not require an NEPA environmental impact statement.5
And Federal actions at several removes from any environmental
impact, such as FTC issuance of guidelines regarding vertical
mergers in the c ement industry, will not be subjected to the
EIS requirement.6
4. What attention must be paid to an EIS?
The Calvert Cliffs case, noted above, confronted AEC regulations pro-
viding that an EIS for a proposed nuclear project would be "received
into evidence" (i.e., given active consideration) by the atomic
safety and licensing board only on the condition that a party to the
proceeding actually raises some environmental issue.7 The Court re-
jected this conditional procedure and held that the NEPA appeared to
"demand that environmental issues be c onsidered at every important
stage in the decision making process."8

3Scientists' Institute for Public Information, Inc. v.
AEC, 481 F.2d 1079 ( , 1973).
4Aberdeen & Rockfish R.R. Co. v. SCRAP, 422 U.S> 289 (1975).

5Friends of the Earth, Inc. v. Coleman, 518 F.2d 323
(C.A. Cal, 1975).

6Gifford-Hill & Co. v. FTC, 389 F. Supp. 167 (D.C.D.C., 1974).

7Calvert Cliffs v. AEC at 117

8Tbid., at 1118

239.

Summary of Federal Legislation
NEPA (cont.)

5- What is the scope of an EIS?
Individual projects are often 'part of a broader proaEam.
and the degree and quality of environmental assessment may WTI
differ as EIS's are required only for the specific projects
or for the overall program. A recent decision in. the D.C.
Circuit Court extended the requirement for a "program EIS"
by requiring this broad statement for the total range of
Federal activities by which the coal resour es -of the 'Northern
Great Plains are currently being developed-5 The novel aspect
of the case lay in the fact that the court handed down this -
requirement in spite'of the claim of the three Federal Depart-
ments involved (Interior, Agriculture, and Army) that their
issuance of various leases, rights-of-way,, and construction
permits to various individual companies was not.part of any
integrated plan or program.
However, one of the important Second Circuit decisions on
which the Sierra case depended has since been reversed. In
Conservation Society of Southern Vermont, Inc. v. Secretary of
Transportationlo the 6ourt had held Xhat improvement of a
20-mile s6gment of-a highway could not proceed until a program-
EIS was prepared for the entire 280-mile length of the high-
way. However, when the case was remanded, the court reversed
its requirement of a program-EIS, relying on the June, 1975
SupreTT Court decision in Aberdeen -and Rockfish R.R. Co. v.
SCRAPL
In the SCRip case the Supreme Court had decided that, although
an ICC proceeding on freight rates.required preparation of an
EIS for that particular proceedingt nevertheless approval of
a percentage rate increase in fhat proceeding did not
have to await preparation of a comprehensive EIS. exploring
the entire underlying rate structure on which the increase
12
was to be superimposed.

9Sierra Club v. Morton, 514 F.2d 856 (D.C. Cir 1975)-
10 '508 F.2d 927 (2nd Cir. 1974)
422 us 289 (1975),' The decision on remand is at
531 F. 2d 637 (2nd Cir 1976).
12
422 US 2899 322 to 324-

t40.-

Sum ry of .Federal @egislaLn
3. Planning by Depar@ment p-f Housing and Urban.Development
(a) Comprehensive Planning
40. USC 461

to make
This section authorizes the M secretary directly
planning grants or indirectly to provide planning funding
to a large variety of recipients including, among others,
statess cities, countiesq groups of adjacent communities, and
development districts. 461.(a). Recipients who meet certain
planning and repoicting requirements are eligible annually for
a continuation of such g7ant money. 461(d)
Basic Planning requirements: Each plan shall conULin:
A. a housing element, concerned with sati;@Lfying housing
needs in the plan-area.
B. a land use element directed both towards controlling
in general "where growth shall take place" in the plan
area-and.towards handling the pattern and intensity of
tra.ditioDall"2 (residential, commercialg industrial) ac-
tivities and "other" activities.
Comprehensive Planning: In extending financial*assistance,,
the Secretary may require assurance that recipients are
moving towards a more comprehenUve-sort of planning
(461(f)), which includes not only the basic elements listed
above, but additional elements# among which axe:
A. provis5on of public facilities and government services
(transportation is specifically mentioned);
B. development and utilization of natural resources;
0. identification of employment, education, and health
needs in the plan area;
D. coordination of all related plans formulated by state
and local governments- 461(m)(4)

'241.

Summary of Federal LeEislation

(b) Open Space Tand
42 USC 1500

Summary: Authorizes the secretary of HUD to help state or
local governments finance the acquisition and development
of open space land in urban areas. (1500a(a) The condition
of any such federal grant is that the proposed project be
..part of an officially coordinated open-space program,
which in turn is consistent with the "comprehensively plannedle
development of the urban area. 1500 b. Once lands are
acquired under 1500 (a), they may not later be converted to
other uses without approval of the sectetary. 1500

242.

Summary of Federal Legistration
(c) Planned Areawide Development
42 USC 1331

Summary: Authorizes secretary of HUD to make s upplemental

grants to State and local public bodies for "areawide develop-
ment projects" (viz. certain public facilities projects al-
ready partially funded under federal acts-cf. 1338(2)), if
those State or local bodies can demonstrate that areawide
comprehensive planning is in effect and is playing a
determinative role in the locating and scheduling of public
facility projects. 1335

243.

Summary of Federal Legislation

(d) The National FLood Insurance Act
42 USC 4001-4127

Coverage: The Act authorizes the Secretary of HUD to
establish and carry out a "national flood insurance
program" (4011(a)), the "operational responsibility"
for which will preferably rest with the nation's insur-
ance industry (4011(b)), but will, if necessary, rest
directly with the Federal Government. 4071 Coverage
would extend to losses incurred by certain sorts of
property by reason of flood, mudslide (4121(b)), or
shoreline erosion. 4001(g) (Cf. USC, 1974 supp.)

Land use implications: The flood insurance program
provides two "conditional benefit" relationships, the
net effect of which is to put the department of HUD
in the position of establishing fairly detailed land-
use parameters for flood plains.

A. Persons in flood hazard areas are to be denied
any Federal "financial assistance for acquisition
or construction purposes" unless the community in
which such area is situated is participating in the
National flood insurance program. 4106(a) Moreover,
Federally insured or regulated banks are prohibited
from making loans secured by real estate located in
the hazard area if the community in which such area
is situated is not participating in the flood insur-
ance program.

B. But, before a community, state, or area can
participate in the flood insurance program, it
must give assurance that it will adopt land-use
and control measures consistent with certain
:criteria for land management" developed by the
Secretary of HUD. 4012(c)(2) Such criteria are
to be designed to encourage state and local measures
that will constrict the development of flood en-
dangered land and guide proposed construction away
therefrom. 4102(c)

(The above provisos also apply to situations where
the hazard involved is mudslide or erosion, save
to the extent the Secretary of HUD adopts regula-
tions particular to such situations. 4121)

244.

4. Summary of Federal Legislation
Water Resources Planning Act
42 U.S.C. 1962 to 1962(d)-14
(July 22, 1965)

Water Resources Council:

The-Act established-a Water Resources Council entrusted
with-an-overview and review role-in certain regional and river
basin planning-processes.

Overview Aspect:

The Council is to study the relations of regional plans
to,national-water requirements , and the inter-related pro-
jects of Federal agencies.' SeL-1962a-l.

Basin Commissions and Plans:

The President may declare the establishment of Basin
Commissions.- 1962b(a). By Executive Order 11345 of April
20, 1967 (set out following section 1962b of the Act),
President Johnson declared the establishment of the Great
Lakes Basin dommission, with jurisdiction over that portion of
the great lakes states which is drained by the Great Lakes.
The Commission is of mixed state-federal composition, including
a member from each of eight federal departments, a member from
the Federal Power Commission, and a member from each of eight
Great Lakes'States including Indiana.

Within its proper area, a Basin Commission is empowered
both to provide coordination for "Federal, State, inter-state
local and non-governmental plans" for the development of
water and related land resources (Sec. 1962b (b) (1)), and to
prepare and keep updated a "comprehensive . . . plan for
federal, state, inter-state, local and non-governmental
development of water and related resources." Sec. 1962b (b) (2).

The Governor of each state involved is given 90 days to
comment on newly proposed or revised comprehensive basin
plans. After this period, plans are submitted to the Council
for review and recommendations, then to the President for
review, and then to Congress. Sec. 1962a-3.

245.

State Planning:

In addition to promoting basin planning, which tends
to be of an inter-state character, the Act also authorized
funds to assist individual states in developing "comprehen-
sive water and related land resources plans." Sec. 1962c (a).
Such plans were made subject to approval by the Water
Resources Council and were to take into account "prospective
demands for all purposes . . . affected by water and related
land resources development Sec. 1962c-2.

Presidential Planning:

Under the Federal Water Pollution Control Act amend-
ments of 1972 (P.L. 92-500), the President, "acting through
the Water Resources Council," is to prepare a "Level B"
plan under the Water Resources Planning Act for.all basins in
the United States." Such plans are to be completed by January
1, 1980. $200,000,000.00'is appropriated for such planning
33 U.S.C. 1289.

246.

Summary of State Legislation
S. Regional Planning Commissions
(I-C- 18-7-1.1-3 to 18-7-1.1-9; 1973)

Formation
The Act states that a Regional Planning Commission (RPC) may be
established at the concurrent request of the counties in a region.
(18-7-1.1-2). Commission membership represents counties and
incorporated cities and towns (18-7-1.1-4 (a)(1) and (2)). "Two-
thirds of the Commission membership shall be elected officials."
(18-7-1.1-4(a)(4)) The Commission is to appoint an executive direc-
tor, who in turn may appoint staff. (18-7-1.1 -6)
The Act provided for the reorganization of multi-county planning
commissions (cf. 18-7-5.5-1 to 9) into RPC's. (18-7-1.1-9) More-
over, the Act repealed a 1967 Act entitled "Regional Planning Com-
missions in Regions Containing a Population of 500,000 to 650,000"
and required any such RPC's to meet the requirements of the 1973
Act. (Cf. note after 18-7-1.1-9.) The combined population of Lake
and Porter Counties in the 1960 census was 573,000. Ile

Powers and Limitations
A. Although an RPC "shall act in an adversary-(sic; should be
"advisory") capacity only (18-7-1.1-5(a))," it may function, when
requested, as a coordinating agency for programs of other public
agencies.
B. An RPC may adopt a "regional comprehensive . . . plan . . . as
its official recommendation for the development of the region."
(18-7-1.1-5 (b))
C. An RPC may receive Federal fund% (18-7-1.1-5 (c))
D. An RPC is to act as the A-95 Clearinghouse. (18-7-1.1-5 (g))l
E. An RPC may enter into "cooperative arrangements" with adjacent
political subdivisions in an adjoining state but may not delegate
any of its powers or duties. (18-7-1.1-5 (f))

County Exemption
Counties are given the power to exempt themselves from the pro-
visions of an RPC plan. (18-7-1.1-5 (b)and 18-7-1.1-5 (i)) Two
difficulties may be noted:
A. It is not clear from the Act what effect a county' s exercise
of this exempting power would have on the cities and towns
contained within that county.

1Cf . Circular A-95, Office of Management and Buget, as
published at 41 Fed. Reg. 2052.

247.

Regional Planning Commissions (Ind.)
County Exemption (cont.)
B. A county's exercise of this exempting power, although a de
facto repudiation of the RPC's comprehensive plan, would not
appear to dispense the county from submitting its own appli-
cations for Federal aid to the RPC for A-95 review, even
though such review is required to consider the compatibility
of the application with the areawide comprehensive plan.2

Multi-State Waste Disposal
An RPC, created in accord with the Act, is specifically prohibited
from implementing or proposing a program which includes "interstate
waste water management." (18-7-1.1-5(a)) This prohibition is further
particularized in an act of the same year which states that an RPC
established in accordance with 18-7-1.1-1 to 9 shall not "in any
way help implement any land disposal provisions of the Chicago-
South End of Lake Michigan (C-S.E.L.M.) Waste-Water Study conducted
by the Army Corps of Engineers, or any other similar study that
would create a multi-state waste disposal system" (18-7-1.2-1)

2Cf. 42 USC 3334; OMB Circular A-95, I.2.a, I.3.a, and V.10
as published at 41 Fed Reg. 2052 ff.

248.

Summary of Federal LeCislation

6. Watershed Protection and
Flood Prevention
16 usc lool-loog (1954)

Introduction
'The Act introduces the Department of Agriculture into the plan-
ning and financing of flood control measures, thus forming a
triangle of mutual concerns between the Department of Agricul-
ture and the other two bodies already involved with water
projects, namely, the Corps of Lgineers and the Department of
the Interior.

The Kinds of Works ALithorized
_@-By the Act the Secretary of Agriculture is authorized to furnish
financial and other assistance to "local organizations" for
"works of improvement" in watershed areas. (see. 1003) "Local
organizations" include States, political subdivisions thereof,
.,..and special districts such as soil.and,.water conservation dis-
tricts. (sec. 1002) Works Of iMDrovem"ent may be directed not
only to agricultural purposes and to flood control, but also
'.@to recreation and fish and wildlife development. (Cf. see,
1
004(2)(A)), Amendments of 1972 expanded'the Act to include
water quality management projects,, especially those regulating
stream flow by -means of resevoir systems. (cf. see, 1004 in
the 1974 supplement of the 1970 edition of USC; cf. P.L. 92-
..:419t Tit. II, see. 201(d)-(f@)

Of Project Size
Si@,nificance

Different approval pro(edures are outlined for different magni-
tudes of projects,
1i Projects entailing a Federal contribution of less than
-no structures providing more than 2500
..@.._'8250,000 -nd involving
acre-feet of total capacity may apparently be given final au-
.....:i..,-.thorization by the Secretary of Agriculture. (see. 10050))
(An acre-foot is the volume of water needed to cover one acre
to the depth of one foot.)
.2. Projects on the far side of the measures indicated im-
mediately. above require committee approval in Congress. Within
this'class, projects involving large structures require approval
of Public Works Committees in the House and Senate, while
projects with smaller structures are referred to Agriculture
Committees. (see. 1002)

249.

Swmmary of Federal Legislation
Watershed Protection (cont.) 2

Significance of Project Size (cont.)
3. Massive projects. (e,g., ones including single struc-
tures with more than 25,000 acre-feet of total capacity or
involving watershed areas in excess of 250,000 acres) are not
included within the authorization powers extended to the Sec-
retary of Agriculture under this Act. (sec. 1002)

Relation of Project Type to "Recommendat ion" Requirements
Projects requiring Congressional approval must also be routed
through one or more of four Federal agencies, to receive
"views and recommendations," if appropriate interests are touched
upon by the projects. These agencies are Interior, Army, HEW,
and the EPA* Such recommendations are to accompany the plan
to Congress. (see. 1005(4) of 1974 Supp. to USC)

State Review
The Secretary of Agriculture will apparently not act on project
proposals if they are disapproved by the state agency "having

supervisory responsibility over programs provided for in this
chapter." (see. 1003)

250.

ARTICLE XI

FEDERAL AND STATE AGENCY JURISDICTIONS

A. LISTING:

1. Federal:
Advisory Council on Historic Preservation
Bureau of Land Management
Bureau of Outdoor Recreation
Coast Guard
Corps of Engineers
Council on Environmental Quality
Department of Engineers
Department of Agriculture
Department of Health, Education & Welfare
Department of Housing and Urban Development
Department of the Interior
Economic Development Administration
Energy Research & Development Administration
Environmental Protection Agency
Federal Engergy Aministration
Federal maritime Commission
Federal Power Commission
Federal Property Council
Fish and Wildlife-Service
General Services Administration
Great Lakes River Basin Commission
Maritime Administration
National Marine Fisheries Service
National Oceanic and Atmospheric Administration
National Park Service
Nuclear Regulatory Commission
Office of Management and Budget
Office of Pipeline Safety
U.S. Geological Survey
Water Resources Council

*A discussion of certain of these agencies has been
presented in the summaries and comments concerning
legislative topics, in Article.X. Where there has
been no prior presentation, a separate description
-follows in Part B.

251.

2. State:

Air Pollution Control Board
Board of Health
Department of Natural Resources
Environmental Management Board
Public Service Commission
Recreational Development Commission
Stream Pollution Control Board

252.

ARTICLE XI

B. FEDERAL AGENCIES

253.

Summary of Federal Agencies

Coast Guard

The Coast Guard currently operates within the Department of
Transportation. Some@of the Coast Guard's many functions and
authorities are listed below.-in.table form.

Statutory Regulations Coast Guard activity
4
authorization issued by or power
Coast Guard

33 USC 401' 33 CFR 114- The Coast Guard regulates con-
struction of "bridges and cause-
way _3 le waters,, to
s in navigab
the extent that questions of lo-
cation and clearance are involved.
33 IJSG 499 The CG regulates the operation of
drawbridges.
33 'USC 513 The CG regulates the alteration of
obstructive bridges.
.33 CFR 90 Thesp"CG safety regulations
govern navigation of the Great
- Lakes.
33 IJSC 1224 33 CFR 16o The CG may exercize controls
Ports . . . Safety over vessel traffic at congested
Act of 1972 points or under hazardous circum-
stances.
46 USC 391a, and 46 CPR 30-40 The CG exercises extensive con-
elsewhere and else- trol over vessel design, 46 CFR
where 30-409 for example.are regula-
tions for the design and eqAip-
pIng of tank vessels.
33 USC lJ21 (j)' (1) 33 CFR 155 These CO regulations govern vessel
(C) and b) design and equipment1for the pur-,
FWCPA of 1972. pose of preventing discharges
of oil and other hazardous s-ab-
stances.
46 USC 1451 to 33 CFR 173 These CG regulations govern the
1489 numbering of boats.
Fed Boat Safety.
Act of 1971
33 cFR 181, T49.:gG. may issue safety-related
at-design standards and may
183 bo
certify boats as being in.compliance
therewith.

254.

Summary of Federal Agencies
2. Council on Environmental Quality (CEQ)

The CEQ was created by the National Environmental Policy Act of
1969 (42 USC 4332) and is part of the Executive Office of the
President. It surveys all aspects of the nation's environ-
mental effort, makes policy recommendations, and annually pre-
pares an environmental quality report which is submitted by
the President to Congress. The Council has prepared EIS
guidelines (40 CFR 1500) and a National Oil and Hazardous
Substances Pollution Contingency Plan (40 CFR 1510), the latter
under sec. 311 of the Federal Water Pollution Control Act Amend-
ments of 1972. (33 USC 1321)

Summary of Federal Agencies

3. United States Fish and Wildlife Service (USFWS)

The USFWS is a service in the Department of Interior. Some of its
functions related to commercial fisheries were transferred to the
NOAA's National Marine Fisheries Service by Reorganization plans
#3 and 4 of 1970. (Cf. 35 Fed. Reg. 15623 ff.) The USFWS presently
administers the following programs, among others.

Statutory Authority
16 USC 777
to 777k

16 USC 688
dd to ee

16 USC 1531
to 1543

Regulations
50 CFR 80

50 CFR 25 to 34

50 CFR 17

50 CFR 70
to 71

The Program
The USFWS aids states in the re-
storation of fisheries. (Cf.
"Summary of Fed. Legislation:
Fish Restoration and Management
Projects.")

The USFWS administers the Natio-
nal Wildlife Refuge System. (Cf.
"Summary of Fed. Legislation.")

The USFWS administers the
Endangered Species Act of 1973.
(Cf. "Summary of Federal Legis-
lation.")

The USFWS operates 100 National
Fish Hatcheris. (U.S. Gvmt.
Manual, 1975/76, p. 282)

256.

Summary of Federal Agencies

4. National Oceanic and Atmospheric Administration (NOAA)

1970 Creation
The NOAA was created within the Department of Commerce by Reorga-
nization Plas #4 of 1970 to provide a unified approach to the
understanding and development of atmospheric and marine resources.1
Programs from several agencies were transferred into the NOAA in-
cluding, among others:

A. programs of the Bureau of Commercial Fisheries of the
Department of Interior, with the exception of activities
related to the Great Lakes Fisheries Commission;2

B. the U.S. Lakes Survey of the Department of Army. This sur-
vey publishes navigation charts of the Great Lakes and con-
ducts research on hydraulic and hydrologic phenomena of the
Great Lakes' water.3

Summary of Present Functions
Present NOAA functions include operation of the National Weather
Service, the National Ocean Survey, and the National Marine
Fisheries Service, as well as implementation activities under the
CZMA of 1972 (16 USC 1451 to 1464), the Marine Protection, Re-
search and Sanctuaries Act of 1972 (16 USC 1431 to 1434), and
the Endangered Species Act of 1973 (16 USC 1531 to 1543).4

1Cf. 35 Fed. Reg. 15627 ff.

2Cf. 'Summary of Federal Agencies: NMFS" and "Summaries of Federal
Legislation: Great Lakes Fisheries Act of 1956."

3Cf. Message of the President, 7/9/1970, set out after 42 USC
4321, subtitle "Components of the NOAA."

4U.S. Government Manual 1975/76, p. 140.

257.

Summary of Federal Agencies
5. National Marine Fisheries Service (NMFS)

The NMFS is a service within the NOAA, which in turn is in the
Department of Commerce. It analyzes and assists the nation's
fisheries in their commercial aspects. Two specific programs ad-
ministered by the NMFS are presented in chart form below.

Statutory Authority

16 USC 742c

16 USC 779a-f

Regulations

50 CFR 250

50 CFR 253.2

The Program

The NMFS administers the FIsheries
Loan FUnd, which assists private
sector acqusition of commercial
fishing vessels and gear. (Cf.
"Summary of Fed. Legislation:
Fish and Wildlife Act of 1956.")

The NMFS administers the Commercial
Fisheries Research and Develop-
ment Act. (Cf. "Summary of Fed.
Legislation.")

258.

6. Federal Agencies and Jurisdictions
Federal Maritime Commission (FMC)
Maritime Administration (MA)

The Federal Maritime Commission exercises certain
regulatory powers with respect to the rates and fairs of
11common carriers by water." Reoganization Plan No. 7 of
1961, Sec. 103; set out as note after 46 U.S.C. 1111.
Members of the Commission are appointed by the President.
The Commission is not a part of any executive department.
Sec. 101.

The Maritime Administration exercises functions with
respect to the making, amending and terminating of subsidy
contracts for the construction and reconditioning of
vessels (and shipping facilities). Reorganization Plan No.
7, 1961, Sec. 202 (b) (1), set out as a note after 46 U.S.C.
1111; Reorganization Plan No. 21 of 1950, Sec. 105(l), set
out as a note after 46 U.S.C. 1111. The Administration is
in the Department of Commerce. Reorganization Plan No. 21 of
1950, Sec. 201.

Both the FMC and MA succeeded to certain powers of
the Federal Maritime Board, abolished by Sec. 304 of Reorganiza-
tion Plan No. 7 of 1961. The Board itself had succeeded
to certain powers of the former United States Maritime
Commission. Cf. Reorganization Plan No. 21 of 1950, Sec. 104
and 105.

259.

I
I
I
I ARTICLE X
I C. STATE AGENCIES
I I .
I
I
I
I -
I
I
I
I
I
I
I
I
1 260.

Summary of State Agencies
1.1ndiana Public Service Commission (PSC)
as allecting electric ullilzies

The Indiana PSC regulates electrical utilities as to rates,
issuance of securities, and in other respects. The PSC also
grants licensesp permitsp and franchises.(all with the.effect of
"indeterminate permits") "to 0-YM, operate, manage, or control" the
plant or equipmeni of public utilities. (I.C. 8-1-2-91 and 92)
However, this licensing authority apparently does not extend so
far as to give the PSC direct authority over the siting and con-
struction of power plants. Indiana responded in the negative to
the following question in a 1972 Senate Committee survey: "Doe
your state agency have authority to certificate construction?"
(Note that in the case-of nuclear powered generating facilities,
constructionand operation thereof expressly requires a permit from
the Indiana Environmental Management Board. 13-7-9-1)

1P F
1cf. Public Service Commission Act of 1941, I-C- 8-1-1-1
to 8-1-1-13; Public Service Commission Act of 1913t I.C. 8-1-2-1 to
8-1-2-120, as well as regulations occurring between.54-201 and
54-401 of Burns Indiana Administrative Rules and Regulations.
21ncludea as an Appendix .in Journey, Power Plant Siting,
48 NOTRE DAME LAW REVIEW 273 at 307 (1972) .......... .

61,

Summary of State Agencies
2. Recreational Development Commission (RDC)
(I.C. 14-3-12-1 to 24; added by Acts
1973, extensively revised by Acts of 1975)

Basic Function of the RDC
The RDC consists of five-members (one of whom, ex officio, is
the director of the DNR) and is a body both corporate and
politic. (14-3-12-4) Its particular function is to handle the
financing and construction of "park projects." This latter
term apparently refers not to the development of new parks
but to the enhancement of present parks, although some doubt
is cast on the matter by the broad definition of "parks" to
include "any lands suitable for public recreational facili-
ties." (14-3-12-3(b) and (c)) (The Act does exclude from its

scope, however, parks "of political subdivision of the state.")
"Park projects" include, for example, interior arterial sys-
tems and boating facilities. (14-3-12-3(c))

Specific powers
In furtherance of its basic function, the RDC is given the
following powers, among others:
-power to acquire by purchase, lease (14-3-12-6), or
eminent domain proceedings (14-3-12-7) the lands, ease-
ments, etc. necessary for the construction of park pro-
jects;
-power to provide for the issuance of park revenue bonds
for the purpose of paying the costs of park projects
(14-3-12-10);
-power to enter into contracts for the planning and con-
struction of park projects (14-3-12-5(e) and (f).

Relation to DNR
The Act makes provision for, but does not require, the DNR
to undertake the actual operation of park projects. The
DNR and the RDC may enter into "agreements of use" with
respect to such projects (14-3-12-4.5, 14-3-12-9), whereby
the DNR pays the RDC a "rent" (cf. 14-3-12-19 for the term
"rent") on the project sufficient for maintenance and re-
pairs and for payment of interest on and eventual retirement
of the debentures by which the project was financed. (14-
3-12-9) The DNR apparently acquires funds for the payment
of this rent from revenues deriving from the projects them-
selves (cf. the next to last sentence of 14-3-12-9) and through
special surcharges on admission fees and boat-related fees.
(14-3-12-19) "The use of any improvements covered by such
agreements and the sites thereof shall, at the end of the
term of such agreement . . . revert to the DNR." (14-3-12-9)

262.

ARTICLE XII

EMINE NT DOMAIN

A. FEDERAL POWERS:

1. Generally:

The general condemnation power is granted in 40 U.S.C.

�257, which provides:

"In every case in which any officer
of the government has'been, or hereafter shall
be,:authorized to procure real estate. . . for
public uses, he may acquire the same for
th; United States by condemnation, under judicial
process, whenever in his opinion it is necessary
or advantageous to the government to do so . . .
40 U.S.C. �257.

Whenever any officer of the government seeks to

acquire land or easement'or right-of-way in land for public

use, before judgment, he may file a."declaration of taking",

declaring that said lands are thereby taken for the use of

the United States. The declaration must contain a statement

of the authority under which and the public use for which the

lands are taken, a description of the lands, a-statement of the

"estate or interest to be taken, a plan, and a statement of the

sum of money estimated to be just compensation. Upon a,filing

of said declara@tidn-of,takinq'and of-the deposit in the court,

title to the lands shall vest in the Uni ted States, and the

land shall be deemed to be condemned and taken, leaving

263.

only the final det e*t mination of just compenation to be made

by-the court. 40 U.S.C S258a.

In connection with a 1971 act of the Congress concerning

uniform relo cation assistance, the Congress also adopted a

uniform real property,.acquis-itioti-p6licy. 42 U.S.C. �4651.

Under another section of the'same act, it was stated that the

provisions of this uniform real pro-pe.r-ty.acquisition policy

no,rights'or,liabilities,and was not to affect the

validity of Any p3@operty acquired by,purchase or condemnation.

in addition, nothing under its provisions was to be construed

as creating in any condemnation proceeding, any element of

value or of damage not in existence prior to its enactment.

42 U.S.C. 94602.

The uniform real property acquisition policy set

forth the following guidelines which were to be followed

to the greatest extent practicable.

1. Every reasonable effort to expeditiously
acquire the real property by negotiation
.-shoul-d :b@e- persued

@.2.-. The,real estate should be appraised before
negotiations, and the,o wner given an oppor-,_
tunity-to accompany the appraiser and to
see the appraisal.

3. Before negotiations, the-officer shall establish
an amount which he believes to be just com-
pensation -arid -shall make a- prompt of f er for
the Yu-1 1 -amount so, established; and in no
event@ should such amount be less that the
agency's approved appraisal of the fair
market value.

4. To the extent practicable, no owner should
be requested to move without at least 90

264.

days written notice.

5. If the acquisition of only a part of the
property would leave the owner with an
uneconomic remnant, an offer should be
made to acquire the entire property.

2. Navigation Purposes:.

In connection with public works for the improvement of

rivers and harbors, the Secretary of the Army'is giVen specific

authority to*acquire land, right-of-way or'material by condemna-

tion. 33 U.S.C. �591. The Secretary may institute condemnation

proceedings to acquire lands or easeme nts needed by private

or municipal-persons in connection with river and harbor

improvement works; and likewise for any state, or any reclama-

tion of flood control or drainage district who need to secure

land or-easements in connection,with river and harbor improve-

ments. 33 U.S.C. �592, 593.

There are other specific provisions relating to,condemna-

tion in.this..area,including a provision that where a part only

of any land istaken, the just compensation awarded or the

damages assessed to the owner shall take into consideration

by way of reducing the compensation or damages any special

and direct benefits to the remainder arisin g from the improve-

ment. 33 U.S.C. �595.

In this legislation, the land to be taken must be

"needed" for the river and harbor improvement. Under the

general condemnation act, 40 U,.S`.C. �275, the finding by

the officer seeking to take the real estate is that such

265.

land is "necessary or advantageous" to, the government.

Each of these actswere originally enacted in 1888.
In 192j, the Supreme Court of-the United States determined

that the general condemnation act, 40 U.S.C. �257, was available

to the Secretary of the Army for navigation purposes, remarking

only-that the specific eminent domain act authorizing the

Secretary of the Army did not operate to limit the effect

of the general act of condemnation. Albert Hanson Lumber

Co. v. U.S., 261 U.S. 581 (1923). In 1940, a New Hampshire

District Court held that the.Secretary of the Army could

proceed under either 33 U.S.C. �591 or 40 U.S.C. �259.

U.S. v. 137.82 Acres of Land in Chesire County, 31 F. Supp.

723 -(N.H. 1940). In 1943, a Texas District Court held,

without elaboration, that the special act, 33 U.S.C. �591,

was superceded by the general.condemnation act, 40 U.S.C.

.-S257. U.S. v. 2877.37 Acres of Land in Harris County, Texas,

F. Supp.. 545 (S.D. Tex.-1943)-

-3. 'Park Purposes - Indiana Dunes National Lakeshore:

Within the boundaries of the.Indiana Dunes.National

La keshore, the Secretary of.the Interior is authorized to

acquire lands, waters and other property, or any interest

therein, by donation, purchase, exchange or otherwise.

16 U.S.C. �460u-1.

Implicitin this grant-of authority, is the exercise

of.the power of condemnation. However, in a subsequent

section, 16 U.S.C. �460u-3, the Secretary's authority to

266.

acquire property by condemnation is suspended with respect to

certain improved property used for one-family residential

purposes, with certain other limitations and conditions.

In addition, the act provides that the Indiana Dunes State

Park may be acquired only by donation of the State of Indiana.

16 U.S.C. �460u-1.

B. STATE AND LOCAL CONDEMNATION POWERS:

General Eminent Domain Act:

The- ge@fferal 'emirfeht- domain, procedures are set forth
in I.C. 32-11-1-1 et seq. It provides that any person',

corporation or other body having a right to exercise the

power of eminent domain for any public use, under anystatute,

--existing or hereafter passed, and desiring to exercise such.

power, shall do..so in the manner provided by this act.

It further provides, that-before proceeding to condemn,

the body seeking the property may enter upon it for the pur-
@o'se' of examining and surveying it, and it shall make an

effort to,purchase the land easement or interest.

If the body seeking the land cannot agree,with the owner

with respect to the damages sustained by him, a complaint

for condemnation-may be.-filed in the county in which the

land or other property right is situated. I.C. 32-11-1-2.

After notice according to the act, and the court

being satisfied that the moving party has the right to

exercise the power of eminent domain for the use it seeks,

.267.

disinterested appraisers are named to assess the damages,

or the benefits and damages, as the case may be, and to
make a return. I.C. 32-11-11-4.'

Any party to the action, aggrieved by the asessment

of damages, or of benefits and damages, may file exceptions,

and a trial on the matter of such damages, or,damages and

benefits, is then had. I.C. 32-11-1-8.

The moving party shall ha ve the right to take possession

of the lands so appropriated only upon payment to the court

of the amount of the award'of the appraisers. All other

proceedings may then continue with respect to' damages, or

damages and benefits. I.C. '32711-1-7. If the moving party
!fails to pay the damages-assessed within one year after the

appraisers'',report, and.no exceptions are filed, or if excep-

tions are filed and it shall'fail to pay the damages assessed

upon final.judgment (or upon final action on appeal) or shall

fall to take possession of lands on which it has acquired.

less than fe*e simple title such as easements, and adapted

it to the use for which it was appropriated within five years

after the payment of the awatd or judgment,*, then such moving

party s*eeking.'such appropriation shall forfeit all rights

in and to the real estate or other property as fully and as

completely as though no such appropriation or condemnation had

been beg un or made. I.C. 32-11-1-11.

Any person having an interest in his land which was

taken for any public use without having first been appropriated

268.

may proceed to have his damages assessed under the provisions

of this general eminent domain act. I.C. 32-11-1-12.

2. Special Provisions:

Whenever the Governor of the State deems it necessary

to acquire any real estate on which to construct any public

buildings for the State of Indiana or to acquire any real

estate adjoining any of the lands of the State on which

buildings have been erected, he-may order the Attorney General

to commence a condemnation action. I.C.-32-11-2-1, et seq.

Most units of government, in furtherance of their duties

and powers, have the right of eminent.domain which is exercised

under the general powers set forth in I.C..32-11-1-1. Some

units exer cise their right of eminent domain under specific

powers and procedures granted to it by the General Assembly

including airport authorities, parks and park districts

and Indiana Port Commission. The State Highway Commission

is granted the power to acquire title to rights and easements
in lands as are needed or reasonably necessary for state

highway location, construction and maintenance, including

purchase of areas needed for weigh stations, rest areas,

scenic-easements and other areas necessary to cooperate

with the federal government, or for railroad right-of-way

when such need is conn ected with highway purposes.

See: I.C. 8-13-5-12.

3. Administrative Proceedings:

For some purposes, there exists an administrative condemna-

tion proceeding conducted by the board of public works of a

city for the acquisition of real or personal property for the

269.

use and,benefit of the city or for public streets and alleys.

I.C. 18-1-7-1, et seq. The final determination of assessment

of'damages and benefits by the.board of public works is subject

to judicial review to determine if th e board acted within

the scope of-its powers, if its, action was illegal, or

...if its action was arbitrary.or capricious. Se'e: Slentz

v. City of Fort Wayne, 233 Ind. 226, 118 N.E.2d 484 (1954).

There'is some doubt as to whether this administrative condemna-

tion proceeding may be exercised by towns.. This- administrative

condemnation proceeding is not an exclusive procedure for

ci@ties, and any such city may in its discretion proceed

and effect condemnation under I.C. 32-11-1-l.et seq., the

general eminent domain statute.

C. PUBLIC UTILITIES:

Any cor d under the law of the State of
.pp:rAtion organize

Indiana and authorized.to.furnish, supply, transmit, trans-
port or distribute electrical.@@nergy, gas,,, oil, petroleum,
water, heat, steam, hydrodic,power or communications by

telegraph or telephone to the public, or to construct,

maintain and operate turnpikes, toll bridges, canals, public

landings, wharves, ferries, dams, acquiducts, street railways

or inter-urban railways for the use of the public has the

power to take, condemn and appropriate land or any interest

therein for the purpose and objects for which it was created.

I.C. 32-11-3-1. The procedure*to be followed by such

270.

public utilities or qauasi-public corporations is the general

eminent domain statute.

For the purpose of storing gas in sub-surface strata

or formations of the earth in Indiana, persons or corporations

authorized.to do business in this state and engaged in the

business of-transporting or distributing gas may condemn
sub-surface strata or f6rm'ations"'in lands, and ne cessary
rights incident thereto for the use and occupation of these

lands-as underground gas-s t6rage reservoirs. I.C. 32-11-4-1

et seq, The procedure for such,condemnation is the general

eminent domain -statute.

Inter-state util ,itiesand common carriers regulated by

the Inter-state Commerce Commission or the Federal Power

Commission also.have the right of eminent domain in furtherance

of their corporate purposes.

271.

ARTICLE XIII

SPECI FIC ISSUES

A. INDIANA DUNES STATE PARK:

The Indiana Dunes State Park lies along the south shore

of-Lake Michigan in Porter County from a point east of Dune

Acre's-eastward to a point west of Beverly@Shores. It was

acquired by the State of Indiana under authority-of an act
of the General Assembly of 1'923 I.C. 14-6-12-1 et seq.

The lands Po be acquired were to extend for a distance

of not more than three miles along.the south shore of.Lak e

Michigan, were to include a typical section of the Indiana

Dunes country, and were to include an aggregate superficial

area of.not more than 2,000 acres'.

Under the Federal Act-in 1966 creating the Indiana Dunes

National Lakeshore, a'federal park, it was provided that th e

Indiana Dunes State park may be acquired only by donation

from the State of Indiana, and the Secretary of the Interior

was directed to negotiate with the State for the acquisition

of that park. 16 U.S.C.5460u-1.

I.C. 4-21-8-1 gives the State of Indiana the power to

consent to an-acquisition by the United St ates of America, by

purchase, gift or condemnation with adequate compensation, of

such lands in the state as the United States desires to pur-

@'2 7-2..

chase or acquire for wildlife preserves, forest preserves,

fish hatcheries, or other agricultural, recreational or

experimental uses.

The Attorney General, in an-opinion to the Governor

concerning disposition of the Indiana Dunes State Park,

drew the following conclusions:

I.C. 4-21-8-1 et seq., does not automati-
cally'vest title to any property in the United
States, and unless and until a deed is signed
and executed, title remains in the State of
Indiana. Further, there shall be no conveyance
if such would be considered contrary to the best
interests of the State.
-2. The authority to carry out any conveyance under
this section rests with the Governor of the state
and not with the General Assembly;

3. The United-States could-exercise its power of
condemnation for the purpose of acquiring the
Indiana Dunes State Park only if such power.
were expressly-granted to a department or agency
for the specific purpose of acquiring this park,
and the Attorney General noted that the federal
act concerning*the Indiana Dunes National Lakeshore
does not provide such power. See: 1967 O.A.G. No. 2,
page 2.

At present, the State of Indiana still owns and operates

the Indiana Dunes State Park.

B. THE INDIANA DUNES NATIONAL LAKESHORE:

By an act of Congress in 1966, a proposed Indiana

Dunes National Lakeshore was created and identified as an

area within certain boundaries delineated on a map on file

with the Director of the National Park Service, Department of

the Interior. It was represented by a parcel east of the

Porter-Lake County line, and a larger portion beginning at

a point east of Dune Acres and continuing eastward along the

lakeshore in Porter County to the Michigan City, LaPorte

County eastern boundary, except for the town o f Dune Acres,

the Indiana Dunes State Park and the town of Ogden Dunes.

It contained certain out areas as well.

Established to preserve for the educational, inspirational

and recreational use of the public of certain portions of the

Indiana Dunes, the Secretary of the Interior was authorized

to acquire lands, water and other property or interest therein

by donation or by purchase. 16 U.S.C. �460u, 9460u-1.

The power of the Secretary to acquire property for

the lakeshore by condemnation-was suspended with respect

to all "improved property" located within the boundaries of

the lakeshore during-the times when-an appropriate zoning

agency has in force an approved valid zoning ordinance.

Improved property" was defined to mean a detached one-family
dwelling constructed before January 4, 1965,.together with

so much of the land on which it is situated necessary for

the enjoyment for non-commercial residential purposes.

In no event was the amount of land in each individual case

to be greater than three acres in area, and the Secretary

could exclude from such amount of land only beach or waters

together with so much of the.land adjoining the beach or

waters as was necessary for public access or public use.

27A.

16 U.S.C. �460U-3.

The Act places a duty upon the Secretary to issue

regulations specifying standards for approval by him of

zoning ordinances af fecting property within the lakeshore.

The Secretary shall approve any zoning ordinance or amendment

thereto which conforms to the standards contained in his

regulations. The standards are to include a prohibition

against commercial or industrial use (other than that permitted

by the Secretary), the promotion of the.preservation and

development of the lakeshore, including setback requirements

and the like, and other provisions required by the State of

Indiana. If the zoning ordinances contain any adverse pro-

visions regarding preservation and development of the lakeshore

or fail to have the effect of providing the Secretary with

notice of any variance granted or exception.made to the

ordinance, then As to any-improved property within that

area controlled by such zoning ordinance, the Secretary's

suspension of z@uthority to acquire property by condemnation

shall terminate. 16 U.S.C.�460u-4.

The Act further allows an owner to sell his property

to t.he United States and take.back a right of use and occupancy

for a term of years not to exceed twenty-five. It establishes

an Indiana Dunes National Lakeshore Advisory Commission

and prescribes for.its membership. The Act specifically

provides for the retention by the State of j urisdiction

over police powers and taxing matters as follows:

Nothing . . . shall deprive the State of
Indiana or any political subdivision there-
of of its civil and criminal jurisdiction
over persons found, acts performed, and
offenses committed within the boundaries
of-the Indiana Dunes.National Lakeshore
or of its rights to tax persons, corpora-
tions, franchises, or other non-Federal
property included therein." 16 U.S.C. �460u-8.

The Congressional intent is that the lakeshore shall

be permanently reserved in its present state, and that no

development or plan for the convenience of visitors shall'be

undertaken which would be incompatible with the preservation

of the unique flora and fauna.or the physiographic conditions

now prevailing, but the Secretary may develop for appropriate

public use such portions of the lakeshore as he deems especially

adaptable including trails, observation points, exhibits

and other.areas for public enjoyment and understanding.

16 U.S.C.�460u-6.

At present,.the Congress is considering an expansion

of the Indiana Dunes Lakeshore, and the Indiana Dunes State

Park remains in the control of the State of Indiana.

276.

1. Existing Conditions:

Several power plant sites now exist along the Indiana
shoreline. At the Indiana-Illinois state line, in Indiana,
Commonwealth Edison has its Stateline Generating plant.
Northern Indiana Public Service Company has its Mitchell
Gnerating Station within the City limits of Gary, its
Bailly Generating Station east of Burns Harbor in Porter
County, and its Michigan City Generating Station at Michigan
City, Indiana. All of these generating facilities are
operated with fossile fuels, particularly coal and gas.
In addition to the fossile generating stations at the Bailly
site, Northern Indiana Public Service had received approval
to construct a nuclear plant, which construction has been
delayed for many years by litigation, discussed below. As
noted before these public utilities have the power of eminent
domain to carry out their duties of public service.

2. Bailly Nuclear Plant:
In 1970, Northern Indiana Public Service Company (NIPSCO)
filed with the Atomic Energy Commission (now replaced by
the Nuclear Regulatory Commission) an application for a con-

277.

struction permit and operating license for a nuclear facility

to be constructed on the company's Bailley site on the

southern shore of Lake Michigan in Porter County, Indiana.

The site consists of 350 acres in an L-shaped tract facing

Lake Michigan immediately east of the Bethlehem Steel and

Burns Harbor facilities and west of the National Lakeshore

bou ndary and the Town.of Ogden Dunes. The AEC, by action

of-its Atomic Safety and Licensing Board and Appeal Board

authorized and affirmed the issuance of the construction

permit in 1974. On appeal for review to the Court of Appeals

of the 7th Circuit, the Court held the AEC decision to be

unlawfuland set it aside. The Court concluded that the

AEC did not comply with its own applicable regulations and they

were binding upon it Izaak Walton League v. AEC, et al.,

515 F.2d 513 (7th Cir. 1975).

The Supreme Court,of the United States granted

certiorari, reversed the decision, and remanded it to the

Court of Appeals for consideration of other contentions.

against the issuance of the construction permit.not then

decided. Northern Indiana Public Service Co. v. Izaak Walton

League, 423 U.S. 12 (1975). The Supreme Court, contrary
to the Court of Appeals interpretation, found that the AEC

had correctly interpreted a definition of "population center
distance," as one to be measured from the nuclear site.to

a demographic boundary, rather than to a political boundary.

Upon such definition, the Bailly Nuclear Site was an acceptable

278.

distance from such a center, as required by the regulations.

Upon remand to the.7th Circuit, the Court of Appeals

held the AEC's order valid and denied the petition for review.

533 F.2d 1011 (7th Cir. 1976.). The Court considered and

rejected, as being without merit, the petitioners' arguments

that the AEC failed to give sufficient weight-to the density

of population.surrounding the B,ailly site, failed to comply

with the requirements of the National Environmental Policy

Act, failed. to give adequate consideration to alternate

sites,.and failed to properly evaluate cost-benefit analysis.

The more significant issue'detbrmined-by the--Court

of Appeals was the threshold problem of the jurisdictional

dispute between the Atomic Energy Commission on the one

hand 'and the Department of the Interior on the other. The

petitioners argued that the Baillyplant would encroach

on adjacent Federal lands- administered--by the---Department

of'Interior, in this instance the Indiana Dunes National

Lakeshore which abutted the property on which the plant.was

to be constructed. The petitioners claim ed that where the

United States, through its Department of Interior, is entitled

to equitable relief against the use of privately owned pro-

perty which is detrimental to ad joining government property,

the AEC approval is barred.. The court first noted that

the Department of Interior had not advanced such a contention.

Second, the court said:

279.

"While AEC's authority to issue licenses and
construction permits should be reconciled
to the fullest extent possible with the
interest of the Department of Interior in pro-
tecting the National Lakeshore, nothing in
the authorizing legislation for either agency
suggests that the Department's views on the
advisability of an adjoining nuclear facility
are to be controlling. AEC has considered
the Department's comments, and has given
attention to the environmental effects of
the Bailly plant upon the National Lakeshore,
as the law requires. It has concluded that
with the restrictions and control it will
impose as conditions to approval of the con-
struction permit, .-. . the environmental
impact of construction and operation of the
nuclear plant will not be substantial enough
to require disapproval of the site. This
was a determination the agency had authority
to make." Izaak Walton League v. AEC, supra,
(7th Cir. 1976).

Anticipating the drawing of an inference that the Department

of the Interior could not seek such equitable relief, the

Court answered a related argument by, intervenor State of

Illinois contending that extension.6f,the exclusion-area

surrounding the site into the National Lakeshore is incompati-

ble with the Interior's mandate to preserve the.Indiana Dunes,

by stating:

"The exclusion area, however, will not extend
into the lakeshore area."

(Ed. note: from this 1976 decision of the 7th Circuit,

the petitioners filed a petition for certiorari. with the

Supreme Court of the United States, which petition was denied

on November 8, 1976.)

3. Future Siting of Power Plants:

Northern Indiana Public Service Company supplies

280.

the electrical power needs in Northern Indiana, a service

area comprising 12,000 square miles and containing a popula-

tion of over 2,0001000. Although service is supplied to

consumers in 21 counties, the substantial supply load is

concentrated in the heavy industrial area of East Chicago,

Whiting, Hammond and Gary.

The final.detailed environmental statement issued

by,the United States Atomic Energy Commission in February,

1973 contained a projection of future power needs in the

area served by NIPSCO.

The-projected peak.load requirements would more than

double in the decade of the 1970s. With the increased

generating capacity from the Bailly Nuclear Station, internal

generating capacity, and some purchases from neighboring

utilities, would be sufficient to meet the peak demand with

the desired percentage of reserve.-- Without the Bailly

Nuclear Station on line, reserve power would be minimal.

The AEC affirmed the finding of the Federal Power Commission

that dependence on the alternative of purchasedpower is not

desirable for NIPSCO in its place among the inter-connection

network-of electrical power systems operating within the

east-central area of the United States.

The Bailly Nuclear Station, once constructed, will not

go on line until sometime in the early 1980s. The extended

litigation has created two major cost additions to the

nuclear plant;.one, the cost of litigation itself and two,

28.1..

the multi-fold increased cost of construction. The environ-

mental considerations are equally significant away from

the shoreline as they are at the shoreline, particularly

where a discharge is required into a watercourse. The ecological

disturbances may be greater where the discharge is into

a small body of water as opposed to a large body such a

Lake Michigan.

The totality of these matters brings into sharp focus

-the battle lines drawn between the nation's need for energy

resources and the nation',s need for protection of its environ-

menti,

After reorganization of the Atomic Energy Commission,

the Nuclear Regulatory Commission was specifically authorized

to make and keep updated a national survey of possible
11nuclear energy center sites'! in cooperation with other'-

interested-fedetal, state and 'local- agencies.-----42 -U.S.C--. 95847(a)

The licensing,of fossile power plants is reposed in the

Federal Power Commission. 16-'U.'S.C. 9797(e). In the future,
it may be required that a pre-qua'lification of*power plant

sites be undertaken by federal and'state agencies, rather

than by the utility-company itself. In this manner, the

public interest with respect both to national defense and

.protection of the environment can be first weighed, considered

and determined.

282.

ARTICLE XIV

ANALYSIS AND CONCLUSION

"Congress realizes the coastal ecology is
endangered by poorly planned development."

So wr ote Judge.Kretzman in United-States v.- Holland.

With due recognition...to the dangers to the coastal zone from

poorly planned water and land related developments, are.

current federal, state and local laws sufficient for coastal

mangement under the act?

They would appear to be so with respect t o water and water

related activities. They would appear to be somewhat deficient

and diffused with respect to land and land use activities.

The powers of the Department of Natural Resources

of-the State of Indiana and the powers exercised by federal

,and state agencies under the Water Pollution Control Act

Amendments of 1972 appear to be a substantial base to manage

water and water related activities in the coastal zone.

The authority-to control land use, and in particular

zoning, is exercised by local units of governmentsuch as
cities, towns and counties una@rq_ enab :.i ing statut'es'o'f'the State.
Along the coastal zone, the allowable uses range from-heavy

xndus.trial to park,and recreation.- The uses now allowed by

local units of government, which consider the needs of

283-

industry, commerce, residential development and recreation,

should.further consider the short and long range-consequences

of--these'uses upon the coastal zone as ultimately defined.

if new or additional legislation is necessary to

deal with land use as it relates to the state and national

-in terest in managing, protecting and developing the coastal

zone, certain preliminary policy decisions must be made.

The boundaries of the coastal zone must be determined. A

narrower definition may require less extensive management

-tools than-would-a broader definition.- Whether local,

regional or state bodies--shall- administerguidelinas established

for the coastal zone is another policy decision which must

be determined.. There appear to be sufficient existing govern-

mental. units to administer a common program.-

Although there are-vakious agencies and different

governments who have powers-and exercise authority-in the.

area of the coastal zone, they appear to work cooperatively

.and harmoniously, each seeking to reduce the duplication of

services where possible. Notwithstanding, .additional data

should be acquired through interviews with representatives

of agencies and bureaus to determine existing institutional

methods each has in dealing with areas of concern in the coastal

zone.

The Great Lakes region is a basin and the action or

inaction by sister states.has an imp4ct.upon the program of

the State of Indiana. method for coordinating the programs

284'.

of the-,Great Lakes states and for adopting consistent legisla-

tion is important.

Additional -legal research'should seek to identify

new techniques-F-both legislative'and administrative, which

will give full consideration to the ecological, cultural

and aesthetic values in the coa stal zone as well as the

needs for ec onomic development.-

This report is intended to provide'the coastal zone

mangement team, its technicaland advisory groups, and its

principal planners with a fair exposure to the body of law

relating-to the-coastal zone,

There-is no conclusion to the report or to the process.

The present law is dynamic in its application and interpreta-

tion. New law and new leg al thought change points of view

or points of impact almost-day by day. The law, as it now

exists-- or--as.it is developed,-,can-be-made-to serve the needs

and interests of coastal zone of Indiana.

285...-

092165