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I @.II I .II , t1l,"", 1, ---,.@, .: .:, .,..-,:,,@@@-.-- . ,:,.I< -, . . .,. .,@,-.- I,--,,@--@.(.".@-. @@.@ . .@-11 ,. . .I ,@' ,.,-:;:@ @,. -,..- -,.@-,[email protected] IIIII-I-1..@@.. @%nl ,., _ @--::@@ L. --,@,@'..@jI-'[email protected],-, .,[email protected]. I-. I. . @ .I,1-- @0..I.@II- @-,-- -,- .. I" , ,--,- ,I.., [email protected] i-@@I.-.I@ .I ..@- - ----@ . .-.1.@- @, -1, - -, -:-.-@ -I@a,@,-,-,m:4;@,--*, ,--,,-@@,,--.,[email protected] , @..*, @@ ,.*- ,; -,,.., ,-..@I -,@V, ,@ -,,-:--... ,,-S.11- -@,, ,11,---;--; ,@" - -,I-1.I. -;@@,,.-r? -1. -- [email protected]@..-Ii..I.;I.I @, r@.,,,z@,@--. '--'-, -, -;-@--.,,,. .1 ,.-.@@ '.,@::@@:- II I @,. -:.,,,- -- @@,:@. -, -,I@.... .i@-,,-:i- .1.-. [email protected] I,:@-. .,..I,-,-I,-.11.-..I.,.II I.., [email protected] .. ..@,.1 --@@i,@.II ,@ ..-7,@..@,.,@:-I,..@-@@,,:..I-..I .-@ -,,.@If-@,@.1.-.-.--.-.. : @,, - .- . :I @. I- .@@.@ I I.@, _.4; @...."II- .,i ,.@v-,@-,:-@:---,.-, . 11- I @@ . I- @. .-I-. @. - -.-X",I-.1-I.-.@I ..I@ . .,--, HT !;,i,- @I .. -@... ..I..I .I-. . @@- .I - -,-,(I- I@ -@"- " .1 -, I :@,@-I.i.,.. %.... ,.1 -1- 392,"-,@ ' L%,..1.@II-.. - :@@I: I ",@II-II. ,* .I - I@II 11I. -..366 @, @,.,,, .,-...,,...I......-.. @ / -!@ 51 I j i , i I i ,--@, - @@, -,.---I I. n. @@-I..@- ,[email protected] !.11,. @@ @,.1975 @,-,,-,- , [email protected].,...-.:- -@ ,,..-.- 1. @@ @ @..,, @, ,.,f .1) ;:,.::11 ,@.rr-.I-1@I.. 1. [email protected], :,@ -1 ,@,.: . [email protected] -. .II. .III .@ I I I..-.. . I -, ,- -.I- @@ 1, 1@ I:---@.. --!,,@!,,I-:-@,,-. ,@,-:--@Iz--@I .. .--I.-- - .'@@I. II."-77 -@. @. .- -..@....,11 I--@. , ,;,.,@ 41 -,-"., [email protected]. .11 W7i A, [email protected]@Z, - -"@@,@@. *--.1 @.I-.I [email protected]... .1-. . 4 -,@,-@[email protected]. ,. I.,-- @ .I a'- ''�i"', 11@-li@ I [email protected] I@ I'.'L@i @,-:II-1.@ .-'t" ,@ . , rI @,. I,.,,.I.@ . @@[email protected]@@ . .,"? ,[email protected] .@ -, ;.,.- - @.-,,.-,-@; ,@.I-.. I --:, , "*4k, - -@,,,.@,-,, - I,,--,,, I , @:.. ,@ ,.: -@II, ". , ,,@.- -- .,@ --, -. "N I,. .i :. , ,, 1, W,-. ". - .., ,,"" ,-@I [email protected] - @., ,11 :@ ,,@,.:@@ lt?@!@;@7-,`.: @:@-i m-, :-I@,, @,, ,@ --,--I @I..@,,,., @ -`@-,,--- -- @1@I@. brilTED STATES DEPARTMEWT OF COMMERCE iA Wational Oceanic and Atmospheric Administration Rockville. Md. 201352 May 20, 1975. MEMORANDUM'FOR:., State Coastal Zone Management Contacts Boundaries of a Sta+e's Coastal Zone SUBJECT: ..In response to state requests for more detailed information on coastal zone boundaries, OCZM is forwarding.the following information: 1) Inland.Boundaries of a State's Coastal Zone, Office of Coastal,:,Zone Management, NOAA, RockMle, Rd., May, 1975 2) Tidal Datums and Mapping Tidal Boundaries, Wesley V. Hull and, Cart 11. 1. Thurlow, National Ocean Survey, NOAA,, Rockville, Md., April 1975 03) Legal Aspects of Tidal Boundaries of the Coastal 2onel Edward D. Evans, Jr., Office of the Ceneral Counsel, NOAA, Rockville, Md., May, 1975 The 'Use and Lea-"I Significance c f the Mean High Water Line. in Coastal Boundary Mapping, Frank, E. .:Maloney and Ri,chard -Ausness, The North Carolina Law Review,,53 P), Dec. 1974 5) Boundaries of the Coastal Zone: A survey of State Laws,. J. Michael Robbins and Marc J. Hershman, Coastal Zone .@-Management Journa'l 1 _(3), 1974 1nIand Boundaries of a State's Coastal Zone is the third of a series of policy papers by OCZM. The previous two were on the National. 7 Interest and Segmentation. This paper includes requirements ,,, f the Act and Regulations pertaininq@ to the Act, a-set of principles to -a-discussion of acceptable t __@be @fol lowed in delineating boundaries, ypes of boundaries and a brief list of recom-mended references. We had hoped to be able to.include_ with this mailing similar papers on permissible -uses and excluded federal lands,. but delays were encountered so they will not be completed until June or July 1975. The "Legal Aspects" and "Tidal Datums" papers .,were prepa red. by other NOAA. el tments on request of OCZM as part of our Technical Support cooperative efforts. They, are self-explanatory. The enclosed two journal articles arefor your information. You may also want to review some of the,feferences cited at.the end of the 6,141 16 r "Inland Bounda ies paper, especially Coastal Zone Management The Process of Program Development. As the.-States' coastal zone management program's evolve, .,so do.our concepts of boundaries and other requirements of the Act. It is in this light that the Inland Boundaries policy paper was prepared. We hope that it and the other papers and referenc,es-encl-os-ed will be hel pf ul Your response to these papers i s requested... As al ways we would like to know how we can be of further' 'assistance to you. Paul R. Stang 'Technical Coord n i ator Office of Coastal Zone Managment Enclosures INLAND BOUNDARIES OF A STATES'S COASTAL ZONE MAY 1975 The Office of Coastal Zone Management The National Oceanic and Atmospheric Administration U. S. Department of Commerce MY 1W3 INLAND BOUNDARIES OF A STATE'S COASTAL ZONE This policy paper by the Office of Coastal Zone Management addresses inland coastal zone boundaries. It includes requirements of the CZM Act and regulations'pertaining to.the Act, a set of principles to be followed in delineating boundaries, a discussion of acceptable types of boundaries and a brief list of recommended references. REQUIREMENTS The Coastal Zone Management Act of 1972 requires states receiving program development grants to identify those boundaries ofthe coastal. zone subject to its management program (Section 305(b)(11). In addition, the Act identifies the parameters which a state must use in identifying its boundaries by definingthe coastal zone as the "coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and ther and in proximity thereunder), strongly influenced by each ok. to the shorelands of.the several coastal states, and includes transi- tional and intertidal areas, salt marshes, i,.retlands, and beaches. The coastal zone extends, in Great Lakes taters, to the international boundary.between the'United States. and Canada and, in other,areaS, ..seaward to the outer limit of the state's territorial s-eas. The zone extends inland from the shorelines only to the extent neces- sary to control shorelands, the uses of which have a direct and significant impact on the coastal vraters. Excluded from the coastal. zone are lands the use of which is by law subject solely to the :discretion@of orwhich is held in trust by the Federal government, its officers or agents." (Section 304(a)). Regulations pertaining to program development grants (15 CFR -920.11) indicate that: 1) states may wish initially to delineate a planning area whic'h 'is generally larger than, and encompasses the area -ultimately identified as the coastal zone. This is suggested [email protected] a possible means of taking advantage of data, programs and institutional boundaries (such as counties or area wide agencies) that cover geographic areas larger than the eventdnal coastal zone designation.. It is also suggested as a.means for taking into account existing developmental, political, and adminis-trative conditions, as well as biophysical processes'. that may be external,:to' the coastal zone eventually'selected for direct management control; 2), states are encouraged to take early and continuing account of existing Federal and state land/water use and resource planning programs in determining their coastal zone; and 3) states having excluded Federal lands in the coastal zone must indicate the manner in which they will coordinate with those Federal officials administering such lands in the development of their management program. The regulations applying to program administrative.grants (15'CFR A23.11 indicate that,a state's management program must show.,evidence Uat the state has both developed and.appli,ed a pro- cedure for identifying.the boundary of its coastal zone. These regulations require that, at a minimumS this procedure, when ap- plied to the-landward boundaries, should result in: a determi- nation of the inland boundary required to control, through the management program, shorelands the uses of which have direct and signi-ficant impacts upon coastal waters; 2) an identification of transitional and intertidal areas,.salt marshes, wetlands and beaches; and, 3) an identification of all federally owned lands, or lands which are held in trust by the Federal governMent, its,officers and agents, in the coastal zone and over which a state does not exert any corstrol over use. These regulations indicate the acceptability.-of a-boundary wkich is delineated by a strip of land of uniform depth.(e.g., 250 feet, 1,000yards, etc.) or by political boundaries, cultural - features, praperty lines or existing designated pl anning and environmental control areas, with the condition that any such bound- -aries include-a.nd be limited approximately to.those lands which any existing, projected or potential uses-which would have a %direct. and significant impact upon coastal waters. @.PRINCIPLES As states have begun to define their coastal zones, questions have surfaced regarding the.acceptability of multiple,or,"tiered" boundaries which are drawn to.include various functions or levels@ of control. Questions-have been raised concerning the me-ani-ng Gf the clause which indicates that the policies, objettives and :--Controls called for in the management program must becapable-of being applied consistently.within the boundaries. Also some tion of the questions have been raised concerning the interpreta excluded Federal lands clause. To help answer these questions, OCZM has developed the following set of principles which will pro-. vide guidance to states with @yqard to,acceptable delineations of landward coastal zone boundaries. Following the principles are@three categories of acceptable boundaries. 2 All shorelands, the uses of which have a direct and significant @impact upon coastal waters, must be included within the landward boundary. Al:though stated-in the Act and Regulations, the above principle is placed first for emphasis. Regardless of the type of boundary which a state or territory (hereinafter referred to as a state) chooses to delineate its coastal zone, compliance with this prin- ciple is fundamental. Transitional and intertidal areas.' salt marshes, wetlands, and beaches must be included @.jithin a state's coastal zone. These areas are the most productive, -but frequently the most endangered areas of a state's coastal zone. In accordance with the.Act and Re'gulations.pertaining to the Act, great care must be given to the management of these areas and consequently it is mandatory that they be included within a state's coastal zone boundary. A state's coastal zone must exclude@ the lands the use of which is FY law subject solely to the discretion of, or which is held in trust bythe Federal govern-went, its officers and a,,,ents.__ The state must indicate those Federally ovined lands, or lands held in trust Fy-the Federal governr.,ient, and over which the state cannot or does not exercise jurisdiction as to use. In a cas-e where a state does exert a form of jurisdiction as to use over Federally owned lands, and the uses of these lands are determined to have or potentially could have a direct and -significant impact on coastal waters, such.lands should be considered part of a state's coastal zone and,thus included within the coastal zone boundary. To further clarify the issues relating to excluded Federal lands, OCZM is preparing a paperon this subject. The state must be capable of applyingthe policies, objectives in-d controls of its coastal zone management proqram consistently within the entire coastal zone, or consistently within each "section", in cases where the coastal zone is div-ided into "sections" 55-1tiple boundaries. -States may desire to designate several boundaries within their coastal.zone. Within,each boundary, the state must be capable of applying its coastal zone management program consistently. Such boundaries must delimit land and water areas in which a state's coastal zone management progr@m may be administered.in a manner which is not.arbitrary. 3. Final inland. boundaries for program approval must be determined after a, c I ea r I y d ef i;n2e-d and documented procedure, which i@ncarporates P2-M-issible uses and areas of particular concern, has been applied. The boundary of a state's coastal zone cannot be merely the result of, an arbitrary determination but rather must take into considera- tion the direct relationship that exists between the requirement for determining inland boundaries and the requirements for determining permissible land/water uses and areas of particular concern. By definition, the coastal zone "extends inland from the shorelines -ecessary to control shorelands, the uses of which only to the extent r have a direct and significant impact on the,coastal waters" (Sec. 304 (a)). Coastal zone management therefore, requires controls on all uses that have direct and significant impacts on coastal waters. It logically follows that before a State can determine the i.nland boundary-for management purposes, it must determine which uses are to be' controlled and locate.them. The process by which this can be ccomplished is described in 15 CFR 923.12--Permi ssi bl,e'l and and a water uses. This process is more thoroughly explained in the permissible uses paper which OCZM is developing. The identification@ofuses and.the incorporation of them within the boundary would appear to be sufficient to delineate the inland and-fulfill the mandate of the Congressional definition. @@However, there is one other requirement (areas of particular concern) may -hat boundary based on "use" which in some instances exceed parameters and would therefore require considerationin boundary determination. Any of the eight areas of particular concern listed in 15 CFR 923.13 would normally be located within the boundary, be it water, transitional area, or inland side as defined above. Nevertheless; there may be areas in which the chief values lie in their recreational, cultural or scenic importance, but the uses of which do not have a direct and significant impact,on the coastal waters. If compatibility of uses is desired to protect those qualities and the integrity of the system, then that area could be included. as well. While it is up to the State to determine what is considered an.area of particular concern, the Act states that those areas must be "within the coasta1zone" (305(b)(3)). After the inland boundary has been determined in light of the above considerations, it shoul*d be delineated on maps of an appro- priate scale. A more thorough discussion of the interrelationships between CZM program requirements of boundaries, permissible uses and areas of particular concern is documented in Coastal Zone Management: The Process of Development by the Coastal Zone Management Institute. .4 TYPES OF ACCEPTABLE INLAND BOUNDARIES In.light of the above principles, OCZM has determ ined that three types-of approaches are acceptable.for delineating a state's inland coastal zone boundary. These are: 1) Biophysical A biophysical boundary can be jefined'in terms of natural features, be they biological, geological, physica'l,.or a combination. These features can include drainage basins, flood plains, dune formations, ecosystemsS ridges of coactal mountain ra 'n9es, etc. The use-of a. single biophysical feature for boundary delineation may not be adequate to insure that all uses with direct and significant impacts on coastal waters are included. Often a combination of features may be most practicable. While this type of boundary would meet the intent of the Act with respect to uses of shore lands which have impacts upon coastal waters, difficultiesmay be encoun- tered in establishing methods for the required effective management control of uses. Delineation based on biophysical features may require expensive and time-consuming surveys to locate and designate these boundaries. In addition, periodic Che 1,oundary location may be necessary as natural 4 update of features upon which it is based are often subject to change. 2) Biophysical as a base for administrative One method of circumventing some of the difficulties assoc- iated with a strictly biophysical boundary is the designation of an-inland boundary along a set of existing, easily located lineaments which approximate natural features and include all necessary land areas. Once the appropriate biophysical delimiting features are identified, any number of political boundaries (county, township, municipal lines, SMSA's, etc.); cultural features (highways, roads, canals, etc.); existing designated pla' s (e cts); nning area g., census enumeration distri property lines; environmental control areas; and other such administrative or.cultural features could be used as bound@ry lines. Boundaries designated in this manner should include@, and serve as adequate approximations of the selected biophysical features and should enable more effective state control over the designated coastal zone than the biophysical boundaries they approximate. To meet the intent of the Act, the rationale for designation of such administrative boundaries must be clearly specified in light of uses which have impacts on coastal-waters, and theie control'. In designating such ad-. ministrative boundaries, 'states shduld exercise caution to 5 insure that the delineated area is. 'not so extensive that a fair application of the management program becomes difficult or impracticable., 3 A multiple boundary can serve,as an effective mechanism by,-which states can meet the intent of the Act while incorporating the provisions of existing state programs and regulations. Multiple boundaries may delineate a combination of specific sections or zones of coastal land on different fu'nction and resource bases.such as: areas of particular concern (areas of cultural. value and scenic importance, areas of urban concen- tration, areas of unique geologic significance to industrial development, etc.); permissible uses (non-polluting recreation, industrial development, etc geological or biological features (marshes, estuaries, dunes, etc.); air and water controls- (e.-:9., areas designated under the Clean Air Act of 1970, as Amended); and other functionalbases (e.g., estuarine sanctuary)., Multiple boundaries could also be designatedon a basis of intensity of controls. The strongest and most direct control would normally be exercised in the zone or "tier" adjacent to the waters edge. Generally, but not always, the ..degree of control would decrease in each succeeding zone landward. In any case, the controls in a particular zone should be appro- priate for exi'sting planned or potential uses of the land and water within that zone. Examples of such multiple boundaries based on intensity of controls are: uniform distances measured horizontally from the shoreline; inland coastal county lines; and corporate limits of coastal communities. States may find that a combination of these types of boundaries (one or more based on function or resources, and one or more based on intensity of control*s) may be best for their coastal zone. Multiple boundaries can delineate zones which physically overlap or are adjacent to one another. The landward-most combination of boundary lines under a multiple approach would be the limit of the.state's coastal zone and consequently, the landward-most area in which the provisions of the Act are exercised. Controls may rely heavily on carrying' capacity concepts as well as existing regulations whether local, state or federal. 6 It should be noted that while multiple boundaries may well serve to fit into existing regulations'-or requirements of the CZM Act, complications in administering the states' CZM program may be encountered due to the subdivision of the coastal zone. For example, adequate controls for pro gram management.may be incorporated into state laws for'a strip of land of uniform width along, the coast or for a state's vietlands; but state regulations may be inadequate to control areas.within the next "tier" landward. In this case new legislation, modification to existing legislation or an ad- ministrative integration of applicable local, state and federal laws and regulation-,, may be required. ..General Guidance It should be understood that these three categories represent basic conceptual approaches to boundary determinations. They are not mutually exclusive (for example, it is clear that the,biophysical type could delimit one of the "sections" in the multiple type). Consequently, it is not intended that a state should feel obliged to pickonly one of these approaches; rather, some states may well choose.a combination of these categories. Other approaches which follow the above principles will be considered and may be approved. RECOMMENDED SELECTED REFERENCES Pertaining to Coastal Zone Boundaries: Coastal.'. Zone Mana.gement Act of 1972 (Public Law 92-583$ 86 Stat. 1280) Coastal Zone Management Program Development Grants Re�ulations (15 CFR 920.11), November 1973 Coastal Zone Management Program Approval Regulations (15 CFR 923.11), January 1975 Coastal Zone Management The Process of Program Development The Coastal Zone Management Institute, Sandwich, Ma. November 1974 (Note their bibliography!) The Use and Legal Significance of the Mean High Water Line in Coastal Boundary Mapping, Frank E. Maloney and Richard C. Ausness, The North-Carolina Law Review Vol., 53, No. 2, December 1974 Boundaries of the Coastal Zone: A__Survey of State Laws T Michael Robbins and Marc-, J. Hershman, Coastal Zone Management Journal, 1 (3), 1974 7% Shore and Sea Boundaries, Vol. I and II, Aaron L. Shalowitz, Department of Commerce, Washington, D. C." April 1964 Tidal Dat ums and Mapping Tidal Boundaries Wesley V. Hull and Carroll 1. Thurlow, National Ocean Survey, National Oceanic and Atmospheric Administration, Rockville, Md. 1975 Legal Aspects of Tidal Boundaries of the Coastal Zone 1dward D. Evans, Jr., National Oceanic and Atmospheric Administration,'Rockville, Md. 1975 Pertaining to biophysical, aesthetic, land use'and adminis- trative considerations relevent to boundary determination: a Land Subdivision Reaulation.- Policy and Legal Con- siderations for Urban.Planning Richard M. Year wood, ..-Fraeger,Publishers, New York, New York, 1971 Land-Use Controls Annual 1972 Frank S. Bangs, Jr., Ed. American Society of Planning Officials; Chicago, 111. 1973 Design with Nature Ian L. McHarg, Published for the American 1,11useum of Natural History, Doubleday & Co., Inc. Garden City, New York 1971 Environmental Geology - Conservation Land-Use Planning and Resource flanaQement Peter T.. Flawn, Harper & Row, New York, New York, 1970 Terrain Analysis - A_Guide to Site Selection Using Aerial Photographic Interpretation Douglas S. Way, Dowden, Hutchinson and Ross, Inc., Stroudsburg, Pa., 1973 Effects of t4atershed Changes on Streafflow Walter L. Moore and Carl 114. Morgan, Ed., University of Texas Press, Austin, Tex., 1969 Coastal Geomorphology Donald R. Coates, Ed. -'A Pro- ceeding of the Third Annual Geomorphology Symposia :@_Series,- 1972, State.Univers'ityof New York, Binghamton, New York, 1973 Coastal Ecosystems Ecological Considerations for M@nage-_ ment of the Coastal Zone John Clark, The Conservation Foundation, Washington, D. C., March." 1974 TIDAL DATUMS MAPPING TIDAL SOUKDARIES Wesley V. Hull Commander, NOAA Chief, Coastal Mapping Division and Carroll I. Thurlow Chief, Tides Branch Oceanographic Division U.S. Department of.Commerce National Oceanic and.Atmospheric Administration National Ocean Survey APR Wlb INTRODUCTION Effective management and conservation in the coastal zone depends largely on the, determination of. the boundaries. Once the coastal zone has been defined, the arduous task of mapping the boundaries must be undertaken. The most difficult boundaries to determine and map are the mean high and, l.ow water 1 ines or the appl icabl e water 1 evel datums These boundaries are the most significant and.probably the most important boundaries.in the coastal zone. In most of our coastal states, the mean high water line forms the boundary.between sovereign and upland subject to private owner- ship.,,. The mean low water line forms the baseline from which the territorial sea a nd contiguous zone are measured. This paper describes tide characteristics, acquisition of tidal data, and procedures.and methodology for demarking and mapping tidal boundaries. ChakacteAi-6tin c6 the 'ride Tide is the name given to the periodic alternate rising and falling of the surface of.the sea occuring, on the average, once (diurnal tide) or twice (semidiurnal tide) each tidal day (24.84 hours). The periodic tide is caused by gravitational interactions of the moon, the sun, and the earth. The effect of these forces depends upon the relative positions of the three bodies at a particular place. Con- sidering, th n, that: A. The earth rotates on its axis about once every 24 hours and, its Journey around the sun takes about one year; that B. The moon.revolves around the earth about once every 29 1/2 days (new moon to new moon), and, its orbit is inclined at a varying angle to the earth's equator; that C. Every body of water has its own period of oscillation, and res@onds differently to the tide producing forces; and that D. All -of these factors, together with the configuration of the land bordering the water areas, bottom configuration and friction, differing propagation rates, and viscosity, enter into the formation of the tide. There is.present an almost limitless number of possible combinations in which these factors can unite to cause: (1) the range and time of the tide@to vary from day to day at the same place; (2) the mean range and time of the tide to vary from place to place along the coast; and (3) the character of the tid&to be different at widely separated places. 2 The degree ofthe rise and fall of the water surface is also influenced by winds and barometric pressure,., etc. The meteorological effects are erratic and often unpredictable. The meteorological effects of the tide average out over,11ong periods, however, and their total effect, on the tidal datums, determined by long-term tide observations, is negligible except in some special case, such as where the astronomical forces pro- duce a very small range of tide compared to the movement of the water by the wind. Ti&Lt Datum DeteAniinations A tidal datum is a point of reference for elevations determined from the rise and fall of the tides. Various tidal. datums may be derived, and each is desig6ated by a definite name, such as mean high water, mean low water, mean tide level, and mean sea level. Mean high water is defined as the arithmetic mean.of all high water. heights over'a specific 19-year period. The 19-year period coincides with the long term soli-lunar cycle. It is a phase cycle of 235 lunations and includes the annual variations. In addition, and most significantly, it includes the "Node Cycle" of approximately 18-61 Julian Years required for the regression of the moon's nodes to com- plete a circuit of 3600 of longitude. This is a declination cycle including major periodic variations in the rise and fall of the tide. Similarly, mean low water is the arithmetic mean of all low waters for the same period. 3 Mean tide level is the arithmetic mean of all low waters and all high waters. over a specific 19-year period. Mean tide level is exactly halfway between mean high water and mean low water. Mean sea level is the,. a ri thmeti c mean of all of the hourly readings of.the water heights for a specific 19-year period. Mean sea level and mean tide level differ slightly because the method of computing the two datums is different. They will vary only a few hundredths of a foot when determined from long-teril observations. The tidal datum of mean sea level, mentioned above, should not be con- fused with the National Geodetic Vertical Datum of 1929 (formerly the "Sea Level Datum of 1929") This is, a geodetic datum which, a1though it was origina.lly based upon the tidal datum of "mean sea level is not coincident with the true mean sea level of today. Tidal datums do not form equipotential planes, either along the shoreline or, most significantly, within the estuaries adjacent to the open coast. Changes in tidal datums.will vary with changes in topographic and hydro- graphic features, and the degree of difference wi-11 depend upon the extent of the physiographic changes mentioned above. 4@_ To determine the number of tide gage sites for a given area, a study has to be made of the shoreline configuration and the hydrographic features. The cost for a tide ga@e installation will vary from a few hundred 'dol 1 a rs to several thousand,, "6pending upon the amount of -construction required due to the local conditions and accessibility. 4 As it is neither practical nor reasonable to measure tides for 19 years at every point.where the physiography of the shore changes, a method is used.Ao compute the equivalent of the 19-year value from shorter series of measurements. This method involves the comparison of short series of measurements with simultaneous observations* from a suitable location where the 19-year value has been determined (control station). The accuracy with-which the. mean values can be determined from a short series of measurements depends on the suitability of the control.station and the duration of the short period of measurements. Tide observations Are made with a self-recording gage. The float well of this gage is arranged so as to dampen the effect of wind waves, causing the gage to measure the height of the relatively still water surface. A tide staff, graduated in feet and tenths of feet, is mounted vertically n@ar the gage and set so that the water's surface never rises above the* top or falls below the bottom of the staff. The staff is used to calibrate the gage record, and it also provides the means to transfer the elevations of the tidal datums to permanent bench marks on the shore. Once a tidal datum has been determined and properly referenced to bench marks, it is (for all practical purposes) considered fixed and can be recovered for future use. The-National Tide. Observation Network consists of about 130 tide gages at this time. 5 SuAveying_ a T,@dat Soundaty In order to demarcate or to map the tidal boundaries, such as the mean high water line or mean low water line, the surveyor or engineer should follow these procedures: A. Obtain tide information at or near the property; B. Recover the tidal bench marks and runa closed line or loop of differential l6velsJrom the bench marks to that part of the shore where the boundary is to be located, run levels along the shoreline, and mark or stake points at intervals along the shore in.such a manner that the ground at each point is.at the elevation of the tidal datum. C. If.,the boundary is to be mapped, the horizontal distances and directions, or bearings, between each. of these points and betwee6 those points and other features in the area, and/or-between the points and horizontal control stations will have to be measured so that the boundary may be plotted on a plat or map to the exact *scale ratio and in true relation .,.to other boundaries on the property and/or to the state coordinate system. There are a numberof variations in procedures available to the surveyor, but the steps listed above explain essentiAlly what he must do. The transfer of tidal datums. from one area to another is. generally not an acceptable practice because the difference in tidal datums. is not nec'essarily linear as a function of the distance separating the stations. Consequently, published elevations of bench marks in the geodetic network 6 should not be used directly for the transfer of tidal datums unless the necessary correction facto@s required for local boundary purposes have been de@ermined. InteApotated WateA Etevation Inan area where a tidal datum exists at two locations, an interpolated value for points between these locations may provide adequate information for demarcating the mean high water line. An interpolated water elevation (IWE) may be established and used if the time and range differences at two adjacent tide stations on the same body of water are acceptably small. The observations and inter- polations are made at a time of mean high water or mean low water, not during a period of. storms. The procedure involves recovery.of ti'dal bench marks, establishing tide staffs or stakes graduated in feet and tenths firmly implanted just beyond the shore so that the rise and fall of the tide does not exceed,graduation marks during observations or survey operations. The correct values on the staffs or stakes for the desired tidal datum are determined by leveling from the tidal bench marks. The. relationship as to whether the water surface is above or below-- the Iocal mean high water or low water datum of the tide stations is established during survey by, readifig the water level on the staffs or stakes at the two adjacent tide stations and at one or more inter- mediate IWE points. The interpolation is a linear proration based on the distance between the two tide stations and the distance between the IWE and the tide station. Wexample of establishing'an IWE between two adjacent tide stations would be as follows. Observe and measure the relationships between the water surface and the local mean high waterdatum at the two adjacent tide stations. Suppose the water surface in both instances is 0.2 feet below local mean high water; using radios to synchronize the trans- fer of water-surface elevation, the surveyor observes where the water surface intersects the land at the IWE point and marks local mean high water at a point 0.2 feet higher than the observed water surface. Suppose it is desired to establish a mean high water point midway between two tide stations with a time and range difference; at Station A, mean range is 4i@O feet and mean range range at Stations B is 4.4 feet, 'an'd,'mean high water at B occurs 20 minutes later than A. The procedure in the previous example is used except that the surveyor marks the water surface at the IWE point 10 minutes after he i's told it.is mean high-water at Station A. The difference in range does not affect this procedure. Depending on the1ocal conditions, it might be more expeditious to determine mean high water-points between adjacent tide stations by standard leveling techniques, adjusting for the range difference in proportion to distance from the tide stations. Photog)tammetxic RtoceduAz One method of mapping the mean high water and@mean low water lines is the use of tide-coordinated, black-and-white infra-red photography. In 'this method, radio contact is maintained with the photographic aircraft by a tide,observer at the co6trolling tide station. At the desired stage of tide--mean high water or mean low water--the 'tide observer tells the photographic crew when to take the photography. The infrared photography is taken when the surface of the water is at the desired tidal datum. A primary advantage of black-and-white infrared film is for the,.determination of the cutoff line between land and water, and thus it is ideal for mapping the high and low water shorelines. Water absorbs,the infrared end of the spectrum and reflects back the shorter wavelengths. Water will appear black on the infrared emulsion because the 740 nanometer filter does not allow the visible rays to enter the camera and strike.the film emulsion. Photogrammetric procedures are then employed to compile the datum line -t- e d on a map manuscript. The black-and-white infrared, tide-coordina ph'btography must be used with regular compilation photography to ensure a fit to ground control. This method is economical. and effective for large areas, but is complex and usually not economical for a survey of a limited extent of shoreline. It must be stressed that to obtain a sharp land-water interface and to ensure no water penetration, the correct film-filter combination must be used. Accuracy of boundary positioning by photogrammetric methods is a function of the map and photographic scales. Representative horizontal latitudes for National Map Accuracy Standards are t7 feet for 1:2,400 scale map and t28 feet for 1:10,000 scale maps. For demarcation where the coastal boundary is not identifiable o n' the photographs or higher precision is 9 required, the line is traced physically on the ground by leveling, plane table, or other techniques. DemoAcating and Mapping a Boundo)ty in_MwLzh Ateaz In marsh, mangrove, cypress, or similar marine vegetation, the. mean high water line is generally obscured. The mean high water line for boundary purposes is usually held to be the linewhere the surface of the water intersects the ground when the surface of the water is at the elevation 'of mean high water,'and not where the surface of the water intersects the.vegetation or seaward edge of the marsh grass. In some places the-mean high water line on the ground will be along the -he marsh. In the other places this line will meander front edge of around under the marsh grass and be invisible on the photograph and hard to trace on the ground. To demarcate and map the me&n high water line when it is obscured by vegetation, classifical ground surveys must be employed using local tidal datums. WheAe the BoundaAy wms Located in tAe PiLst Thus far the discussion has centered on demarcation and/or mapping of the boundary as it exists at the time of the survey. Frequently, how- ever, it. is necessary or desirable to know where the boundary was located in the past. This information may be difficult to determine., The shore often changes.because of erosion and accretion due to waves and along- shore currents. Once this chInge in shoreline has occurred, it is not 10 possible to map or demarcate a tidal boundary as it existed before the change because the old boundary (for example, the mean high water line) no longer exists and cannot be seen. This fact is readily under- stood if we remember that the boundary is the line of intersection of the surface of the water with the land. Old maps made before the shore- line changes are about the only means of finding where the boundary was located. The National Ocean Survey has.been mapping and remapping the nation's shoreline since 1835 for the production and up-to-date maintenance of nautical charting. Consequently, the archives in the National Ocean Survey contain a unique map record of the coastline. Most places have been,mapped several times during the past decade or more. Each map or topographic-survey shows the physical features as they existed at the date of the particular survey. These maps are not published, but indexes are furnished upon request-and photographic copies may be purchased. Topographic surveys of the NOS do not usually show the mean high water line on the ground in marsh areas. The surveys were made for the preparation of nautical charts and on these charts the seaward edge of the marsh grass is shown as the shoreline. This procedure is adequate for navigational purposes, but does not provide a shoreline for boundary purposes in marsh areas. Since 1807, when President Jefferson entr-usted the survey of the coast to Ferdinand Hassler, the fundamentals of tida.1 boundary mapping have been local tidal datums and horizontal control. Through the applica- tion of modern aerial photography, analytical aerotriangulation, tide- coordinated aerial photography, digital recording tide gages, and electronic, distance measuring instrument, we have improved technological applications. However, the fundamental concepts will remain essentially unchanged because of the legal definitions of our coastal boundaries. LEGAL ASPECTS OF TIDAL BOUNDARIES OF THE COASTAL ZONE BY EDWARD D. EVANS, JR. ATTORNEY NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION MAY 1975 Int.roduction The National Oceanic and Atmospheric Administration (NOAA) is responsible for the implementation of the Coastal Zone Mlanagement Act of 1972 (P.L. 92-583, hereafter referred to as the-Act). Section 305(b) of the Act requires the coastal'states to identify the boundaries of their coastal zones subject to the management program. In addition, definition of other tidal boundaries within the coastal zones is essential in the development of a coastal plan. These boundaries may be political, jurisdictional, proprietary or other. The primary purpose of this paper is to address the legal issues of those boundaries having a relation to the tides. The paper discusses the boundaries of the coastal zone under the Act; that is, the seaward boundaries of the coastal zone, lateral seaward boundaries between the states, the landward limits of the coastal zone; and the other tidal boundaries that may lie within the coastal zone. It is not the purpose of this paper to state where these boundaries are to be found or how they should be determined, but rather to examine the legal framework in which they exist. The question of boundaries and their technical determination, particularly those of the sea, is a. difficult and extensive subject. This paper will attempt to present.to coastal zone planners an abbreviated look and analysis at the problem. -2- Backgrou The law has recognized the land/sea intersection as a most significant boundary. The development of the common law of England in the United States has linked c'ertain land/sea boundary determinations to the tides; specifically, boundaries have been located where the water intersects the land at a given tide level (or datum). The report of the Panel on Management and Development of the Coastal Zone of the Commission on Marine Science, Engineering and Resources (Stratton Commission Report) recognized the complexities of land/sea interface boundaries in citing Aaron Shalowitz, 1 Shore and Sea Boundaries 89: Boundaries determined by the tides are not unambiguous, time-invariant lines, but are,a condition at the water's edge during a particular instant of the tidal cycle: "Boundaries determined by the course of the tides involve two enginleering aspects: a vertical one,,predicated on the height reached by the tide during its vertical rise and fall, and constituting a tidal plane or datum, such as mean high water, mean low water, etc.; and a horizontal one, related to the line where the tidal plane intersects .the shore to form the tidal boundary desired,.for example, mean high-water mark, mean low-water mark. The first is derived from tidal observations alone, and once derived (On the basis of long-term observation), is for all practical -3- purposes a permanent one. The second is dependent on the first, but is also affected by the natural processes of erosion and accretion, and the artificial changes made by man ... (Vol. I, Panel Reports on the Commission on Marine Science,.Engineering and Resources, Part 1 11-108). In the seventeenth century, Lord Mathew Hale, advanced in his treatise on the maritime.law of England, De Jure Maris (1 Hargroves Tracts (1787)), the theory which was adopted as common law; that the Crown had prima facie ownership of the seabed and the foreshore with the 'thigh-water mark" as the boundary. An early English case, Attorne General v. Chambers (43 Eng. Rep. 486 (Ch. 1854)), determined that the boundary of coastal property, as between the private owner and the sovereign, should be set to give the upland owner so much of the land ,as is "for the most part of the year dry and maniorable". The English court decided that "the line of the medium high tide between the springs and the neaps ... must be treated as bounding the right of the Crown". The English decisions were non-technical, however, with much confusion resulting in subsequent U.S. tidelands decisions. Modern courts in the United States have attempted to stabilize the boundary in finding that a line based on tides was to be determined. by taking the arithmetic mean of the elevations of all the tides at a given tidal datum over a'certain period of time. In Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10 (1935), the Supreme 4- Court ruled that a federal paten t of land with a seaward limit of the ordinary high water mark" was to be interpreted according to scientific engineering princl:ples used by the United States Coast and Geodetic Survey (reorganized under NOAA as the National Ocean Survey) to determine mean high water. Thus, for tidal waters, the term "ordinary high water" became synonomous with "mean high water". While the tidal boundary in issue in that case was for land owned by successors to a federal patent, the technical principals adopted by the Court for determination of the mean high water line have been adopted in state courts as well. The Seaward Boundaries of the Coastal Zone The Coastal Zone MaHagement Act of 1972, provides an explicit definition of the seaward limit of the coastal zone. That definition As set forth at 16 U.S.C. 1454 (supp. 11, 1972): "The coastal waters (includ-ing the lands therein and thereunder) and the adjacent shore lands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes transitional and intertidal areas, in the Great Lakes waters, to the International boundary between the United States and Canada and, in other areas, seaward to the outer limit of the United States territorial sea." -5- For those states with coastal zones on the oceans, the seaward limit' of the coastal zone is clearly defined to be the outer limit of the United States' territorial sea. The territorial sea has historically been defined and delimited bythe Federal Government, as a function of its national defense foreign relations and foreign commerce powers. It is defined according to the principles of the Convention on the Territorial Sea and Contiguous Zone, 15 U.S.T. 1606, TIAS 5639, negotiated at the 1958 Law of the Sea Conference in Geneva. That convention describes the baseline from which the seaward limits of the territorial sea are to be measured. The United States has @historically claimed the territorial sea of three miles since 1793, when it was first proposed in notes to the ministers of France and England by Thomas Jefferson as a neutrality zone for national defense purposes. Regarding the location of the baseline, Article III of the Convention states: "Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state. The National Ocean Survey, in charting the low water line, utilizes -6- the same methodology for mean low water determinations as was adopted in the Borax case for mean high water. In 1970, the Federal Government established the Committee on the. Delimitation of the United.States'Coastline under the Inter-Agency Law of the Sea Task Force for the purpose of establishing provisional baselines forthe entire coast line of the United States. The committee determined and depicted on the latest versions of 155 National Ocean Survey large scale charts the territorial sea, contiguous zone and certain internal waters of the United States. Under the 1958 Geneva Convention directive, the Committee has evaluated the large scale National Ocean Survey charts to determine the baseline and from this has delimited the 3 mile territorial sea, as well as the 12 mile contiguous zone provisionally. The seaward limit of the territorial sea is an ambulating boundary. As the baselint from which it is measured (the low-water line) ambulates so will the boundary. However, since the arcs of circles method is used to delimit the 3 mile zone, the boundary arnbulation will be, in most cases, of a lesser degree than that of the baseline. Seaw rd Boundaries between States Lateral seaward limits of a state's coastal zone will be defined by the state4s lateral seaward boundaries. Two procedures have traditionally been available to the states to settle boundary disputes,, interstate 41 -7- agreements or compacts,and formal legal action.. Of the two, interstate agreements or compacts, have been the most widely used. The Constitution provides in Article I, section 10,.Clause 3 that! "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another Statelf. The constitutional requirement for congressional consent insures the national interest will not suffer by an agreement between states. Examples of compacts between states for seaward lateral boundaries are: New York-Connecticut, Jan. 10, 1925, 43 Stat. 731 Alabama-Florida, May 6) 1954, 68 Stat. 77 Virginia-Maryland, October 25, 1972, 86 Stat. 1179 North Carolina-Virginia, Oct. 27, 1972, 86 Stat. 1298 The ratificati@n process by Congress traditionally includes the authorization for the Department of Commerce, NOAA to survey and mark the agreed upon boundary. The other method, formal legal actions, is before the.U. S. Supreme Court pursuant to the Court's original jurisdiction (See U. S. Constitution, Article III and 28 u.s.c. �1251). The Supreme Court first accepted jurisdiction over boundary disputes between the states in.Rhode Island,v. Massachusetts, 12 Pet. 657 (37 U.S., 1838), finding -8- that this interstate dispute was a controversy between states within the intent of Article III of the Constitution. The Court rejected the contention that boundary disputes between states were a political question and not subject to judicial resolution. Current litigation of seaward boundaries between states before the Supreme Court include New Hampshire v. Maine, S. Ct., No. 64 Original, and Texas v. Louisiana, S.,Ct., No. 36 Original. Landward Limits of the Coastal Zone The landward.boundary of a state's coastal zone is defined by the Act in a manner to permit the state maximum flexibility in making that determination. "The zone extends inland from the shorelines only to the extent necessary to control the shorelands, the use of which have a direct and significant impact on the coastal waters." CZMA, Sec. 3o4, 16 U.S.C. �1453. Relating the landward limit of the coastal zone to a tidal datum may be a useful means of determining such a "direct and significant impact". One method which has been used fairly successfully to determine landward boundaries.having a relation to the water and the shoreline is to make the shoreline a baseline from which a horizontal measurement is made inland. The State of California for example, designates within its coastal zone, a permit area q -9- having a landward limit defined as "1,000 yards landward of the mean high tide line of the sea" (Coastal Zone Conservation Act of 1972, 3 Pub. Res. Code �27104). In contrast to California, the State of Virginia has adopted a vertical elevation concept to define its wetlands: "Wetlands" means all that land lying between and contiguous to mean low water and at an elevation above mean.low water equal to a factor of 1.5 times the mean tide range at the site of the proposed project in the county, city or town in question (Wetlands Act, Va. Code Ann. �62.1-13.2.). While equating the landward limit of the coastal zone to a tide or water line is logical in terms of relating to water influence on the adjacent land, certain nonadvantageous factors should be considered. An intersection of water and land is ambulatory thus removing certain desirable aspects of any boundary, i.e., permanence and ease of recovery at a future date. Inner limits of the-coastal zone by lateral measurement from a baseline would be subject to the same ambulations that is experienced with the baseline. The lateral ambulations can be lessened to some degree by using the arcs of circles method for lateral measurementas is used in determination of the seaward limits of the territorial sea. -10- Limits determined by vertical measurement relating to a tidal datum would be subject to less variation and ambulation. The movements of the @horeline due to accretion, erosion, or avulsion would not change the measuring base. Only a,change in the value of the tidal datum, which historically is slight in most areas.would change the inner limit. To the extent that tidal boundaries and jurisdictional lines based upon the tides are contested today, disputes regarding the measurement of the coastal zone inner limit from tidal datums may be expected. Courts currently are receiving a steady diet of cases in which a boundary or a jurisdictional limit defined to the mean high water lines is in dispute. The factual issues of how the tidal datums are computed and surveyed on the ground are often in contention.. A coincident issue is at what point in time is the measurement to be made. A substantial amount of case law is being developed and should provide guidance for performance of such surveys. The State of Florida has addressed tidal surveys in its innovative Coastal Mapping Act of 1974, Chapt. 74-56, (1974) Fla. Laws 34. A discussion of this law as a model act, as well as tidal boundaries generally is well set out by Professors Frank E. Maloney and Richard C. Ausness in their recent article, The Use and Legal Significance of the Mean High Water Line in Coastal Boundary Mapping, 53 North Carolina Law Review 185, Dec. 1974. Boundaries within the Coastal Zone Submerged Lands Those land/water'boundaries which do not delimit the coastal zone but fall within it have been subject of controversy. throughout the history, of the United States. Until recently most litigating parties have been private uplands owners and the States, the owners of the submerged and tidelands. Beginning in 1947, however, when the United States sued the State of California to block California's claim to ownership rights of adjacent offshore submerged lands (asserted by California in the form of leasing rights to oil and other natural resources), disputes between the Federal Government and the coastal states over ownership of offshore lands have been recurrent. The Supreme Court found in United States v. California, 332 U. S. 19 (1947), it was the Federal Government which held title' to the submerged lands seaward of the ordinary low-water mark. In 1953, Congress -reacted to the 1947 California decision with sweeping legislation. The Submerged Lands Act, Act of May 27, 1953, Cha:pter 65, 67 Stat. 29 (codified in scattered sections of 10, 43 U.S.C.) granted to the coastal states, by quit claim deed, the adjacent seabed for an area three miles distant from the "coastline". The Act permits Gulf Coast states to claim land@up to three marine leagues from its coast line if its boundary extended that far seaward at the time of its admission to the Union. Florida and Texas have successfully asserted such claims. In that same year, the Congress reserved for -12- the United States by passage of the Outer Continental Shelf Lands Act, 43 U.S.C. ��1331-1343, the continental shelf lands seaward of those granted to the states.by the Submerged Lands Act. In 1965, the Supreme Court heard a second United States v. Californial 381 U.S. 193 (1965), in which the Court set forth the principles by which the conveyed areas were to be measured. The court held that the principles set forth in the 1958 Convention on the Territorial Sea and Contiguous Zone for determination of the "baseline" for the territorial sea were to be used to delimit the "coastline" of the Submerged Lands Act. Thus, the principle applied in most instances to determine the area of seabed granted to the states, has been to determine "the low-water line along the coast as marked on the large- scale charts officially recognized.by (the United States]". Ownership of the offshore submerged lands has been the subject of recurrent litigation since 1947, In U.S. v. Maine, tt al., 43 L.Wk. 4359, the Supreme Court recently reaffirmed the 1547 California ruling, rejecting the eastern states' arguments that the states owned even beyond three miles. The states claimed that the 1947 ruling had been based on insufficient-evidence and that the individual colonieb had* prior to the formation of the United States., asserted ownership rights to the seabed. State/Private Ownership and Regulatory Jurisdiction Determination of private ownership,vis-a-vis state ownership, of littoral lands has been _13- historically an ubiquitous problem.. The law as evolved from the English common law may be simply stated the sovereign owns the tidelands. However, the application of this simplistic statement has developed a quagmire of esoteric legal, technical and scientific principles. The mean high water line has been the tidal intersection with land subject to the most scrutiny. This tidal datum is used in many states to determine the boundary between privately owned uplands and sovereignty owned tidelands. It serves, as well, as the limits of navigational servitude, except on the Pacific Coast where the line of the mean higher*-high water is used. See 33 CFR �209.260. Mean high water is used in determining many states' regulatory jurisdiction in wetlands as well. A new body of law is presently being created with increasing litigation under the Rivers and Harbors Act of 1899, 33 U.S.C. �401 et seq. (1970), and the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. �1251 et seq. (SuPP. 111, 1973). Recent federal cases having significant impact include U.S. v. Holland (N.D. Fla.), 373 F. Supp. 665 (1974), U.S. v. Ashland Oil and Transportation Company, (6th Cir.) 7 ERC u14, Natural Resources Defense Council v. Callaway, Civ. 74-1242, D.D.C. (1975) and U.S. v. Moretti, (S.D. Fla.), 331 F. Supp. 151 (1971), remanded in part 478 F.2d 418 (5th cir. 1973), modified order,7 ERC 1428 (S.D. Fla.). Holland and Ashland gave judicial 4 interpretations of the "navigable waters" under the Federal Water Pollution Control Act Amendments that went beyond the traditional navigability tests, decreasing the significance of mean high water for jurisdictional limits under that act. In the recent NRDC v. Callaway decision, the court directed the Corps of Engineers to extend its FWPCA jurisdiction beyond the mean high water line. The Moretti decision.was the first in a series of decisions in which areas in the Florida Keys determined to have been dredged and filled beyond the mean high water line, were ordered by the court to be restored to their original condition. The legal significance and the principles used in determination of the mean high water line is the subject of an extensive analysis by Professors Maloney and Ausness. Coastal planners should consider it a must on their reading lists. THE USE AND LEGAN SIGNIFICANCE OF THE MEAN HIGH WATER LINE IN COASTAL BOUNDARY MAPPING FRANK E. MALONEY RICHARD RICHARD C AUSNESS Reprinted from THE NORTH CAROLINA LAW REVIEW Volume 53, December 1974, Number 3 Copyright @ 1975 by the North Carolina Law Review Assiciation THE USE AND LEGAL SIGNIFICANC THE ME-AN HIGH WATER LINE COASTAL BOUNDARY MAPPID FRANK E. MALONRYt AND RICHARD C. AUSN 1. INTRODUCTION ................ -_-------------------- I-- - --- - ------ 11. THE LEGAL REGIME OF THE COASTAL ZONE A. Littoral Rights @ -- ------------------- --------- ------- B. Public Trust Do@irine ........................................ C. Government Regulatory Authority -------------_---- 111. LEGAL AsP.EcTs or. STIORELINE BOUNDARIES A. Tides --------------------------------------------------------- ..... B. The Limits of Private Ownership (1) The Use of the Mean High Water Line to the Extent of. Private Ownership (a) Common law developments .--: ........ (b) The Borax decision ............ ........... (2) Private Prolicrty Rights in Tidally Affecte (a) Tests of navigability for title purpos (i) The ebb-and-flow test ....... (ii) The navigability-in-fact test (iii) The federal test of navigabil title purposes __ ...... . 4 (b) Obstructed entrances to tidal basins (c) Hummocks ------------_- ............... ------ (3) The Ambulatory Nature of Coastal Do (a) Common-law doctrines ... .. .. ... ------ (b) Federal cases .................................. (c) State approaches to ambulatory sh C. Federal-State Conflicts in the Marginal Sea ---- IV. A LEGISLATIVE APPROACH TO SHORELINE BoUNDA A. A Proposed Model Act -------- .................... ------ B. Legislative Recognition of the Mean High lVat t TI.A. 1939, University of Toronto; J.D. 1942, University of of Law@ and Dean Fmcrittis, University of Florida Law Center, Dean cipal Investigator, Water Resources Scientifit Information Center o Eastern Water Law. B.A. 1966, University of Florida; J.D. 1968, University of 1973, Yale University; Associate Professor of Law, University of Kentu The preparation of this article has been supported by the Florid Natil ri'l Resources and the National Oceanic and Atmospheric Ad Grant Program. Sincc this work results in part from research sponsor fice of Sea Grant, U.S. Dep't of Commerce, under Grant No. 04-3-1 States Government is authorized to produce and distribute reprints for It poses notwithstanding any copyright notation that may appear hereon. The assistance of Mitzi Cockrell Austin and Dennis C. Dambly knowledgtd. 186 NORTH CAROLINA LAW REVIEW (Vol. 53 1974) COASTAL BOUNDARIES 187 C. Coastal Surveys............................ 245 associated with coastal boundary determinations and offer some solu- (1) Determination of Tidal Datums tions within the framework of the legislative proposal which accom- (a) Local tidal datums................. 246 panies this discussion. (b) Mean high and mean higher high water datums............................. 249 II. THE LEGAL REGIME OF THE COASTAL ZONE (2) Demarcation of the Shoreline........... 250 (a) Survey methodology................. 251 A. Littoral Rights (b) Surveys in vegetated areas......... 252 (c) Surveys in areas of diminished tidal Landowners, whose property borders on the ocean or a navigable inflence........................... 259 watercourse,7 commonly possess certain riparian or littoral rights.8 (i) The mean high water line..... 259 These rights9 depend upon contact with the water and not upon owner- (ii) The mean water level line.... 259 ship of the submerged lands beneath it.10 For example, littoral owners (iii) The ordinary high water mark. 260 usually have a right of access to the water,11 which cannot be impaired (3) Other Statutory Provisions............. 261 by the state without just compensation,12 and they sometimes have D. The Coastal Mapping Program................ 262 rights to objects cast upon the shore.13 Moreover, littoral owners share V. CONCLUSION..................................... 265 with other members of the public the right to navigate,14 fish,15 and VI. APPENDIX--MODEL COASTAL MAPPING ACT............ 267 ______________________________________________________________________________________ 7. Strictly speaking, riparian or littoral rights properly attach only to land which I. INTRODUCTION abuts on navigable waters. However, landowners whose property borders on nonnavi- The effect of unplanned and ill-conceived land use development gable waters are often treated as riparian or littoral owners. See F. MALONEY, S. on the coastal ecology has been well documented in recent years.1 PLAGER & F. BALDWIN, WATER LAW AND ADMINISTRATION--THE FLORIDA EXPERIENCE Recognizing the need for more effective governmental control in this 22.1(a), at 35-36 (1968). area, a number of state legislatures have enacted statutes to protect the 8. The term "riparian" is applied to fresh water streams, while the term "littoral" coastal environment and encourage the orderly development of coastal is used in connection with lakes and the seashore. 1 H. FARNHAM, THE LAW OF WATERS resources.2 These efforts have received the support of the federal AND WATER RIGHTS 63 (1904). government as well.8 9. Riparian and littoral rights also include the right to make consumptive uses, Determination of coastal boundaries is essential to the develop- at least where fresh waters are concerned. See generally 5 R. POWELL, THE LAW OF ment of an effective coastal zone management program.4 In general REAL PROPERTY 710-18 (1971); J WATERS AND WATER RIGHTS 15-16 (R. Clark such boundaries represent the intersection of the shore with a particular ed. 1967). tidal elevation.5 However, the demarcation of coastal boundaries is 10. 56 AM. JUR Waters 216(1947). complicated by legal uncertainties. Moreover, the unavailability of ac- 11. McCloskey v. Pacific Coast Co., 160 F. 794 (9th Cir. 1908); San Francisco curate tidal data or the use of improper survey methods make the ac- Sav. Union v R.G.R. Petroleum & Mining Co., 144 Cal. 134, 135, 77 P. 823, 824 curate location of the physical boundary line a difficult task in many (1904); Board of Trustees v. Medeira Beach Nominee, Inc., 272 So. 2d 209, 214 (Fla. cases.6 Dist. Ct. App. 1973); McCarthy v. Coos Head Timber Co., 208 Ore. 371, 387-88, 302 This article will examine a number of physical and legal problems P.2d 238, 246 (1956); Hollan v State, 308 S.W.2d 122, 125 (Tex. Civ. App. 1958); ______________________________________________________________________________ Lyon v. Fishmonger's Co., 1 App. Cas. 662 (1876): Annot., 89 A.L.R. 1156 (1934). 1. See generally B. KETCHUM, THE WATER'S EDGE: CRITICAL PROBLEMS OF THE 12. Lewis v. Johnson, 76 F. 476, 477 (D. Alas. 1896) (dictum): Hayes v. Bow- COASTAL ZONE (1972); U.S. COMM'N ON MARINE SCIENCE, ENGINEERING AND RE- man, 91 So, 2d 795, 799 (Fla. 1957); In re City of New York, 168 N.Y. 134, 61 N.E. SOURCES, OUR NATION AND THE SEA: A PLAN FOR NATIONAL ACTION (1969). 158 (1901): Duke of Buccleuch v. Metropolitan Bd. of Works, I.R. 5 H.L. 418 (1872); 2. E.g., CAL. PUB. RES. CODE 27000-650 (West Supp. 1974); N.C. GEN. STAT. 1 H. FARNHAM, supra note 8, 66; F. MALONEY, S. PLAGER & F. BALDWIN, supra note 113A-100 to 128 (1974 Advance Legislative Service, pamphlet no. 31: R.I. GEN. 7 41.1, at 98.99. But see cases discussed in Annot., 21 A.L.R. 206 (1922). LAWS ANN. 46-23-1 TO -16 (Supp. 1973); WASH. REV. CODE ANN, 90.58.010-.930 13. For example, seaweed and other natural objects thrown up by the sea belong (Supp. 1972). to the landowner. Nudd v. Hobbs, 17 N.H. 524 (1845): Emans v. Turnbull, 2 Johns. 3. 16 U.S.C. 1451-64 (Supp. II, 1972). 314 (N.Y. 1807). At common law the right to wreck was in the sovereign. Statute 4. W. HULL, COASTAL BOUNDARY MAPPING 1 (1973). of Westminster of 1275, 3 Edw. 1, c. 4; Constable's Case, 77 Eng. Rep. 218, 223 (K.B. 5. I A. SHALOWITZ, SHORE AND SEA BOUNDARIES 89 (1962). 1601); Note, Abandoned Property: Title to Treasure Recovered in Florida's Territorial 6. Guth, Will the Real Mean High Water Line Please Stand Up, 1974 PROCEED- Waters, 21 U. FLA. L. REV. 360, 361-62 (1969). In America, however, the littoral INGS OF THE AM. SOC'Y OF PHOTOGRAMMETRY 33-44 (Fall Convention). owner may claim wreck. Barker v. Bates, 30 Mass. (13 Pick.) 255 (1832); Annot., 41 A.L.R. 1015, 1018 (1926). 14. Maloney & Plager, Florida's Lakes: Problems in a Water Paradise, 13 U. FLA. L. REV. 1, 26-31 (1960). 15. Harris v. Brooks, 225 Ark. 436, 444, 283 S.W.2d 129, 134 (1955); Annot., 56 A.L.R.2d 790 (1957). 188 NORTH CAROLINA LAW REVIEW [Vol. 53 1974 COASTAL BOUNDARIES 189 swim or bathe 16 in navigable waters, subject, however, to reasonable with other concepts,25 to protect the public's access to upland beach regulation by the state in the exercise of its police power. 17 areas for recreational purposes. Finally, littoral property subject to the doctrine of accretion, re- Although there were parallels in Roman law,26 the public trust liction, avulsion, and erosion, 18 which will be thoroughly discussed doctrine originated in the English common law.27 Lord Hale in his below. 19 treatise, De Jure Maris, distinguished between the proprietary interests of th e sovereign and the rights of the public in tidal waters. Hale re- B. Public Trust Doctrine ferred to the former as jus privatum and the latter as jus publicum.28 No examination of property rights in the coastal zone would be complete without a discussion of the origin and scope of public trust The jus privatum was an aspect of the King's regalian rights and re- ferred to ownership of the soil itself.29 Any unauthorized encroach- doctrine. In most jurisdictions the state owns tidelands and beds ment on the foreshore or beds of tidal waters constituted an invasion under navigable waters; however, the character of this ownership dif of the King's private right and was deemed a purpresture,30 and in the fers in many respects from that of a private owner.20 According to one case of a wharf or other structure, could bring proceedings commentator, "The public nature of state ownership is expressed in the trust principle, which means that the public is entitled to use the tide- publically owned beaches to local residents. Borough of Neptune City v. Borough of lands for certain purposes. In theory, at least, the states cannot destroy Avon-By-The-Sea, 61 N.J. 296 A.2d 41 (1972) ("The public trust doctrine like all these public uses by devoting the tidelands to non-public uses".21 In common law principles, should not be considered fixed or static, but should be molded its modern form, therefore, the public trust doctrine limits the power and extended to meet changing conditions and needs of the public it was created to ben- of states to dispose of lands under tidal waters.22 The doctrine has tra- efit...."); Gewirtz v. City of Long Beach,69 Misc. 2d 763, 330 N.Y.S.2d 495 (Sup. ditionally been employed to protect public rights to navigation, com- Ct. 1972). See also Eckhardt, A Rational National Policy on Public Use of Beaches, merce and fishing23, but in some states it has also been utilized,24 along 24 Syracuse l.. Rev. 967, 978-79 (1973); Note, Non-Resident Restrictions in Munici- ___________________________________________________________________________________ pally Owned Beaches Approaches to the Problem, 10 Colum J. Law & Soc. Prod. 177 16. Butler v. Attorney General, 195 Mass. 79,83,80 N.E. 688, 689 (1907); People (1974); Note, California Beach Access: The Mexican Law andthe Public Trust, 2 Seaway Co. v. Attorney v. Hulbert, 131 Mich. 156, 159, 91 N.W. 211, 212 (1902); Harrison County v. Guice, Ecol. I.Q. 571, 582.91 (1972); Note, Access to Public Municipal Beaches: The 244 Miss. 95, 107, 140 So. 2d 838, 842 (1962); State v. Morse, 84 Vt. 387, 392,80 Formulation of a Comprhensive Legal Approach. 7 Suffolk U.L. Rev, 936 (1973). A. 189, 191 (1911); In re Clinton Water Dist., 36 Wash. 2d 284, 287, 218 P2d 309, 25. Theories based on Immemorial custom, implied dedication and prescription 312 (1950). have also been used by some state courts to provide for public access to the sea across 17. Colberg, Inc. v. State, 67 Cal. 2d 408, 432 P.2d 3, 62 Cal. Rptr. 401 (1967), privately owned beaches. Dietz v. King, 2 Cal. 3d 29, 465 P.2d 50, 84 Cal Rptr. 162 cert. denied. 390 U.S. 949 (1968); Carmazi v. Board of County Comm'rs, 108 So. 2d (1970); City of Daytona Beach v. Tona-Roma, Inc., 294 So. 2d 73 (Fla. 1974); State 318 (Fla. Dist. Ct. App. 1959); Note, Colberg, Inc. v. State: Riparian Landowner's ex rel. Thornton v. Hay, 254 Ore. 584, 462 P.2d 671 (1969); Seaway Co. v. Attorney Right to Eminent Domain Relief for State Impairment of Access to a Navigable Water- General, 375 S.W.2d 923 (Tex. Civ. App. 1964): Note, Public Access to Beaches; Com- way, 72 Dick L. REV. 375 (1968). mon Law Doctrines and Constitutional Challenges, 48 N.Y.U.L. Rev, 369 (1973); 18. See generally 6 R. POWELL, supra note 9, 983-86 (1973); SA G. THOMP- Note, Public Access to Beaches, 22 Stan. L. Rev. 564 (1970); Commentary, Easements: SON. COMMENTARIES ON THE MODERN LAW OF REAL PROPERTY 2560-65 (J. Grimes Judicial and Legislative Protection of the Public's Rights in Florida's Beaches, 25 U. ed. 1957); 56 AM. JUR. Waters 476-98 (1947); 65 C.J.S. Navigable Waters 80- Fla. L. Rev. 586 (1973). 19. See Part III B(3) infra. 26. Apalachicola Land & Dev. Co. v. McRae, 86 Fla. 393, 98 So. 505 (1923); DI- 20. See Sax, The Public Trust Doctrine in Natural Resource Law: Effective Ju- GEST 43.12.1.17; INSTITUTES 2.1.1, .2, .5; Comment, 79 Yale L.J., supra note 23, at 763- dicial Intervention, 68 MICH. L. REV. 471 (1970); Note, The Public Trust in Public 64. Waterways, 7 URBAN L. ANNUAL 219 (1974). 27. See generall Fraser, Title to the Soil Under Public Waters--A Question of 21. Teclaff, The Coastal Zone--Control over Encroachments into the Tidewaters, Fact (pts. 1-2), 2 MINN. L. REV. 313, 429 (1918). 1 J. MARITIME L. & COMMERCE 241, 263 (1970). 28. Hale, A Treatise Relative to the Maritime Law of England in Three Parts in 1 A Collection of Tracts Relative to the Law of England (F. Ha'grove ed. 22. See Comment, The Tideland Trust: Economic Currents in a Traditional Legal 1787), reprinted in S. Moore, A history of the Foreshore 393 (1888) Thereinafter Doctrine, 21 U.C.L.A.L. REV. 826 (1974); Note, Conveyances of Sovereign Lands Un- cited as S. Moore). Page references toHale's work are taken from the Moore treatise. der the Public Trust Doctrine: When Are They in the Public Interest?, 24 U. FLA. L. A substantial portion of Hale's treatise is also reprinted at the end of Ex parte Jennings, REV. 285 (1972). 6 Cow. 518, 536 (N.Y. 1826). 23. See Comment, The Public Trust in Tidal Areas: A Sometime Submerged Tra- 29. Fraser, supra note 27, at 433. Until restricted by Parliament in the eighteenth ditional Doctrine, 79 YALE L.J. 762 (1970). century, the King was free to alienate his jus privatum interest. Stat. 1 Anne, c. 7, 24. To date all of these cases have involved municipalities restricting access to 5 (1701). See also Stat. 10 Geo. 4, c. 50 (1829), which placed royal property under the management of the commissioners of woods, forest and land revenues. Tidelands are now managed bythe Crown Estate Commissioners. 39 HALSBURY'S LAWS OF ENGLAND, Waters & Watercourses 775 (4th ed. 1962). 30. J. GOULD, A TREATISE ON THE LAW OF WATERS 21 (3D ED. 1900). 190 NORTH CAROLINA LAW REVIEW [Vol. 53 1974) COASTAL BOUNDARIES 191 in the Exchequer to seize the property or compel its removal.31 This private right, however, was subject to the jus publicum, under case oftidal waters, the public right offishing was vested in the King as jus publicum.40 which public rights of fishing were protected.32 Accord- At first it appears that the King made grants of exclusive fishery ing to Lord hale, waterways were "in the nature of common highwayes, in tidal waters to individuals and thereby excluded the public.41 In in which all the Kings people have a liberty of passage."33 Unlike Lord Fitzwalter's Case42 Lord Hale stated that such grants were valid, the jus privatum, which was limited to tidal waters, the jus publicum, but the right was prima facie in the public and the burden of proof was as it applied to navigation, extended to navigable fresh watercourses as placed on the grantee to establish his interest.43 Eventually in the well, even where the beds were privately owned.34 nineteenth century, the courts determined that no grant of exclusive Although tile King could convey his private interest in the soil.35 fishery in tidal waters was valid if made after the effective date of the he could not thereby impair the public's right to navigation.36 Thus, Magna Carta.44 if the owner of the tidelands erected a wharf or other structure that ob- A somewhat different rule evolved in America. Many of the early structed navigation his conduct was actionable as a public nuisance, not- colonial charters, granted at a time when the King could freely alienate withstanding tile royal grant.37 his private interest in tidal waters, purported to grant havens, ports, The public right of fishing was less extensive than that of naviga- rivers, waters, fishing rights, and "singular other commodities, jurisdic- tion.38 The owner of the soil normally possessed exclusive fishing tions, royalties, privileges, franchises, and pre-eminences, both within rights in nontidal waters, regardless of navigability.39 However, in the the tract of land upon the main, and within the islands and seas ad- joining."45 Moreover, no particular restriction was placed on the 31. Gough v. Bell, 22 N.J.L. 441, 477 (Sup. Ct. 1850). colonial proprietors' conveyances, except that public navigation not be 32. The right of public to ports, which give it access to shore facilities for load- impaired.46 Nevertheless, a doctrine emerged in nineteenth-century ing and unloading, was related to its right of navigation. Attorney-General v. Burridge. America that imposed substantial restrictions on power of federal and 147 Eng. Rep. 335 (Ex. 1822); Attorney-General v. Parameter, 147 Eng. Rep, 345 (Ex. state governments to abridge public rights of navigation and fishing or 1811);Attorney General v. Richards, 145 Eng Rep. 980 (Ex. 1795); Comment, 79 to alienate lands under navigable waters.47 This became known as the YALE L.J., supra note 23, at 781-82. 33. S . MOORE, supra note 28, nt 339. 34. Palmer v. Mulligan, 3 Cal. R. 307, 313 (N.Y. Ct. App. 1805); S. Moore, supra note 28, at 374-76. "The sea, and the arms of the sea, and the navigable waters inn which the tide 35. Duke of Beaufort v. Mayor of Swansea, 154 Eng. Rep. 905 (Ex. 1849); Attor- ebbs and flows, are the dominion of the king,...but that though the king is the owner ney-General v. Burridge, 147 Eng. Rep. 335 (Ex. 1822); Attorney-General v. Parmeter, of these waters, and, as consequent of his property, hath the primary right of the fishing 147 Eng. Rep. 345 (Ex. 1811); Blundell v. Catterall, 106 Eng. Rep. 1190 (K.B. 1821). therein, yet the common people of England have regularly a liberty of fishing in the 36. Gann v. Free Fishers, II Eng. Rep. 1305, 1312 (H.L. 1864); Attorney-General sea, and the creeks and arms thereof, as a public common piscary,and may pol. without, ex ret. Moore v. Wright, (1897) 2 Q.B. 318 (C.A.). injury to their right, be restrained thereof." S. MOORE, supra note 28, at 376-77. 37. The mode of proceeding at common law to authorize the erection of wharves 41. 1 H. FARNUM, supra note 8, 36. and other structures on the shores of the sea or of navigable rivers, where the property 42. 86 Eng. Rep. 766 (K.B. 1672) of an inquest by ajury, finding that no injury would result to the king or others from 43. "But in case of a river that flows and reflows, and is an arm of the sea, there, remained in the Crown, was to sue out a writ of ad quod damnum, and upon the return prima facie, it is common to all; and if any will appropriate a privilege to himself, the the grant, the Crown licensed what would otherwise be a purpresture." J. GOULD, supra proof lieth on his side." Id. at 766-67. note 30. 21, nt 46-47; see Commonwealth v Alger, 61 Mass. (7 Cush.) 53, 82 (1851); 44. Gann v. Free Fishers, 11 Eng. Rep. 1305, 1312 (H.L. 1865); Duke of Somerset Clement v. Burns, 43 N.H. 609, 617 (1862); Bell v. Gough, 23 N.J.L. 624, 661 (Ct. v. Fogwell. 108 Eng Rep. 325, 328 (K.B. 1826); Blundell v. Catterall, 106 Eng. Rep. Err. & App. 1852); Rex v. Russell, 108 Eng. Rep. 560 (K.B. 1827); Rex v. Montague, 1190 (K.B. 1821); Mayor of Carlisle v. Graham, L.R. 4 Ex. 36 (1869). See also 107 Eng. Rep. 1183, 1184 (K.B. 1825); Note, The Right of Sovereignty in the Shore Browne v. Kennedy, 5 Har. & J. 195, 203-07 (Md. 1821). of the Sea, 1 Am, 1.. Mag. 76.82 (1843). 45. The grant ofKing James 1 in 1620 to the Council of Plymouth, after which 38. At common law the right of fishery could be several, free or common. A sev- many of the later charters were modeled, included all "havens, ports, rivers, waters, fish- ings, mines, etc., and all and singular other commodities, jurisdictions, royalties, privi- eral fishery was an exclusive right to fish in particular watercourse; a free fishery was leges, franchises, and preeminences, both within the tract of land upon the main, and a right tofish shared with other holders of the same franchise, while a common fishery within the islands and seas adjoining." J. GOULD, supra note 30, 31, at 70; see Barker was that right possessed by all members of the public. See 7 M. Bacon, ABRIDGEMENT v. Bates, 30 Mass. (13 Pick.) 255, 259 (1832). See also Flaherty, Virginia and the Mar- OF THE LAW 452 (J. Bouvier ed. 1876); 16 C. Viner, A GENERAL ABRIDGEMENT OF ginal Sea: An Example of History in the Law, 58 VA. 1 . REV. 694. 696 (1972). LAW AND EQUITY 355 (2d ed. 1793). 46. I. H. FARNHAM, supra note 8, 42. 39.J. GOULD, supra note 30, 49, at 111-12; see Ewing v. Colquhoun, 2 App. 47. Ex., Mayor v. Eslava, 9 Port. 577, 590-92 (Ala. 1839), aff'd, 41 U.S. (16 Cas. 839 (1877); Pearce v. Sentcher, 9 Q.B.D. 162 (1882); Tilbury v. Silva. 45 Ch, Pet.) 234 (1842); Kimball v. Macpherson, 46 Cal. 104 (1873); State v. Black River D. 98 (1890); Murphy v. Ryan, 2 Ir. R.C.L. 143 (1868). 192 NORTH CAROLINA LAW REVIEW (Vol. 53 1974) COASTAL BOUNDRIES 193 public trust doctrine. The development of this concept may be traced Illinois Central Railroad v. Illinois.52 The Illinois legislature in 1869 in a series of federal cases beginning with Martin v. Waddell18 decided made a grant of submerged lands to the Illinois Central Railroad, in- in 1842. cluding all the land underlying Lake Michigan for one mile out from The Supreme Court held in Martin that the plaintiff had not ac- shore and extending one mile length along the central business dis- quired an exclusive right of fishery through a grant from the colonial trict of Chicago. However, in 1873 the state revoked the grant and an aspect of the proprietor's governmental powers and were held in brought suit tohave it declared invalid. The Supreme Court of the trust in the same manner as they were by the Crown. According to United States upheld the State's claim and declared that such a convey- the Court, "When the revolution took place the people of each state ance of trust lands to private parties wasbeyond the power of the State became themselves sovereign, and in that character hold the absolute legislature. The Court stated that the title under which Illinois held right to all their navigable waters in the soils under them for their own the navigable waters of Lake Michigan was a"trust devolving upon common use, subject only to the rights since surrendered by the consti- the State for the public . . . which can only be discharged by the man- tution to the general government."49 agement and control of property inwhich the public has an interest, Shortly thereafter, in Pollard's Lessee v. Hagan50 the Court ruled (and) cannot be relinquished by a transfer of property."53 that new states must be admitted on an equal footing with existing It is important to note, however, that the Supreme Court held that states and determined that title to tidelands in Mobile Bay were vested the State, in the exercise of its management and control of such lands, in the state of Alabama upon its admission to the Union in 1819. Later, could dispose of them in certain instances: in Shively v. Bowlby51 the Court declared that prior to statehood, the (T)he abdication of the general control of the State over lands federal government held the beds of tidal waters in trust for the citizens under the navigable waters of an entire harbor or bay, or of a sea of the future state and could not alienate these lands so as to impair or lake . . . is not consistent with the exercise of that trust the trust. which requires the government of the State forthe pur- The fullest exposition of the public trust doctrine appeared in poses of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therin, or can Phosphate Co., 32 Fla. 82, 106, 13 So. 640, 648 (1893); Geiger v. Filor, 8 Fla. 325, 336 (1859); Browne v. Kennedy, 5 Har. & J. 157 (Md. 1821); Commonwealth v. City of Roxbury, 75 Mass. (9 Gray) 451, 492-93 (1858); Commonwealth v. Alger, 61 Mass. (7 Cush.) 65 (1851); Commonwealth v. Charleston, 18 Mass. (1 Pick.) 180, 181 (1822); Clement v. Burns, 43 N.H. 609, 616-17 (1862); Gough v. Bell, 23 N.J.L. 624, 654 (Ct. App. 1852); Arnold v. Mundy, 6 N.J.L., 67 Ct. App. 1821); Cone v. State. 144 N.Y. 396, 405, 39 N.E. 400. 402 (1895); Tatum v. Sawyer, 9 N.C. 226 (1822); Alien v. Allen, 19 R.I. 114, 32 A. 166 (1895) (per curiom); City of Galveston v. Menard, 23 Tex. 349, 393 (1859); Home v. Richards, 8 Va. (4 Call) 451 (1789). Many American courts mistakenly believed that the Crown's title to tidal waters was directly related to its duty to preserve the public's right tonavigationn; e.g. Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892). This was partly due to a misunderstanding of the English test of navigability. Hale's treatise declared that the King protected public rights in nontidal waters that were navigable in fact. S. MOORE, supra note 28, at 374-76. However, Chancellor Kent, in Palmer v. Mulligan, 3 Cal. R. 307 (N.Y. Ct. App. 1805), introduced the tidal theory of navigability into American jurisprudence, holding that only tidal waters were navigable. This error led him to suggest a relation- ship between navigability and ownership of the soil which did not exist at common law, 1 H. FARNHAM, supra note 8, 36a, but which provided a link between the English and American theories of governmental ownership of tidelands. 48. 41 U.S. (16 Pet.) 367 (1842). 49. ld. at 410; accord, Smith v. Maryland, 59 U.S. (18 How.) 71, 74-75 (1855). 50. 44 U.S. (3 How.) 212 (1845). 51. 452 U.S. 1 (1893). interest in the lands and waters remaining.54 Thus, the states continue to have the primary responsibility for defining the limits of the public trust doctrine and formulating a policy concern- ing the disposition of sovereignty submerged lands within their respec- ive boundaries.55 C. Government Regulatory Authority While all property is subject to some form of public control, the unique physical and legal characteristics of coastal property invite a greater degree of governmental regulation. In fact, agencies of federal, state and local governments often impose substantial limitations 52. 146 U.S. 387 (1892_ 53. Id. at 453 54. Id. at 452-53 55. Many states have enacted legislative restrictions concerning the sale of sover- eignty submerged lands. Teclaff, supra note 21, at 261-68. The Florida Constitution prohibits such sales unless they are found to be in the public interest. Fla. Const. art. X, 11. 194 NORTH CAROLINA LAW REVIEW (Vol. 53 1974) COASTAL BOUNDARIES 195 on the utilization and development of coastal resources by private land- all enacted comprhensive coastal zone management legislation. The owners. Delaware Coastal Zone Act69 prohibits the further of heavy The federal government has prominant role in coastal areas.56 industry in coastal areas and closely regulates other manufacturing The National Ocean Survey (NOS) (formerly the Coast & Geodetic operations.70 Other states have established coastal, construction-set- Survey) has been mapping the coastline of the United States since back lines71 and have enacted legislation to protect sand dunes72 or the 1835.57 The Corps of Engineers oversees dredge and fill operations ocean shore in general.73 Finally, most coastal states regulate con- in navigable waters, such as the National Environmental Policy Act61 have struction activities in navigable waters74 and estuarine areas.75 a profound impact on the coastal zone. Finally, there is the Coastal Zone Management Act of 1972,62 enacted to encourage the develop- III. LEGAL ASPECTS OF SHORELINE BOUNDARIES ment of comprehensive state management programs and the formula- tion of a national coastal zone policy. Under this Act the Secretary of A. Tides Commerce may award annual grants to coastal states to assist them in developing coastal management programs, while another provision re- Coastal boundaries are generally defined by vertical datums, quires coordination amongfederal and state agencies on matters involv- which are planes of reference for elevations based on the average rise ing coastal areas.63 and fall of the tide. Mean high water and mean low water are In many states responsibility for the coastal environment is frag- examples of such vertical datums. The coastal boundary is the inter- mented among various units of state and local government.64 however, section of this elevation with the shore and varies as the physical shape California,65 North Carolina,66 Rhode Island,67 and Washington68 have of the shore changes. Since observations of the tide provide the infor- mation necessary toestablish these datums, an understanding of coastal 56. See Teclaff, supranote 21, at 246, 251; Ausness, Land Use Controls in Coastal boundaries requires a knowledge of tides and the forces that produce Areas, 9 CALIF. W.L. REV. 391, 401-04 (1973). them. 57. W. HULL, supra note 4, at 1. The National Ocean Survey (NOS) is a main The tide is defined, as: "The periodic rising and falling of the line component of the United States Department of Commerce. water that results from the gravitational attraction of the moon and sun 58. 33 U.S.C. 403 (1970). Moyer. Corps of Engineers Dredge and Fill Juris- diction: Butterssing a Citadel Under Seige, 26 U. Fla. L. Rev. 19. 21 (1973); Kramon, and water Use in the Coastal Zone: A New Law is Enacted in North Carolina, 53 Section 10 of the Rivers and Harbors Act: The Emergence of a New Protection for N.C.L. REV. 275 (1974). See also R. Bode & W. Farthing, Coastal Area Management Tidal Marshes, 33 Mo. L. Rev. 229. 233 (1973). in North Carolina: Problems and Alternatives, Feb 11,1974 (N.C. Law center publi- 59. 42 U.S.C 4321-47 (1970). See, e.g., Natural Resources Defense Council, cation). Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972). 67. Coastal Resources Management Act, R.I. GEN. LAWS ANN. 46-23-1 to -16 60. 42 U.S.C. 1857-58 (1970). (Supp. 1973). 61. 33 U.S.C. 1251-1376 (Supp. II. 1972). 68. Shoreline Management Act of 1971, WASH. REV. CODE ANN. 90.58.010-.930 62. 16 U.S.C. 1451-64 (Supp. II. 1972). (Supp. 1973); Crooks, The Washington Shoreline Management Act of 1971, 49 WASH. 63. Ausness, supra note 56, at 403. Mandelker & Sherry, The National Coastal L. REV. 423 (1974). Zone Management Act of 1972. 7 Urdan L. Annual 119 (1974). 69. DEL. CODE ANN. tit. 7 7001-13 (Supp. 1972) 64. See generally E. BRADLEY & J. ARMSTRONG, A DESCRIPTION AND ANALYSIS OF 70. Note, Legislation--The Delaware Coastal Zone Act, 21 BUFFALO L. REV. 481, COASTAL ZONE AND SHORELINE MANAGEMENT PROGRAMS IN THE UNITED STATES (Sea 482 (1972). Grant Tech. Rep. No. 20, 1972). 71. E.g., FLA. STAT. ANN. 161.052.053 (1972); HAWAII REV. STAT. 205-32, 65. California Coastal Zone Conservation Act of 1972. CAL. PUD. RES. CODE 34 (Supp. 1973). 27000-650 (West Supp. 1974). See also Douglas, Coastal Zone Management--A new 72. N.C. GEN. STAT. 104B-04 (1972). See also Note, Environmental Law--The Approach in California, 1 COASTAL ZONE MANAGEMENT J. 1 (1973); Comment, Coastal Public Trust Doctrine: A Useful Tool in the Preservation of Sand Dunes, 49 N.C.L. Controls in California; Wave of the Future?, 11 HARV. J. LEGES 463 (1974); Note REV. 973 (1971). Saving the Seashore: Management Planning for the Coastal Zone, 25 HASTINGS L.J. 191 73. DEL. CODE ANN, tit. 7, 6801-09 (Supp. 1972): ORE. REV. STAT. 390.365- (1973). .690 (1973). 66. N.C. GEN. STAT. 113A-100 to -128 (1974 Advance Legislative Service, 74. Teclaff, supra note 21, at 268-76; Annot., 46 A.L.R.3d 1422 (1972). pamphlet no. 3). This statute is discussed in Schoenbaum, The Management of Land 75. Ausness, A survey of State Regulation of Dredge and Fill Operations in Non- navigable Waters, 8 LAND & WATER L. REV. 65, 72-89 (1973); Note, State and Local Wetlands Regulation: The Problem of Taking Without Just Compensation, 58 VA. L. REV. 876 (1972). 196 NORTH CAROLINA LAW REVIEW [Vol. 53 1974) COASTAL BOUNDARIES 197 acting upon the rotating earth.76 This indicates the strong relation- the tide.83 ship between the sun and the moon and the tides.77 The individual There are three characteristic features of the tide at a given tide-producing forces vary over the face of the earth in a regular man- place--the time, range, and type of tide. The time of the tide is re- ner, but the different combinations of these forces produce totally dif- lated to, and can be specified by, the moon's meridian passage.84 The ferent tides. Moreover, the response of various bodies of water to these range of the tide refers to the magnitude of the rise and fall of the tide, forces varies because of differing hydrographic features of each basin.78 and varies from day to day, at a given place depending on the relation The variations in the major tide-producing forces are a result of of the tide-producing forces. The type of tide denotes the characteris- changes in the moon's phases, declination to the earth, distance from tic form of the daily rise and fall of the tide. The tideis semidiurnal the earth and regression of the moon's nodes.79 The variations which when two highs and two lows occur each day; it is diurnal when only occur because of this latter factor will go through one complete cycle one high and one low occur each day; and it is mixed when two high in approximately 18.6 years. The other changes havecycles varying and two loww waters occur in a day with marked differences between from 27 1/3 days 9moon's declination) to 27 1/2 days (moon's distance) the two high or the two low waters.85 their effect on the tide varies from place to place around the earth. The These tidal characteristics vary from one location to another as a various combinations of all these changes also result in the daily varia- result of variations in the tide-producing forces and in hydrgraphic tions in the tide at a given location. features.86 While some generalizations about tidal characteristics can The forces related to the changes in the moon's phases are strong- be made, it must be recognized that tidal characteristics are a local est twice each month at new and full moon and the tides occuring at phenomenon and the description of the tide in one area may be inap- approximately these times are known as spring ideas. These forces are plicable to another area. weakest at the time of the first or third quarter of the moon and the The tide observations required for the determination of a tidal da- tides occuring then are called neap tides. However, at most places tum must be as accurate as possible because the location of the boun- there is a lag of a day or two between the occurrence of the appropriate dary determined from the datum may involve very valuable lands. After phase of the moonn and corresponding spring or neap tide.81 The cycle the vertical elevation of a tidal datum is established it must be trans- relating to the moon's declination is strongest twice each month when lated into a line on the ground--the intersection of the datum plane the moon is at the tropics and it is weakest when the moon is over the with the shore. An error of only tenths of an inch in the tidal datum equator. The tides associated with these changes are called tropic and may result in the line of intersection moving a considerable distance equatorial tides when they are the strongest and weakest. The tides landward or seaward if the shore has a flat slope. Therefore, the accu- occurring when the moon is nearest the earth are called perigan tides racy of coastal boundaries has a direct relation with the accuracy of the and those occurring when the moon is farthest from the earth are called original tide observations. apogen tides.82 A Jag of a day or two is also found between the dec- The specific tidal datums that define the coastal boundaries pro- lination and the distance of the moon and the corresponding state of vide the elevation of a stage of the tide on an average basis. For in- stance, mean higher water is an average of the high waters. Because the magnitude of the rise and fall of the tide varies from day to day, tidal 76. P. SCHUREMAN, TIDE & CURRENT GLOSSARY 36 (U.S. Coast & Survey characteristics derived from daily observations may differ considerably Spec. Pub. No. 228, rev. ed. 1949). from the average or mean values over a long period of time. Therefore, 77. The tide-producing power of the sun is somewhat less than one half of the the average must be based on long-term observations before it can be tide-producing power of the moon. H. MARMER, TIDAL DATUM PLANES 2 (U.S Coast & Geodetic Survey Spec. Pub. No. 135, rev. ed. 1951). 78. ld. 83. ld. at 5-6. 79. Roberts, The Luttes Case--Locating the Boundary of the Seashore, 12 BAYLOR 84. ld. at 3. L. REV. 141, 149 (1960). 85. ld. at 4. 80. H. MARMER, supra note 77, at 6. 86. Roberts, supra note 79, at 150; Comment, Fluctuating Shorelines and Tidal 81. Roberts, supra note 79, at 149. Boundaries: An Unresolved Problem, 6 SAN DIEGO L. REV. 447, 450-51 (1969. 82. H. MARMER, supra note 77, at 5. 199 198 NORTH. CAROLINA LA [Vol. 53 1974] COASTAL BOUNDARIES considered an accurate value for the tidal datum. When only short- tury. Shortly after the accession of Queen Elizabeth 1, however, term observations are available, they may be corrected to long-term Thomas Diggs, a lawyer, surveyor and engineer, advanced a new mean values by comparison with simultaneous observations taken at theory of royal ownership of the foreshore in his book, Proofs Queen's Interest in Lands Left by the Sea and the Salt Shores from long-term observations. This process is described in Part IV. Thereof." According to Digges, lands beneath tidal waters as well as the foreshore itself were a separate category of property which could Observations over a period of nineteen years are generally used be acquired only through express grant from the sovereign. Appar- to determine tidal datums because all the cycles related to the phases, ently the Crown's claims were not at first accepted by the courts. In declinations and distance of the moon occur within this period. In the following century, Sir Matthew Hale, in his treatise, De Jure Maris, addition, the seasonal fluctuations of water level will be complete with- revived the Digges theory. in a year, and the effects of these non-tidal forces can be balanced. Lord Hale distinguished between fresh water streams, the seabed When long-term observations are used to determine tidal datums, the and tidal waters. According to Hale, the beds of fresh waters nor- datums will be applicable in future years unless the factors producing mally belonged to the riparian owner, while the seabed belonged to the sovereign and was incapable of private ownership. Tidal waters the tidal character have changed. The primary factor which might included arms and creeks of the sea as far as the ebb and flow of the change and cause a variance in the datum will be the hydrographic fea- tide, as well as the foreshore "between the high-water mark and the tures of the area. low-water mark. While Lord Hale admitted that the King could, and often did, make grants in tidal waters to his subjects, he main- B. The limits of Private Ownership tained that both the foreshore and the soil beneath arms of the sea (1) Use of the Menn High Water Line to Delimit the (a) Common-law developments 90. See generally S. MOORE, supra note 28, at 1-168. The Roman jurists regarded the sea and the foreshores as res com- 91. Fraser, supra note 27, at 317. munes, property which could be used by all, but which was incapable 92. I H FARNHAM, supra note 8, 9 39a. of private ownership. At common law, however, the sovereign 93. Viner's Abridgment mentions the unreported case of Digges v. Hammond in owned the sea and the seabed, as well as the foreshore, by right of which the Court of the Exchequer, around the year 1575, held that title in a salt marsh his prerogative as universal occupant, although much of the foreshore around Sandwich was in the upland owner rather than in the Queen. 16 C. VINER, was appropriated by private landowners prior to the sixteenth cen- supra note 38, at 575. See also Constable's Case, 77 Eng. Rep. 218 (K.B. 1601); Anonymous, 73 Eng. Rep. 737 (K.B. 1573). 87, INSTITUTES 2.1,1; DIGEST 1.8.2; W. BUCKLAND, A TEXT BOOK OF ROMAN LAW 94. The treatise was apparently written around 1666. It was discovered at Hale's 184, 186 (1921) of the Medieval English commentators also adhered to this death in 1676 but was not published until 1787. Note, Lord Hale and Business Aflected View. 89 SELDEN SOCIETY, FLETA 2-3 (H. Richardson & G. Styles ed. 1972). with a Public Interest, 43 HARV L REV. 759 (1930). 88. England claimed "dominion over portions of the North Sea, the Bay of Biscay, 95. The second part of Hale's treatise, entitled De Jure Portibus, dealt with public and the Atlantic from Cape Finisterre, Spain to Stadland, in Norway." E. BARTLEY and private rights with respect to harbors and ports. Comment, 79 YALE L.J.,supra THE TIDELAND OIL CONTROVERSY 8 (1953). See also The King v. Hampden, 3 How. note 23, at 782. State trials 825, 1023 (Ex. 1637); Constables Case, 74 Eng. Rep. 549 (K.B. 1578); 96. S. MOORE, supra note 28, at 370-72; see Carter v. Mureot, 98 Eng. Rep. 127 S. MOORE, supre note 28, at 376-83; J.SELDEN, MARE CLAUSUM 363-75, 382-93 (1663); (K.B. 1786); The King v. Wharton, 88 Eng. Rep. 1483 (K.B. 1702); Murphy v. Ryan 7 SELDEN SOCIETY , MIRROR OF JUSTICES 8 (W. WHITTAKER ed. 1895). In the contro- 2 Ir. R.C.L. 143 (1868). versy over freedom of the seas in the seventeenth century, English legal commenia- 97. S. MOORE, supra note 28, at 376. rs maintained that the Crown had property as well as jurisdictional rights to sea, in- 98. "For the second, that is called an arm of the sea where the sea flows and re- sisting that title to both the sea and the fundus maris or bed of the sea, taun aquae quam flows; and so far only as the sea flows and reflows." Id. at 378. soli, was in the King, See J.GOULD, supra note 30. 99. Id. 89. "The King by our law is universal occupant, and all property is presumed to 100. Although the king hath prima facie this right in the arms and creeks have been originally in the crown." 8 M. BACON, supra note 38, at 13; 2 W. BLACK- of the sea command jare, and in common presumption, yet a subject may have STONE, COMMENTARIES *51. such a right. And this he may have two ways, 1st. By the king's charter or grant; and this is without question... 2d. The second right is that which is acquired or acquirable to a subject by custom or presciption, and I think it very clear, that the subject may by custom and usage or prescription have the true propierty and interest of manyof these several maratime interests, which we have before stated to be prima facie belonging to the king. Id. at 384-85. 200 NORTH CAROLINA LAW REVIEW [Vol. 53 1974] COASTAL BOUNDARIES 201 "prima facie" belonged to the King. "It is admitted that de jure Florida, Maryland, Mississippi, New Jersey, New York, communi between the high water mark doth prima facie belong to the North Carolina, Oregon, Rhode Island, South Carolina, and king...Although it is true, that such shore may be, and commonly Washington. Some state, however, have departed from the com- is parcel of the manor adjacent, and so may be belonging to a subject, mon law position. Massachusetts and Maine, for example, recog- as shall be shown, yet prima facie it is is the king's." nize the low water line in accordance with a colonial ordinance. Dela- warc, Georgia, New Hampshire, Pennsylvania, and Vir- To support his theory of royal ownership, Lord Hale relied on ginia also use the low water line. Texas recognizes the English posi- Philpott's Case, decided in 1632. This decision, however, was not 53. P. 2d. 390 (3d Dist. Ct App. 1935), rev'd on other grounds, 6 Cal. 2d 765, 59 P.2d 473 (1936); CAL. CIV. CODE &670 (West 1954). reported, and Johnson v. Barret, decided more than a decade later 112. Bloom v. State Water Resources Comm'n, 157 Conn. 528, 254 A.2d.884 Hale's position was Bulstrode v. Hall in 1662. The new doctrine be- (1936). came firmly established by the end of the seventeenth century and, 113. Trustees of Internal Improvement Fund v. Welstone, 222 So. 2d 10, 14 (Fla. since that time, the ordinally high water mark has been considered the (1969); Miller v. Bay-to Gulf, Inc. 141 Fln. 425,458,193 So. 425, 427 (1940); White by presciption or express grant from the King. v. Hughes, 139 Fla. 54, 61, 190 So. 446, 449 (1939). Fla CONST. art X, 9 11. The English rule was accepted by most American jurisdictions and 114. Van Ruymbeke v. Patapseo Indus. Park, 261 Md. 470, 475, 276 A.2d 61,64 is not followed in Alabama, Alaska, California, Conneticut, (1971); Troy v. Atlantic Gulf & Pac Co., 176 Md. 197, 206, 4 A.2d 757, 762 (1939). 101. Id. at 10-25. 115. Harrison County v. Guice, 244 Miss. 95, 106, 140 So. 2d. 838, 842 (1962); 102. Id. at 12-13. State ex rel Rice v. Stewart, 184 Miss. 202, 228-31, 184 So. 44, 49-50 (1938), alf'd on 103. 8 Car. 1, f 66 (1632). The Philpott case was discussed in Attorney-General rehearing, 184 Miss. 204, 185 So. 247 (1939); Rouse v. Saucier's Heirs, 166 Miss. 704, v. Chamberlaine, 70 Eng. Rep 122,123 (V. Ch. 1858); Attorney-General v. Richards, 712-13, 146 So, 291, 291-92 (1933); Money v. Wood, 152 Miss. 17, 28-30, 118 So. 357, 145 Eng. Rep. 980 (Ex. 1795). See also 16 C. VINER, supra note 38, at 576. But see 359-60 (1928). 1 H. FARNHAM, supra note 8, 9 39b. The decree is reprinted in S. MOORE, supra note 116. O'Neil v. State Highway Dep't, 40 N.J. 307, 235 A,2d 1 (1967);Baily v. Dris- 28, at 895-907. coll, 19 N.J. 363, 367, 117 A.2d 265, 267 (1955). 104. 82 Eng. Rep. 887 (K.B. 1646). 117. Tiffany v. Oyster Bay, 2098 N.Y. 1, 102 N.E. 585 (1913); In re Site for Hunts 105. 82 Eng. Rep. 1024 (K.B. 1662). "ET in case fuit soven foits affirme $ Point Seweage Treatment Works, 281 App. Div. 315, 119 N.Y.S.2d 391, 404 (1953); Gucker v. Town of Huntington, 254 App. Div. 10, 3 N.Y.S. 2d 788, 790-91 (1958) nient deny que le soil de touts rivers cy haut que la est fluxum & refluxum maris est 118. Carolina Beach Fishing Pier, Inc. v. Town of Carolina Beach, 277 N.C. 297, in le Roy * nemy in les segueurs des manners *e sans presciption." It was fre- 177 S.E.2d 513 (1970). quently affirmed and never denied that the soil to all rivers as high as the tide ebbs 119. Winston Bros. Co. v. State Tax Comm'n, 156 Ore. 505, 510, 62 P.2d 7,9 and flows is in the King, and never in the lords of the manors without grant or prescip- (1936); Hume v. Roque River Packing Co. 51 Ore. 237, 243, 92 P. 1065, 1068 (1907), tion.) Id. 120. Attorney General ex rel. Jackvony v. Powel, 67 R.1 218, 21 A. 2d 554 (1941); 106. Earl of Salisbury v Joyn, 84 Eng. Rep. 992 (K.B. 1676); Whitaker v. Wife, Allen v. Allen, 19 R.1 114, 32A 166 (1895). 84 Eng. Rep 479 (K.B. 1670); Kirby v. Gibs, 84 Eng. Rep. 183 (K.B. 1666). 121. Cape Romain Land & Improvement Co. v. Georgia-Carolina Canning Co., 148 107. Duke of Beaufort v. Mayor of Swansea, 154 Eng. Rep. 905 (Ex. 1849); Attor- S.C. 428, 146 S.E. 434 (1928). ney-General v. Burridge, 147 Eng. Rep. 335, 342 ( Ex. 1822); Attorney-General v. Par- 122. Hughs v. State, 67 Wash, 2d 799, 140 P 2d 20 (1966); Harkins v. Del Pozzi, meter, 147 Eng. Rep. 345, 352 (Ex. 1811); Rex v. Smith, 99 Eng. Rep 283 (K.B., 50 Wash 2d 237, 310 P. 2d 532 (1957); Wilson v. Howard, 5 Wash App. 169, 486 P.2d 1780); Warren v. Matthews, 91 Eng. Rep. 312 (K.B. 1704); Le Strange v. Rowe, 176 1172 (1971). Eng. Rep. 903 (N.P. 1866). 123. Michaelson v. Silver Beach Improvement Ass'n Inc. 342 Mass. 251, 253, 173 108. However, it can be argued that this was a rule of evidence rather than a princi- N.E.2d, 273, 275 (1961); Iris v. Town of Hingham, 303 Mass, 401, 403, 22 N.E. 2d 13, ple of substantive law, See Fraser, supra note 27, at 321-22. 15 (1939). The ordinance of 1647 provides that the low water mark shall be used if it does not extend more than one hundred rods, about 1650 feet, beyond the high water 109. United States v. Property on Pinto Island, 74 F. Supp. 92, 104 (S. D. Ala. mrk. 1947); City of Mobile v. Eslava, 9 Port. 577 (Ala. 1839), affd, 41 U.S. 234 (1842). 124. In re Hadlock, 142 Mc. 116, 119, 48 A.2d 628, 630 (1946); Sinford v. Watts 110. Demmert v. City of Klawock, 199 F. 2d. 32,33 (9th Cir. 1952);ALASKA STAT, 123 Me. 230, 232, 122 A. 573, 574 (1923); Snow v. Mt. Desert Island Real Estate Co., & 38.05.320 (1962). 84 Mc. 14, 17. 24 A, 429, 430 (1891). 111. People v. William Kent Estate Co.; 242 Cal. App. 2d. 156, 51 Cal. Rptr. 215, 125. State ex rel. Buckson v. Pennsylvania R.R., 228 A.2d 587, 601 (Del. Super, 218 (1st Dist Ct. App. 1966); Katenkamp v. Union Realty Co. 11 Cal. App. 2d 63, Ct. 1967). 126. GA CONST. art 1, & 6 GA CODE ANN. & 85-1309 (1970). 127. Nudd v. Hobbs, 17 N.H. 524 (1845). 128. Commonwealth ex rel. Hansel v. Y.M.C.A., 169 Pa. 24, 38, 32 A. 121, 127 (1895); Wall v. Pittsburgh Harbor Co., 152 Pa. 427, 25 A. 647 (1893); Matthews v. Bagnik, 157 Pa. Super. 115, 119, 41 A.2d 875, 877 (1945). 129. Whealton & Wisherd v. Doughty, 116 Va. 566, 572, 82 S.E. 94, 96 (1914). 203 202 NORTH CAROLINA LAW REVIEW 1974] COASTAL BOUNDARIES [Vol. 53 tion with respect to common law grants, uses the line of higher happen between the full and change of the moon." Only the last high tide when Spanish or Mexican grants are involved. Louisiana category of tides, according to Hale, should be used to determine the high water mark. This formulation first received judicial recognition has adopted the civil law boundary of the line highest winter tide. in Kirby v. Gibs, a seventeenth century case, in which the reporter And in Hawaii, the upland owner has title to the upper reaches of the remarked "Note, the high water marks [sic] is as far as is overflowed wash of the waves."" by inope tides or ordinary tides." (b) The Borax decision Unfortunately, it was not altogether clear whether "neap tides" to Hale meant ordinary or usual tides or whether he was referring only At common law as a general rule the foreshore belonged to the to those tides which occur twice monthly at the moon's quadratures. sovereign while upland property was privately owned. All lands cov- This uncertainty was not entirely resolved until Attorney General v. ered by the "flux and reflux of the sea at ordinary tides" were deemed Chambers in the mid-nineteenth century. Chambers involved a dis- to be, part of the foreshore. Therefore, the "ordinary high-water pute between the Crown and a littoral owner over coal deposits under mark constituted the landward limit (and the ordinary low-water mark the foreshore. At issue was the precise location of the boundary be- constituted the seaward limit) of the foreshore. Moreover, the or- tween their respective tracts. Both parties agreed that this boundary dinary high water mark also constituted the seaward limit of the up- was the "ordinary high-water mark. The defendant, however, land. Its utility as a property boundary was substantially reduced, argued the the ordinary high-water mark was comprised of reap tides however, because of the obscurity associated with the concept of the only, while the Crown urged that the "medium line of high water-mark "ordinary" tide. between neap and spring tides" was the proper standard. In his treatise De Jure Maris, Lord Hale described three varieties of tides: (1) the high spring tides which occur at the two equinoctial periods; (2) the spring tides which occur twice a month at the full According to the Chancellor, the high water mark rule was in- tended to vest the littoral proprietor with the land which was for the most part dry and usable, while leaving the Crown only that land which and change of the moon;'". and (3) ordinary tides or neap tides, which was incapable of ordinary cultivation. Therefore, only the usual or or- Groner v. Foster, 94 Va. 650, 657, 27 S.E. 493, 496 (1897); VA CODE ANN && 62.1- ordinary tides should be considered. Unusually high (spring) and un- usually low (neap) tides should be igored for purposes of determining .2 (1973). the extent of private ownership. The ordinary high-water mark was, therefore, declared to be "the line of the medium high tide between 130. Rudder v. Ponder, 156 Tex. 185, 193, 293 S.W. 2d 736, 741 (1956); DeMerit the springs and the neaps." v. Robinson, 102 Tex. 358, 361, 116 S.W. 796, 797 (1909). 131. Luties v. Texas, 159 Tex. 500, 324 S.W.2d 167 (1958). The line of mean higher high tide is the higher of the daily high tides at a particular locality over a nine- tide will be above the line of mean high tide, but where there is only one high tide per day the lines will be identical. See generally City of San Francisco, v. Le Roy, 138 U.S. 656 (1891); United States v. Pacheco, 69 U.S. (2 Wall.) 587 (1864); Apalachicola 138. "Ordinary tides or neap tides, which happen between the full and change of the moon; and this is that which properly littus moris...And touching this kind Land & Dev Co. v. McRea, 86 Fla. 393. 98 So. 505 (1923); Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1919). of shuar, siz, that which is covered by the ordinary flux of the sea, is the business of 132. 3 LA CIV CODE ANN, art 451 (West 1952). In the case of a Spanish land our present enquiry." Id. grant, however, the mean high water is used. New Orleans Land Co. v. Board of 139. 84 Eng. Rep. 183 (K.B. 1666). 140. Id. 134. Blundell v. Catterall, 106 Eng. Rep. 1190, 1199 (K.B. 1821). 141. Gay, The High Water Mark: Boundary Between Public and Private Lands, 18. 135. I.A. SHALOWITZ, SUPRA NOTE 5, AT 90. U. FLA. L. REV. 553, 560 (1966). One commentator, writing in 1830, interpreted the term "neap tides," as used by Lord Hale, to mean those tides which occur "twice in the 136. "The high spring tides, which are the fluxes of the sea at those tides that hap- Subject in the Sea-Shores of the Realm (1830), reprinted in S. MOORE, supra note 28, pen at the two equinoxials; and certainly this does not de jure communi belong to the at 667-892. crown. For such spring tides many times overflow ancient meadows and salt marshes, 142. 43 Eng. Rep. 486 (Ch. 1854). which yet unquestionably belong to the subject." S. MOORE, supra note 28, at 393. 143. Id. at 488. 137. "The spring tides which happen twice every month, at full and change of the 144. Id. at 490. moon, and the shore in question, is by same opnion not denominated by these tides neither, but the land overflowed by these flaxes ordinarilly belong to the subject prima facie, unless the King hath a prescription to the countrary." Id. 204 NORTH CAROLINA LAW REVIEW [Vol. 53 1974] COASTAL BOUNDARIES 205 Although some American courts cited the Chambers decision with approval, and adopted the Chancellor's "medium high tide" formula- Borax Consolidated Ltd. v. City of Los Angeles is the leading tion, most the American cases prior to the Borax decision merely American decision on the methodology of coastal boundary determina- spoke of the "high water mark" or the ordinary high water tion. The case involved the boundary between the upland and the mark without attempting a precise definition. While some deci- foreshore of Mormon Island in San Pedro Harbor. The upland prop- sions mentioned Lord Hale's treatise, De Jure Maris, no attempt erty was owned by the Borax Company under a patent from the was made to clarify Hale's ambiguous use of the term "neap tides," federal government while the foreshore and adjacent submerged lands Angell's treatise, written in 1847, for example, declared that in the belonged to the City of Los Angeles under a grant from the State of United State private ownership extended "down to the edge of the" California. The City's suit to quiet title was dismissed by the district high water mark of the ordinary or neap tides." This confusion court on the ground that the limits of the federal grant could not be was reflected in Teschemacher v. Thompson, a leading nineteenth determined in such a proceeding. On appeal, the court of appeals century case, in which the court defined the "ordinary high water reversed, and construed the "ordinary high water mark" as the "mean which happen between the full and change of the moon, twice in ev- high-tide line". rejecting the neap tide standard proposed by the Borax court was apparently unaware of the Chambers case, decided seven States Supreme Court. years earlier. Moreover, tile language of the Teschemacher decision The Supreme Court emphasized that the term "ordinary high fer little among themselves, making them usual or "ordinary" tides. tideland extends to the high water mark...This does not mean, as The Teschemacher case has been followed in California and has petitioners contend, a physical mark made upon the ground by the wa- apparently led a court into similar error in at least one other state. ters; it means the line of high water as determined by the course of 145. Commonwealth v. Roxbury, 15 Mass (9 Gray) 451, 483 (1857); Stevens v. the tides. Patterson & N.R.R., 34 N.J.L. 532, 541 (Ct. Err & App. 1870). After reviewing Lord Hale's definition of the foreshore and the 146. East Boston Co. v. Commonwealth, 203 Mass. 68, 89 N.E. 236 (1909); New language of the Chambers case, the Supreme Court declared: "in Jersey & Iron Co. v. Morris Canal & Banking Co., 44 N.J. Eq. 398, 401, 15 A. 227, determining the limit of the federal grant, we perceived no justificaiton 228 (1888). for taking neap high tides, or the mean of those tides, as the boundary 147. E.g. Storer v. Freeman, 6 Mass. 435, 439 (1810). between upland and tideland, and for thus excluding from the shore 148. E.g. Mather v. Chapman, 40 Conn. 382, 400 (1873); Church v. Meeker, 34 the land which is actually covered by the tide most of the time." In- Conn. 421, 424 (1867); French v. Bankhead 51 Va. 65, 73, 11 Gratt, 136, 160 (1854) stead the Court adopted the mean high tide line standard and the sur- 149. E.g. Mather v. Chapman, 40 Conn. 382, 400 (1873); Church v. Meeker, 34 vey methodology described in such Coast Survey publications as Conn. 421, 424 (1867); Storer v. Freeman, 6 Mass. 435, 439 (1810); Ex parte Jennings, Marmer's Tidal Datum Planes. 6 Cow, 518 (N.Y. 1826). 150. See, e.g., Commonwealth v. Rosbury, 75 Mass. (9 Gray) 451, 483 (1858). In view of the definition of the mean high tide, as given by the 151. J. ANGELL, TIDE WATER 71 (2d ed. 1847); Gay, supra note 141, at 561. United States Coast and Geodetic Survey that 'mean high water 153. Id. at 21-22. 157. 296 U.S. 10 (1935). 154. I A. SHALOWITZ, supra note 5, at 93. 158. Ch. 115, [1911] Cal. Laws 1256. 155. Otey v. Carmel Sanitation Dist. 219 Cal. 310, 26 P.2d 308 (1933). City of 159. City of Los Angeles v. Borax Consol, Ltd. 5 F. Supp. 281 (S.D. Cal. 1933). Oakland v. E.K. Wood Lumber Co., 211 Cal. 16, 292 P. 1076 (1930); Forgeus v. Santa 160. 74 F. 2d 901 (9th Cir. 1935). 161. 296 U.S. 10 (1935). Cruz County, 24 Cal. 193, 140 P. 1092 (3d Dist Ct. App. 1914). A California court 162. Id. at 22. But see Udall v. Oelschlaeger, 389 F. 2d 974 (D.C. Cir.), cert de- in People v. William Kent Estate Co., 242 Cal. App. 2d 156, 51 Cal. Rpir. 215 (1st nted, 392 U.S. 909 (1968). Dist. Ct. App. 1966), held that the term "neap tides" as used in the Teschmacher case 163. 296 U.S. at 26-27. referred to true twice-a month neap tides rather than ordinary or daily high tides. 164. Especially II. MARMER, supra note 77. 156. Miller v. Bay-to-Gulf, Inc., 141 Fla. 452, 193 So. 425 (1940). 206 NORTH CAROLINA LAW REVIEW (Vol. 53 at any place is the average height of all the high water at that place over a considerable period of time, and the further observa- tion that "from theoretical considerations of an astronimical char- acter" there should be "a periodic variation in the rise of water above sea level having a period of 18.6 years," the Court of Appeals directed that in order to ascertain the mean high tideline with req- uisite certainty in fixing the boundary of valuable tidelands, such as those her in question appear to be, "an average of 18.6 years should be determined as near as possible." We find no error in that instruction. While the question before the Supreme Court in the Borax case was the interpretation of the phrase "line of mean high tide" as used in a statutory grant to the City, the Supreme Court equated "mean" with "ordinary" and clearly considered the term "mean high water line" equivalent to the common-law "ordinary high-water mark," as defined by the court in Chambers. This approach is justified because the spring tides occur with the same frequency as the ncap tides, and since one is as much above a medu=iun plane as the other is below it, these tides cancel each other. Moreover, it si considerably easier from a techincal point of view to determine a plane of mean high wate which includes all tides than to calculate a plane that excludes spring and neap tides.165 The Borax definition of ordinary high tide must be used to deter- mine the seawad boundary of any federal grant.166 Arguably, ther- fore, Borax may, for most purposes, overrule contrary state decisions. Nevertheless, since Borax is limited to federal grants, the case appar- ently would not be binding in Texas or the original states which have no federal public domain lands. Moreover, presumably Borax would not apply to valid French, Spanish or Mexican grants made prior to ac- quisition of these areas by the United States,107 thus limiting its applica- tion in some parts of Florida, the Gulf Coast, and California. Because Borax is a progressie decision which incorporates the most accurate methodolgy for determining tidal boundaries; it ha been followed by a number of stat courts and should eventually displace the older common-law "ordinary high water mark" standard. 165. 1 A. Sshalowitz, supra note 5, at 96. 166. 296 U.S. at 22 167. Carpenter v. City of Santa MOnica, 63 Cal. App.2d 772,783-87,147 p.2d 964,970-72 (1944). 168. O'Neill v. State Highway Dep't, 50 N.J.307,323-24,235 a.2d 1, 9-10 (1967); Carolina Beach Fishing Pier, Inc, v. Town of Carolina Beach, 277 N.C.297,303,177 S.E.2d 514,516(1970); Wilson v. Howard, 5 Wash. App.169,486 P.2d 1172 (1971). 1974) COASTAL BOUNDARIES 207 (2)Private Property Rights in Tidally Affected Areas (a) Tests of navigability for title purposes Since the mean high water line is the intersection of the plane of mean high water with the shore, in theory it can be located wherever a tidal effect can be foun.109 It does not necessarily follow, however, that the mean high water line should be used to delimit the extent of private owmership in every instance. Where the coastline is relatevely straight, the mean high water line is generally the proper coastal bound- dary. Where the coastline is indented, however, as in the case of tidal basins and river, one may: (1) follow the sinuosities of the shore in- side the coastal indentation as far as the tide ebbs and flows; (2) follow the sinuosities of the shore inside the coastal indentaion as far as the tidally affected waters are navigable; or (3) draw a straight line across the mouths of the coastal indentation and treat it as a separate water- body for title purposes.170 A state's choice of one particular approach over another seemignly depends on the nature of its test of navigabil- ity for title purposes. In England, where ownership of submerged lands was associated with the ebb and flow of the tides171 rather than upon actual naviga- bility, tidally affected rivers and basins were called "arms and creeks of the sea" and title to their submerged beds was vested prima facie in the King.172 In his treatise, De Jure Maris, Lord Hale declared "(T)hat is called an arm of the sea where the sea flows and reflows, and so far only as the sea so flows and reflows."173 However, tidal waters could be fresh as well as salt, as for example, where fresh water was backed up because of the action of the salt water. According to 169. But see Part IV C(2) (c) infra. 170. In order to locate exactly where a tributary waterway joins the principal water- way, one must consider the physical configuration of the tributary waterway at its terminus. The headland-to-headland approach, which is base on this principle, has been applied in international law to determine the limits of inland waters. S. Swarsrayder Tom. Turle-MIle Limit of The Immortal. Slas 224-25(1972). The headland-to-headland approach also may be used in commection with the S ubmerged Lands Act. See generally Shalowitz, Boundary Problems Raised by the Submerged Lands Act,54 Colum. L. Rev.1021(1954). A headland is the apex of a salient of the coast, the farthest point at which a por- tion of land extends into the water, or the point on the shore at which there is an appre- ciable change in direction of the general trend of the coast. In theory, each terminus of the headland-to-headland line is taken as a point at the outermost extension of the headland from which it is drawn. 1 A.Shalowitz, supra note 5, at 63-65. 171. See discussion in Part III B(1)(a) supra. 172. 1 11. Farnham, supra note 8,&& 37-40. 173. S.Moore, supra note 28, at 378. 208 NORTH CAROLINA LAW REVIEW [Vol. 53 1974] COASTAL BOUNDARIES 209 Lord Hale: "But if it seems that although the water be fresh at high Although most of the states rejected the ebb-and-flow test for reg- water, yet the denomination of an arm of the sea continues if it flows ulatory purposes in favor of navigablility in fact, it is often unclear and reflows as in Thames."174 It remains the rule in England,175 as which test of navigability applied for purposes of determining title to well as in some American jurisdictions,176 that where fresh waters are submerged lands.184 In some jurisdictions state ownership extends to subject to tidal influence, the land beneath such waters is owned by the all lands subject to the tide, while in others such rights depend upon sovereign. the actual navigability of the watercourse. In some of these latter In America, some states at first adopted a test of navigability based states, however, a finding of tidal effect raises a presumption of navi- on whether the tide ebbed and flowed in a particular water course.177 gability and state ownership. Eventually, however, the so-called ebb-and-flow test was displaced by the concept of "navigability in fact."178 In the nineteenth century the (i) The ebb-and-flow test United States Supreme Court utilized the navigability-in-fact standard In Louisiana, Maryland, New Jersey, New York and Texas state for purposes of defining the scope of federal regulatory power.179 The ownership of the bed extends to all lands affected by the ebb and flow Court in The Daniel Ball set forth the following definition of naviga- of the tides. bility in fact: The Lousiana test for title to tidal watercourses was articulated in Those rivers must be regarded as public navigable rivers in law State v, Bayou Johnson Oyster Co.185 The Lousiana Supreme Court which are navigable in fact. And they are navigable in fact when declared that the State acquired the soil beneath "the waters of inter- they are used, or are susceptible of being used, in their ordinary communicating sounds, bayous, creeks, channels, lakes, bays, coves, condition, as highways for commerce, over which trade and travel and inlets, bordering upon the Gulf of Mexico and within the ebb and are or may be conducted in the customary modes of trade and flow of the tide"186 upon admission to the Union. The case involved travel on water.189 the State's claim to certain sounds and bayous also claimed by the de- At the present time it is well settled that the federal test of navigability fendant through a grant of swamp and overflowed land. The Bayou for purposes of both admiralty181 and commerce clause182 jurisdiction Johnson case appeared to be a clear statement of the ebb-and-flow for is that of navigability in fact.183 title test.187 More recently, however, the Louisiana courts have con- 174. Id. sidered navigability in fact as well as the ebb and flow of the tides.188 175. malcomson v. O'Dea II Eng. Rep. 1155 (1863): Rex v. Smith, 99 Eng. Rep. In Terrebonne Parish School Board v. Texaco, Inc.,189 which involved 283 (K.B. 1780). mineral leases for the beds of Mud Hole Bay and Mud Hole Bayou, 176. Peyroux v. Howard. 32 U.S. (7 Pet.) 324, 343 (1833)(admiralty jurisdiction); the basic issue was whether either waterbody had been navigable at the Heckman v. Swett, 99 Cal. 303, 307, 33 P. 1099, 1101 (1893): simmons v. French, 25 time of Louisiana's admission to the Union.100 Although evidence was Conn. 346, 352 (1856); Stone v. City of Augusta, 46 Me. 127. 137 (1858); Common- wealth v. Vincent. 108 Mass. 441, 447 (1871); Attorney General v. Woods. 108 Mass. 184, See Leichty. The Source and Scope of Public and Private Rights in Navigable 436, 439 (1871); Gough v. Bell, 21 N.J.I,. 156, 160 (Sup. Ct. 1847); People v. Tibbetts, Waters, 5 LAND & WATER L. Rev. 391. 392-93 (1970). Confusion in the use of the 19 N.Y. 523, 528 (1859); Tinicum Fishing Co. v. Carter, 61 Pa. 21, 30 (1869); 1 H, various definitions of "navigability" and "navigable" has been a characteristic of the de- Farnham, supia note 8, & 38, at 179; J. Gould, supra note 30, & 44, at 104-05. But velopment of water law in this country. See Johnson & Austin, Recreational Rights and see Morgan v. Negodich. 40 La. Ann. 246. 3 so. 636 (1887). Titles to Beds on Western Lakes and Streams, 7 NATURAL RESOURCES J. 1, 4 (1967). 178. Young v. Harrison. 6 Ga. 130 (1849); Spring v. Russell, 7 Me. 273 (1831); 186. Id. at 611, 58 So. at 407. Wilson v. Forbes, 13 N.C. 30 (1830) (per curiam); Carson v. Blazer, 2 Binn, 475 (Pa. 187. Contra, state ex rel. Bd. of Comm'rs v. Capdeville, 146 La. 94, 83 So. 421 1810). (1919); see Burns v. Crescent Gun & Rod Club, 116 La. 1038, 41 So. 249 (1906) 179. The Montello, 87 U.S. (20 Wall.) 430 (1874); The Daniel Ball, 77 U.S. (10 whereis navigability in fact is discussed in relation to private ownership of a bayou af- Wall.) 557 (1870); The propeller Genessee Chief v. Fitzbugh, 53 U.S. (12 How.) 443 fected by the ebb and flow of the tide. (1851). 188. D'Albora v. Gracia, 144 So. 2d 911 (La. Cir. Ct. App. 1962). 180. 77 U.S. (10 Wall.) 557, 563 (1870). 189. 178 So. 2d 428 (La. Cir. Ct. App.), cert. denied, 248 La. 465, 170 So. 2d 640 181. 1 BENEDICT ON ADMIRALTY 141 (7th ed. 1974). (1965), cert. denied. 384 U.S. 950 (1966). 182. See generally Bartke, The Navigation Sevitude and Just Compensation- 190. id. at 435. Struggle for a Doctrine. 48 Ore. L. Rev. 1 (1968); Hanks. Federal-State Rights and Relations. in 2 WATERS AND WATER RIGHTS 100.1 (R.Clark ed. 1967). 183. The United States Supreme Court in United States v. Appalachian Elec. Power Co., 311 U.S. 377 (1940), considered a nonnavigable watercorse to be navigable-in- fact for regulatory purposes if it could be made navigable by reasonable improvements. 210 NORTH CAROLINA LAW REVIEW [Vol. 53 1974] COASTAL BOUNDARIES 211 presented that the waters of the bay and bayou fluctuated with the tides for private purposes, since the land is held by the State in trust for the the court also considered evidence of use of the waters by commercial public.200 The Mississippi court did uphold tile sale of tidelands filled fishermen and moonshine whiskey runners (whose vessels were re- in by the State for a public park which was to include private building ported to draw five feet).101 The court found the waters navigable, lots in Treuting v. Bridge & Park Commission.201 However, the court stating: "Our Courts have repeatedly held that rovers pr bodies of wa- explained in International Paper CO. v. Mississippi State Highway De- ter, which are navigable in fact, are navigable in law."102 Thus the partment202 that such a sale must be for an overall public purpose. land beneath tidal watercourses in Lousiana may be sovereignty land In International Paper the State court affirmed that the state owns all if the tide ebbs and flows; however, the navigability of the watercorse lands below the high water mark subject only to the public interest in may also be taken into account. navigation and the power of Congress over navigation.203 The Maryland court had called its ebb-and-flow test193 and the In New Jersey the ebb and flow of the tides in a stream deter- federal navigable-in-fact test "functionally complimentary,"194 and a mines public ownership. The navigability test for public owenership suggestion of considering the navigability as well as the ebb and flow was specifically rejected in Schultz v. Wilson204 as lacking in certainty of the water has entered Maryland decisions involving title to sub- or accuracy.205 Moreover, in Yara Engineering Corp. v. New Jersey merged lands.193 However, a federal court has noted that Maryland Turnpike Authority206 the bed of a small tidal creek which was "not has not yet found it necessary to abandon its "ancient" standard,196 and a navigable stream or suitable or used for fishery" was declared to be the ebb-and-flow test, since waters which have been considered have state sovereignty land. The creek was entirely within a 12.9 acre tract been both subject to the ebb and flow of tides and navigable in fact. of land and at low tide contained no water except fresh water drained Mississippi courts have consistently held that the state as sovereign from higher ground.207 yet the creek did meet the test of ebb and flow owns all land "in the beds of all its shores, arms and inlets of the sea, with the tides.208 New Jersey's claim to tidally affected creeks and es- wherever the tide ebbs and flows."197 The phrase navigable river is tuaries is consistent with its expressed claim to all "tide-flowed lands held in Mississippi to be a technical term of common law. "A river up to the high-water mark."209 is navigable in the technical sense, as high up from its mouth as the The New York rule as to title of tidal waters was set froth in Ful- tide flows. . . . Above that it may be a common highway, subject to ton Light, Heat & Power Co. v. State.210 The case, which involved title the use of the public for navigation....but it is not technically a to the bed of a fresh water stream, held that "[i]n law, the term "navi- navigable river."196 In fact, a riparian owner on the Mississippi gable river" has received a technical application to rivers, or arms of River above where the title ebbs and flows owns tile title to the bed of the sea, in which the tide ebbs and flows."211 At common law the title the river to the center of the stream"199 Mississippi courts have also to the beds of tidal streams was fixed in the Sovereign, Since New consistently held that lands under navigable waters cannot be conveyed York had adopted the common law,the Oswego, being nontidal, was 200. State v. Hardee. 259 S.C. 535, 193 S.E.2d 497 (1972). 191. Id. at 433. Evidence was also admitted by an expert in micro-paleontology 201. 199 So. 2d 627 (Miss. 1967). and ecology, by an expert in geology and geomorphology and by an expert geochemist 202. 271 So. 2d 395 (Miss. 1972). 192. Id.at 436. 204. 44 N.J. Super. 591, 131 A.2d 415 (App. Div.), cert. denied, 24 N.J. 546, 133 193. Wagner v. City of Baltimore. 210 Md. 615, 624, 124 A.2d 815, 819-20 (1956); A.2d 395 (1957). Clark v. Todd. 192 Md. 487, 492, 64 A2d 547, 549 (1949); Toy v. Atlantic Gulf & 205. "The navigability test could only be made certain by the adoption of arbitrary Pac. Co., 176 Md. 197, 206, 4 A.2d 757, 762 (1939). standards, such as depth of water, tonnage and the like, which would probably vary from 194. 0wen v. Hubbard, 260 Md. 146, 152 n.l. 271 A2d 672, 676 n.l (1970). stream to stream." Id. at 604, 131 A.2d at 423. 195. See Van ruymbeke v. Patapsco Indus. Park, 261 Md. 470, 276 A.2d 61 (1971); 206. 49 N.J. Super. 603,141 A.2d 66 (App. Div. 1958) (percuriam). Green v. Eldridge. 230 Md. 441, 443-47, 187 A.2d 674,676-77 (1963). 207. Id. at 604-05, 141 A.2d at 66-67. 196. United States v. 222.0 Acres of Land. 306 F. Supp. 138 (D. Md. 1969). 208. Id. at 606, 141 A.2d at 67. 197. State ex rel. Rice v. Stewart, 184 Miss. 202, 230, 184 So. 44, 50 (1938); ac- 209. O'Neill v. State Highway Dep't, 50 N.J. 307, 323, 235 A.2d 1,9 (1967). cord, Rouse v. Saucier's Heirs, 166 Miss. 704, 713, 146, So.291, 291-92 (1933); Money 210. 200 N.Y. 400, 94 N.E. 199 (1911). 198. State ex rel. Rice v. Stewart. 184 Miss. 202, 225, 184 So. 44, 47 (1938). 211. Id. at 412, 94 N.E. at 202. 199. The Steamboat Magnolia v. Marshall, 39 Miss. 109 (1860). 212 NORTH CAROLINA LAW REYIEW [Vol. 53 1974] COASTAL BOUNDARIES 213 nonnavigable for title purposes and subject to private ownership.212 (ii) The navigability-in-fact test Discussions of navigability by New York courts after Fulton center on the obstruction of particular waters for navigation and the right of the Many states have rejected the ebb-and-flow test and substituted public to so navigate.213 There are inconsistencies in New York lower tests of navigability similar to the federal navigability-for-title test. In court decisions, however, as to whether navigability in fact must be con- California, Connecticut, Florida, North Carolina and Washington these sidered to determine the ownership of lands under tidal waters.214 navigability tests have been applied to tidal watercourses, although not always in the context Of title determination. In Texas water law has been shaped by Spanish civil law as well Ownership of the beds of tidal watercourses was determined by as by the English common law. In 1859 in City of Galveston v. the navigability of the creeks or estuaries in early California cases. In Menard215 the Texas Supreme Court determined that ownership of Bolsa Land Co. v. Burdick222 and Forestier v. Johnson223 the question land beneath Galveston Bay, where the tide ebbed and flowed, was of private ownership was discussed as it related to the public right to vested in the state.216 More recently in Lorino v. Crawford Packing hunt or fish on certain waters. Bolsa involved an estuary and its tribu- Co.217 the court stated: "The bays, inlets, and other waters along the tary tidal sloughs. The estuary, however, had been dammed, thereby Gulf Coast which are subject to the ebb and flow of the tide of the Gulf eliminating the tidal effect, and the court permitted the exclusion of of Mexico are defined as navigable waters."218 Further, in the opinion the public, thus recognizing private ownership of the bed of the es- of the court, the lands under such wates were owned by the State and tuary.224 In Forestier however, the court upheld the public right to fish constituted public property held in trust for the people.219 Navigability and hunt on the waters of a tidally-affected 302-acre bay,225 but also of streams for title purposes in Texas has been defined by legislation220 recognized private ownership of the land beneath the bay.226 The that has had the effect of perpetuating the Mexican and Spanish civil test for public ownership of a tidal watercourse was not, then, the law rule that ownership of all streams remains in the sovereign.221 ebb-and-flow test.227 One test used by an intermediate court was "(a Thus, though Texas law uses the term navigability when considering stream's) practical utility for navigation during ordinary stages of water ownership of streams, it appears that the beds of tidal streams in Texas at any particular time.228 Bohn v. Albertson,229 also an intermediate are state owned, whether navigable in fact or not. court decision, discussed the federal navigability for title test,230 con- cluding that "(n)avigability is largely a question of fact.231 The court 212. ld. at 415-16, 94 N.E. at 203. then examined the "pleasure boat" navigability test232 and applied that 213. E.g., Van Cortlandt v. New York Cent. R.R., 265 N.Y. 249, 192 N.E. 401 test to the waters involved to find them navigable.233 However, title (1934) (action for nuisance for obstructing a river): People ex rel. Lehigh Valley Ry. to the land remained in the private owner because his land had been v. State Tax Comm'n,247 N.Y. 9. 159 N.E. 703 (1928) (railroad bridge allegedly ob- submerged by avulsion.234 To be considered sovereignty land in Cali structing navigation on the Oswego River); People v. Delaware & Hudson Co.213 N.Y. 194,107 N.E. 506 (1914) (alleged public nuisance obstructing a navigable for title 222. 151 Cal. 254, 90 P. 532 (1907). stream); Fairchild v. Kraemer, 11 App .Div. 2d 232,204 N.Y.S.2d 823(1960)(right 223. 164 Cal. 24, 127 P. 156 (1912). of public to anchor a privately owned tidal basin). 224. 151 Cal. at 260, 90 P. at 534. 214. Compare State v. Bishop, 75 Misc. 2d 787, 348 N.Y.S.2d 990 (Sup. Ct. 1973) 225. 164 Cal. at 33-34, 127 P. at 160. (the state's claim to tidal marshland below the mean high water line depended upon *226. Id. the navigability in fact of the tidal marsh), with In re Schurz (Harding) Ave., 278 App. 227. This test had been rejected earlier in Churchill Co. v. Kingsbury, 178 Cal. 554, Div. 309. 104 N.Y.S.2d 395 (1951), rev'd per curiam, 2 N.Y.2d 859, 161 N.Y.S.2d 124, 558, 174 P. 329, 330 (1918). 141 N.E.2d 615 (1957) (all land below high water mark was sovereignty land, not 228. City & County of San Francisco v. Main, 23 Cal. App. 86, 137 P. 281 (1st 216. Id. at 396. 229. 107 Cal. App. 2d 738, 238 P.2d 128 (1st Dist. Ct. App. 1951). 217. 142 Tex. 51, 175 S.W.2d 410 (1943). 230. Id. at ...., 238 P.2d at 131. 218. Id. at 55, 175 S.W.2d at 413. 231. Id. 219. Id. at 56, 175 S.W.2d at 413. 232. Id. at ...., 238 P.2d at 132-33. See Johnson & Austin, supra note 184, at 36- 220. TEX. REV. CIV. STAT. art. 5302 (1962). "All streams so far as they retain an 44 for a discussion of the pleasure boat test of navigability for privately owned bodies average width of thirty feet from the mouth up shall be considered navigable streams of water. ...." 233. 107 Cal. App. 2d at --, 238 P.2d at 135. 221. See Heard v. Town of Refugio, 129 Tex. 349, 103 S.W.2d 728 (1937); State 234. Id. v. Bradford, 121 Tex. 515, 50 S.W.2d 1065 (1932). 0 214 North Carolina Law Review {Vol.53 fornia, therefore, lands beneath tidal watercourses must underlie navigable waters, even if they are only navigable for recreational purposes. Connecticut has also asserted state ownership of the soil between the high and low-water marks only under navigable waters. The test of navigable waters in Connecticut was stated in Edward Balf Co. v. Harford Electric Light CO., a case concerning an inland river. This test is essentially the federal test for title, but as early as 1850 Connecticut had declared a tidal cove that was capable of floating only a "fish boat of skiff non-navigable. One can infer from these cases that Connecticut considers the test for state ownership in navigable waters to be navigability, not the ebb and flow of the tides. In Florida, sovereignty lands are defined as those beneath navigable waters,including the shore or the space between the high and low-water marks. Clement v. Watson and early Florida case, involved an assult arising from an alleged trespass in waters affected by the ebb and flow of ocean tides. The court stated that "{w}aters are not under our law regarded as navigable merely because they are affected by the tides and found the lands beneath the waters of the Watson cove to be privately owned. The court did not establish a strict test for navigablility,but listed size,depth and "other conditions" as considerations for determining whether waters were navigable "for useful public purpose". Although the Florida courts have not cited United States v.Holt State Bank for nabigabilty for title,later cases have linked the determination of navigability to commerce, thus appearing to follow the federal test. Inferentially,based on Clement v. Watson,public or private ownership of a tidal watercourse in Florida depends upon the navigability for commerce of the watercourse. 235. Blooni v Water Resourse Comm'n 157 Conn. 528,533,254 a.2d 884,887,(1969): Rocherster v. Barney,117 Conn.462,169 A.45 (1933) 236. 106 Conn. 315. 138 A. 122 (1927) 237. Town of Wetherfield v. Humphrey, 20 Conn. 218 (1850) 238. State v. Black River Phosphate Co.,32 Fla. 82n106n13 So.640,648 (1893). 239. 63 Fla. 109,58 So 25 (1912). 240. Id. at 110-11,58 So at 26 241. Id. at 112,58 So at 26 242. Id. at 113,58 So at 27 243. Id. at 112,58 So at 26 244. 270 U.S. 49 (1926)See text accompanying notes 280-82 infra. 245. Baker v. State,87 So.2d 497,498 (Fla. 1956): Lopez v. Smith,145 So.2d 509 (Fla Dist Ct app 1962) 246. See Tarpon Springs v. Smith,81 Fla. 479,498,88 So. 613,619 (1921): Lopez v. Smith, 109 So 2d 176 (Fla Dist CT App 1959) the North Caro 1974} COASTAL BOUNDARIES 215 North Carolina rejected the ebb-and-flow test in the nineteenth century. Public waters for title purposes ws defined by the courts at that time as those waters which provided common passage for sea vessels. The sea vessels test was replaced in 1952 by the navigablity-in-fact test. One federal court interpreted navigablility in fact broadly to include a tidal marsh which could only be crossed by a small boat at high tide if the northeasterly wind was not steady. However,the North Carolina Supreme Court has since defined navigable waters as those which in their ordinary state can be used for "water commerce, trade and travel". One commentator argues that North Carolina is still developing its navigability test and may return to the ebb-and-flow test to protect the foreshore from private appropriation. Under the Washington Constitution the State owns the beds and shores of all navigable waters up to the high water mark. In Wilson v. Pickett, the Washington Supreme Court determined the ownershop of the bed of a tidal river. The only evidence of navigablility of the river was that various tug boats and other small craft had towed logs along its banks. The Washington cour declard: "We don not believe,however,that the said constitutional provision was intended to include streams of the character of this one, but only such as are navigable for general commercial purposes. The private landowner,in the opinion of the Court, held title to the bed of the stream subject to the right of the public to float logs. More recently, in Strand v. State, the Washington court, citing United States v. Utah,determined the navigability of a tidal slough by considering the capability of the creek for carrying commerce. Since the slough could be used only at high tide and then only for a boat transporting fish, the slough 247. Wilson v. Forbes 13 N C 30(1828) 248. Home Real Estate Loan & Ins Co. v Parmele, 214 N C 63,197 S E 714 (1938) State v.Glen 52 N C 321 (1859). See Rice, Estaurine Land of North Carolina Legal Aspect of Ownership Use and Control 46 N C I Riv 779,7796-99(1986) 249. Resort Dev Co. v.Parmele 245 N C 689,71 S E 2d 474 (1952) 250. Swan Island Club v. White 114 F Supp 95 (E.D.N.C.1953) 251. Parmele v Eaton 240 N.C. 539,548,83 S.E. 2d 93,99 (1954) 252. Note, Defining Navigable Waters and the Application of the Public Trust Doctrine in North Carolina: A HIstory and Ananlysis,49 N.C.L. Rev.888,904,(1971) 253. Wash Const art 17 1. 254. 79 Wash 89,139 P.754(1914) 255. Id. at 90,139 P. at 755 256. Id. at 91,139 P. at 755 quoting Watkins v Dorris, 24 Wash. 636,644,64 P.840,843 (1901) 257. 79 Wash. at 90,139 P. at 755 258. 16 Wash. 2d 107,132 P. 2s 1011 (1943) 259. 283 U.S. 64 (1931). 260. 16 Wash 2d at 125,132,P.2d at 1019. NORTH CAROLINA LAW REVIEW 216 (vol.53 was found to be nonnavigable.201 Alabama, Oregon and South Carolina find tidal watercourses prima facie navigable and thus presume the land beneath the water- courses to be sovereign land, but this presumption of state ownership may be rebutted by a finding of non-navigability. It has been stated by the Alabama Supreme Court that all tidal navigable streams are prima facie public and navigable.202 An early decision, however, prima lacie, the character of being public and navi- gable, and to place the onus of proof on the party affirming the con- trary."263 In Alabama, navigability is a question of fact,264 and navi- gability has been defined in relationship to commercial uses of the water.205 Oregon recognizes the federal test for navigable inland waters,206 but considers streams in which the tide ebbs and flows prima facie navi- gable.207 In Guilliams v. Beaver Lake Club268 the Oregon court classi- fied streams and bodies of water into four categories.206 Those in which the tide ebbed and flowed wee "technically" denominated navi- gable, in which class the sovereign is the owner of the soil constituting the bed of the stream."270 South Carolina also considers tidal watercourses prima facie navi- gable. In 1884 in State v. Pacific Guano Co.271 the Sotuth Carolina court appeared to adopt the tidal test for ownership purposes, but modi- fied the ebb-and-flow test by allowing the presumption of navigalbility and State ownership to be rebutted by shoeing that "conditions and ob- jects of navigation do not exist."272 South Carolina continues to use 261. Id. at 125-28.132 P,2d at 1019-21. 262.sayre v. Dickerson. 278 Ala.477,491,179 So.2d 57,70 (1965) 263. Unitd States v. Property on Pinot Island,74F.Sup.92,104 (S.D.Ala. 1947);sue Walker v. Allen,72Ala,456,458 (1882). 265.Sullivan v. Spotswood, 82 Ala. 163,2 So.716 (1887). For a general discus- sion of Alabama title cases involving water boundaries see Cohen, Water Law in Ala- bama-A Comparative Survey,24 Ala. L. Rev. 453,468-72(1972) 266 See Lusher v. Reynolds,153Ore.625,56 P.Zu (1972). 267. Id. at 636,56 P.2d at 1162. 268. 90 Ore, 13,175.p,437 (1918). 269. The four categories wer (1) those waters in which the tide ebbs and flows; (2) those waters which are navigable in fact for boats, vesels or lighters; (3) streams which are not navigable for any purpose; and (4) the larger rivrs which were capable of carrying a great volume of commerce. Id. at19,175 p. at439. 270.Id. 271.22 S.C.50 (1884) 272.Id. at 56. 1974) COASTAL BOUNDARIES 217 the term "navigable" in relationship to tidal streams, without defining the term.273 (iii) The Federal test of navigability for title purposes The various state tests of navigability for title purposes have been reviewed;however, there remains a question of whether federal, rather than state law, should control the legal test of ownership to the beds of tidally-affected watercourses. The thirteen original states and Texas hold title to land underlying nabigable streams and tidewaters by virtue of their sovereignty,274 while other states acquired it with the grant of statehood.275 Uncertainties caused by the Tidelands Decisions"76 were resolved by the Submerged Land Act,277 which reaffirmed state ownersjip of lands under both in- land navigable waters and tidewaters.278 Whether title to the bed of a particular inland stream passed to the state on statehood is considered to be a question of federal la.279 The test to detemine whether a stream is navigable for title purposes under federal law was announced in United States v. HOlt State Bank. in which the Court d274 (S)treams or lakes which are navigable in fact must be regarded as navigable in law;...they are navigable in fact when they are used or are susceptible of being used, in their natural and odinary condition, as highways for commerce, over which trade and travel are or may be conducted in customary modes of trade and travel on water....201 273.Ef. Statev. Hardee,259 S.C.535.193 S.E.2d 497(1972) (lower court's find- ing of fact as to navigability upheld). See generally Clineburg & Krahmer, The Law Pertaining to Estmarine In South Carolina, 23S.C.L. Rev.7(1971) 274. See generally Leighty, supra note 184. 275. Pollard's lessee v. Hagan, 44 U.S. (3 How)212 (1845). 276. United States v. Texas, 339 U.S,707(1950);United States v. Lousiana,339 U.S. (1950); United States v. California. 332U.S. 19 (1947). Although the hold- ing in these opinions concerned the state ownership of the marginal sea beyond the low water mark, the stats were apprehensive about their titles to other submerged lands. Leighty, mupa note 184, at424. See discussion of federal state couastal boundaries in Part III c infra. 277. 43 U.S.C. 1301-15,1331-43 (1970). 278. Tidelands in this sense applies to the foreshore or the land below the high and low water marks. Marks v. Whitney, 6 Cal. 3d,251,491 P.2J 374, 98 Cal.Kpt 790 (1971); People v. Hecher, 179 Cal. App, 2d 823,-,4 Cal. Kptr.334,341 ( 2d Dist. Ct. App. 1960); Apalachicola Land & Dev. Co. v. Mcrae, 86 Fla. 393,453,98 So.505, 525 (1923); Bay City Land Co.v. Craig, 72 Ore, 31, 33, 143 P.911,912 (1914). 279. Unites States v. Utah, 283 U.S. 64 (1931); United States,260 U.S,77 (1922) 270 U.S. 49 (1926); Brewer-Elliott Oil & Gas Co.v. United States, 260 U.S.77(1922). 280.270 U.S. 49 (1926). 281. Id. at 56. 218 NORTH CAROLINA LAW REVIEW [Vol. 53 1974] COASTAL BOUNDARIES 219 In the tidelands the state can claim title to submerged lands as far cove or basin. There are a number of other possibilities, however. The shoreward as the mean high water line.232 The issue, Therefore, is berm may be incomplete, with one or more openings through which whether the state owns beds under all tidally affected watercourses or navigation is possible, or it may simply block off direct access to a part whether title depends on the actual navigability of these water as sug- of a cove or basin, navigation behind it being possible. The opening gested by the Holt State Bank case. The Holt case, however, involved through the berm may be at the mouth of a tidal watercourse that is a fresh water lake rather than tidally-arfected waters; therefore, even navigable for distance beyond the berm. The watercourse may run if the federal navigability for title test is deemed binding on the states through a basin or estuary, the sides of which may be overflowed by generally, it remains unclear whether the Holt case is applicable to tidal tidally affected but non-navigable waters, navigability being prevented waters. either by vegetation or the shallowness of the basin or estuary beyond The only relevant federal authority on this issue appears to be either by vegitation or the shallowness of the basin or estuary beyond Knight v. Land Asssociation.283 The case involved title to the the channel of the watercourse. These situations may have different partially filled bed of Mission Creek that emptied into San Francisco legal consequences insofar as ownership of the bottom land is con- Bay. A goverment survey that had followed the high water line up cerned. Mission Creek had ben set aside by the federal government in favor To begin with, a distinction must be made between jurisdictions of a survey from headland to headland of the creek. It was not clear that equate public ownership with the ebb and flow of the tide286 and from the opinion whether the conclusiveness of the government survey, lands.287 In former group, it would seem that all of the overflowed Justice Field, in concurring opinion, stated that the established rule land within the range of the tide up to the mean high water line would was to survey from headland to headland a smaller body of water at be sovereignty land, no matter which of the above fact categories was its intersection with a larger body of water.284 This dictum suggests involved.288 More difficult conceptual problems arise in the naviga- that under federal law the states title to submerged land may depend bility-in-fact jurisdictions. In such a jurisdiction, the first example on navigability in fact. Nevertheless, the issue remains very much of (that of the berm which completely encloses the mouth of a cove or open question at this time. basin thus making it non-navigable due to lack of access) should result in title being found to be in the upland owner, even though the water may be deep enough for navigation inside the berm. Such a result was (b) Obstructed entrances to tidal basins indicated by the Florida case of Clement v. Watson.289 The case was not a title case as such, but rather an action for damages for assault The existence of a berm or other obstuction cutting off or par- and battery in which the court upheld the right of the defendant to evict tially blocking the entrance to a tidal cove or basin may create serious as a trespasser one who entered the cove inside the berm line.290 An practical problems with respect to the location of the boundary line be- tween public and private land. Turning first to berms, a berm of this 286. See Part III B(2)(a)(i) supra. type is a ridge, built up by wave action or the force of the tides and 287. See Part III B(2)(a)(ii) supra. is often located along the outer edge of vegetation. Such berms may 288. E.g., Toy v. Atlantic Gulf & Pac. Co., 176 Md. 197, 4 A.2d 757 (1939); be an inch to a foot higher than water and may act as dams, trapping fresh Linthicum v. Shipley, 140 Md. 96, 116 A. 871 (1922); Schultz v. Wilson, 44 N.J. Super, water run off or extreme high tides behind them.285 591, 141, A2d 418 App. Do 19541, cert. denied, 24 N.J. 546, 133 A.2d 395 (1957) The physical characteristics of a berm or other obstruction in rela- 289. 63 Fla. 109. 58 So. 25 (1912). See also Fisher v. Barber, 21 S.W.2d 569 (Tex. tion to the land behind it may vary in a number of ways. First, the Civ. App. 1929) (artificial channel cut in bar blocking tide waters); Guilliams v. Beaver obstruction may completely block off the entrance to a tidally affected Lake Club, 90 Ore. 13, 175 P. 437 (1918) (sand thrown up by the ocean had caused a small stream to become a lagoon.) But see Sollers v. Sollers, 77 Md. 148, 26 A. 188 282. E.g., Borax Consol. Ltd. v. City of Los Angeles, 296 U.S. 1015(1935). (1893), which involved a fact situation almost identical to Clement v. Watson. In an 283. 142 U.S. 161 (1891). action in trepass, private ownership of a tidal cove connected to the ocean by an artifi- 284. Id. at 207. cial channel was claimed. The court determined that the cove was an arm of the sea; 285. Guth, supra note 6, at 7. hence title to the soil was vested in the state, and the action for trepass failed. Mary- land is an "ebb and flow" state, which may explain the contrast between Clement and Sollers. 290. 63 Fla. at 110-111,58 So. at 26. 220 NORTH CAROLINA LAW REVIEW (Vol.53 artificial opening throught the berm by the landowner that made naviga- tion possible did not affect the ownership of the submerged land inside the berm that remained private property.201 This result is supported by the Model Coastal Mapping Act, which provides optional language codifying this position for navigability-for-title- jurisdictions.202 If there are one or more openings in the berm, making it possible to navigate inside the berm line, arguably the title of the sovereign should extend to the meam high water line of the bay or cove even though this line is considerably inland of the area that can be navi- gated.203 Conceptually, htis situation would seem to parallel that of an open beach which happens to have a sand bar or offshore islands partially blocking navigation, since it si possible to anvigate inside these partially obstructing islnads or sand bars. In navigability-in-fact juri- dictions the boundary between sovereignty lands and uplands along the beach should be the mean high water line even though one cannot navi- gate all the wy to that line.204 If the area inside the berm is not navigable in fact because the openings in it are too small or too shallow, it would seem to follow that the berm would be the boundary line, despite such opening.205 Suppose that an opening in the berm is made by a tidal water- course that is navigable inside the bern to a point above the shoreline of the cove or bay. Since it is now possible to navigate inside the berm line, the mean high water line along the shore of the basin should again be the boundary.206 In addition, public ownership will probably ex- 291. Id, at113,58 So, at27. 292. Model Coastal Mapping Act &4(1), included in the appendix to this Article (herinafter cited as Model Act). 293. Unites States v. Turner, 175 F,2d 644 (5th Cir,1949) (court held that the shallows of navigable bodies of water are owned by the state whether or not the shallows themselves are actually navigable); Alston v. Limehouse, 60 S.C. 559, 39 S.E. 188 (1901). involved a salst marsh intersected by tunnels or drainways ot the ocean. The court reasoned that if these drainways were navigable, then the party that claimed own- ership of the entire march could own only to the highwater marks of the marsh; the land below the high water mark was state-owned. If, however, the drainways were not navigable, then the claimant owned al of the marsh. 294. See United States v. Turner, 175 F2d 644 (5th Cir. 1949); State v. Hardee, 259 S.C.535,193 S.E.2d 497 (1972) (State owned to high water line on creek which separated Pawlys Island from mainland). 295. Maddox v. Trustees of Internal Improvement Fund, 37 Fla, Supp. 73 (Cir. Ct. Sarasota Coutny 1970). An oyster bar across the opening of a bayou was dry except at high tide and thus formed a barrier to navigation into the bayou. The court held that the bayou, though below mean high tide, was not sovereignty land. 296. Cf. Alston v. Limehouse, 60 S.C. 559, 39 S.E.188 (1901). 1974 COASTAL BOUDARIES 221 tend up the watercourse so far as it is navigable in fact,207 unless the jurisdiction is prepared to adopt a "headlands to headlands" rule208 for such watercourses in cases in which they are navigable for only a short distance inland from the foreshore. If the watercourse is navigable in- side the berm, but not all the way to the foreshore, the claim of the sovereign should still extend to the mean high water line, but a more persuasive argument would seem to exist for applying the "headland to headland" rule to the watercoure and drawing a closing line across its mouthe at the mean high water line along the shore.202 The problem may be further complicated in situations in which berm plus dense vegetation acts as a friction barrier trapping fresh water runoff in such a way that the water, while fresh, varies in elevation with the tide.300 In most ebb-and-flow jurisdictions,301 the boundary line is apparently located at the innermost point of tidal fluctuation reached by mean high water evern though the water itself is fresh.302 At least one jurisdiction however, does not recognize a fresh water tidally of- fected marsh as part of the sea coast, requiring at the very least a com- bination of salt and fresh water as a basis for the use of the tidal effect to establish public ownership, Whether the same rule would apply in a navigability-in-fact jurisdiciton may be more questionable. IN such cases the possibility of navigation inside the berm line might be a critical factor in determining ownership inside that lin.305 The mouth of a cove may be blocked or partially blocked by denst or impenetrable vegeattion as well as by berms. If the vegetation is really impentrable, it might well be equated with a berm that prevents navigation, in effect making the cove a separate non-navigable water- body and perhaps, therefore, subject to private ownership.306 If, on the other hand, the vegetation merely obscures entry into the cove, the 297. See discussion of navigalbility-in-fact jursdictions in Part III B(2)(a)(ii) su- plu. 298. See discussion of headland-to-headland rule note 170 supra. 299. Toledo Liberal Shooting Co. v. Erie Shooting Club,90 F.680 (6th Cir.1898) involving a navigable channel narrowing into a shallow marsh. The court held that the channel and march were subject to private ownership. 300. Guth, supra note 6, at39. 301. See discussion of ebb and flow jurisdictions in Part III B(2)(a)(i) supra. 302. See discussion of whether tidally affected fresh water is an arm of the sea in text accompanying notes 171-76 supra. 303. Morgan v. Negodich, 40 l,.Ann,246,3So.636(1887). The test of owner- ship of a in turn depended upon whether the water was a combination of salt and fresh water. 304. See part III B(2)(a)(ii) supra. 305. See text accompanying notes 293-99 supra. 306. See text accompanying notes 239-46 supra. 222 NORTH CAROLINA LAW REVIEW [Vol. 53 situation may be likened to that of the broken berms discussed above,307 in which the posibility of navigating into the cove beyond its mouth provides an argument for placing the property line at the mean high water line along the shore of the basin rather than across its mouth. Extremely difficult questions of fact may arise in such cases. one may hazard a guess, however, that the situation of complete block- age of such coves will arise relateely infrequently, since tidal water trapped therin tends to keep passageways open for its escape, normally producing the broken berm-type situation. A similar phenom- enon may be found with respect to tricutary basins on exposed coast- lines where one set of tidal forces may tend to deposti sand or other material at the mouth of an inlet, thus reducing it in size or even com- pletely closing it, while currents through the inlet tend to scour away these depostis and keep the channel open. Finally, there is the problem of artificial changes in basin regimes. Artificial improvements to the entrance of a tidal cove or basin may materially increase the tidal range, resulting in substantial quantities of what was previously upland being submerged at mean high water. Since such a change is avulsive in nature, the property line should not change, but athe location of the original line may present extremely difficult problems of proof unless adequate tidal observations are made prior to the improvement. Absent such observations, indirect and less conclusive evidence may have jto be relied upon, and the results are likely to be considerably less accurate. All of this raises very serious policy questions with respect to pro- tection of the environment. The solution of these policy problems, however, does not justify manipulation of the legal rules respecting ti- tle to property in couastal areas, especially since there are other ef- fective means of wetland protection.314 (c) Hummocks A problem also arises in overflowed areas where small hummocks or hillocks protrude above the mean high tide level. If the area is 307. See text accompanying notes 293-99 supra. 308. Patlon, Relation of the Tide to Property Boundaries, in 2 A. Shalowitz, supra notes. at 667,673. 309. See text accompanying note 342 infra. 310. Patlon, supra note 308, at 679. 311. Cases cited note 221 supra. 312. Patton, supra note 308, at 679. 313. Ausness, supra note 56, at 412-13. 314. See text accompanying notes 393-403 infra. 1974 COASTAL BOUNDARIES 223 heavily vegetated, as in marsh or mangrove areas where large drain- age fields meet the coast, the physical problem of determing exactly what land is above mean high water may become extremely diffi- cult.315 Even when that problem is solved, proof as to the character of the protruding land, whether swamp and overflowed lands316 or uplands317 may present additional problems. Such distinctions may be important because, if the land in question is covered by water at mean high tide, it will normally be classified as sovereignty land,318 held in trust by the state for its people.319 If, on the other hand, it protrudes above mean high water, it will be either swamp and overflowed lands or uplands. If the former, located other than in the original states and not already conveyed by the federal government, it will have passed to the state under the Swamp and Over- flowed Lands Act of 1850,320 but title will not necessarily have lodged in the state, since the ministerial act of conveyance to the state by the Department of the Interior is needed to perfect title in the state.321 Such conveyances were not automatic, but followed the completion of federal surveys locating and characterizing such lands.322 Thus, in areas as yet unsurveyed,323 or where the original federal surveys in meandering the shoreline omitted such lands or where located seaward of this meander line, paper title has remained in the United States, sub- ject to a requirement to patent such lands to the state to perfect the 315. Guth, supra note 6. 316. Swamp and overflowed lands are defined as "all legal subdivisions, the greater part whereof is wet and unfit for cultivation...." 43 U.S.C, #984 (1970). Legal subdivisions within the meaning of the act are 40-acre tracts. Buena Vista County v. Iowa Falls & S.C.R.R.. 112 U.S. 165 (1884). Swamp lands were distinguighed from overflowed lands in San Francisco Sav. Union v. Irwin, 28 F. 708 (C.C.I)/ Cal. 1886). ulfed per unriam, 136 U.S. 578 (1890). The court stated: "The act pf 1852 gtanys swamp and overflowed lands. Swamp lands, as distinguished from overflowed lands, may be considered such as require draingage to fit them for cultivation. Overflowed lands are those which are subject to such periodical or frequent overflows as to require levees of embankments to keep out the water, and render them suitable for cultivation." w,at 712. 317. "Uplands" as used in this context refers to all land that is above mean high water and not classified as swamp and overflowed lands. See Bureau of Land Manage- ment, U.S, Dept of the Interior, Manual of Instructions for the Survey of The Pemic Lands of The United States 98(1973). 318. See discussion of mean high water line at text accompanying notes 509-18 infra. 319. See discussion of public trust doctrine in Part II B supra. 320. 43 U.S.C. && 982-84 (1970). 321. Bureau of Land Management, U.S, Dep't of The Interior, supra note 317. at 4. 322.43 U.S.C. & 983 (1970). 323. Bureau of Land Management, U.S. Dep't of The Interior, supra note 317, at 4. 224 NORTH CAROLINA LAW REVIEW [Vol. 53 transfer ordered under the Swamp Lands Act of 1850.324 If, on the other hand, a hummock is classified as uplands-"manoriable"325 lands capable of cultivation without improvement by drainage-326 and it has never been conveyed by the United States, title will remain in the federal govenment, with no obligation to convey it to the state, since it is not swamp land and did not pass under the Swamp and Overflowed Lands Act.327 The initial obligation to classify such lands, assuming they have not already been classified, falls upon the Bureau of Land Management of the United States Department of the Interior.328 When requested by a state,329 or in its own initiative330 the Bureau may undertake such classification. In the case of relatevely small hummocks surrounded by state sovereignty land below mean high water in densely vegetated areas, the Bureau may decide that such classification is not worth the effort, and refuse to take further action.331 In the event it does decide to act, however, it should be governed by the Borax test,332 and estab- lish the boundaries of such hummocks at the mean ghigh water line as defined by the Supreme Court in tha case. The Oelschlaeger ap- proach of using the meander line as a boundary should have no applica- tion to this type of problem333 since rights in the land were not de- rived from administrative action of the Secretary as in the latter case. (3) The Ambulatory Nature of Coastal Boundaries (a) Common law doctrines In most coastal states, tidal boudaries are considered to be am- bulatory; that is, the physical location of the mean high (or low) wa- 324. E.g., Rogers Locomotive Mach. Works v. American Emigrant Co.,164 U.S. 559 (1896). 325. Attorney-General v. Chambers,43 Eng. Rep.489 (Ch. 1854). 326. The test of fitness for cultivation is whether the land is arable and adapted to raising crops requiring annual tillage. American Emigrant Co. v. Rogers Locomotive Mach. Works, 83 Iowa 613,50 N.W.52 (1891), rev'd on other grounds, 164 U.S.559 (1896). 327. 43 U.S.C. &&981-86 (1970). 328. Bureau of Land Management, U.S. Dep't of the Interior, supra note 317, 329. Bureau of Land Mangement, U.S. Dep't of the Interior, Application For Survey of Islands or Other Omitted Public Lans,43 C.F.R. &9185.5 (1970). 330. Bureau of Land Mangement, U.S. Dep't of The Interior, supra note 317. at 4. 331. See, e.g. Bureau of Land Management, U.S. Dep't of The Interior, Re- port on the Preliminary Examination of the Alleged Omitted Lands in T,46S, K. 244 Tallahassee, Florida Survey Group 158, at 6 (1974). 332. See Part III B(1)(b) supra. 333. See text accompanying notes 532-35 infra. 1974) COASTAL BOUNDARIES 225 ter line may shift because of natural or artificial changes in the loca- tion of the shorelin. Accordingly, littoral owners may gain or lose land by virtue of accretion, reliction, erosion, or avulsion. Before discussing the problem of ambulatory versus fixed bound- aries, it may be helpful to consider the meaning of a number of terms commonly used in legal discussions of this problem. Accretion or ac- creted lands consist of additions to the land resulting from the gradual deposit by water of sand, sediment or other material.334 The term ap- plies to such lands produced along bothe navigable and non-navigable water.335 Alluvion is that increase of earth on a shore or bank of a stream or sea, by the force of the water, as by a current or by waves, which is so gradual that no one can judge how much is added at each moment of time.330 The term "alluvion" is applied to the deposit itself, while accretion denotes the act,337 but the terms are grequently used synonymously.338 Reliction refers to land which formerly was covered by water, but which has become dry land by the imperceptible recession of the water. Although there is a distinction between accretion and relic- tion, one being the gradual building of the land, and the other the gradual recession of water, the terms are often used interchageabley. The term "accretion" in paritcular is often used to cover both processes, and generally the law relating to both is the same.340 Erosion is the gradual and imperceptible wearing away of land bordering on a body of water by the natural action of the elements.341 Avulsion is either the sudden and perceptible alteration of the shoreline by action of the wate, or a sudden change of the bed or course of a 334. Municipal Liquidators, Inc.v.Tench, 153 So.2d 728,730 (Fla. Dist. Ct. App. 1963; Michaelson v. Silver Beach Improvement Ass'n,342 Mass.251,253,173 N.E.2d 273,275 (1961);Jones v.Turlington,243 N.C.681,684,92 S.E.2d 75,77 (1956);1 H. I akhal, supra note 8,&69. 335. 3 American Law of Property & 15.26 (A.J. Casner ed. 1952). 336. St. Clair v. Lovington,90 U.S. (23 Wall.) 46,66(1874);Humble Oil & Ref. Co.v.Sun Oil Co.,190 f.2d 191,196 5th Cir.1951), cert. denied,342 U.S. 920 (1952). 337. Katz v. Patterson,135 Orc, 449m296 p.54 (1931). 338. Id. at 453.296 p, at55, 339. Martin v, Busch, 93 Fla, 535,574,112 So.274,287 (1927); Mcclure v. Couch. 182 Tenn. 563,572,188 S.E.2d 550,553 (1945); Note, Avulsion and Accre- tion-Emphasis Oregon, 3 Willamette:I.J. 345,346 (1965). 340. R Boyer, Florida Real Estate Trnsactions, 206-07 (1959). 341. 3 American Law of Property, supra note 170; see United States v. 461.42 Acres of Land, 222 F. Supp, 55,56 (S.D. Ohio 1963);65C.J.S. Navigable Waters & 87a (1966). 226 NORTH CAROLINA LAW REVIEW (Vol. 53 stream forming a boundary wherby it abandons its old bed for a new one.342 As a general rule, where the shoreline is gradually and imper- ceptiblly changed or shifted by accretion, reliction or erosion, the bound- ary line is extended or restricted in the same manner. The owner of the littoral property thus acquires title to all additions arising by accre- tion or reliction, and loses soil that is worn or washed away by ero- sion.313 However, any change in the shoreline that takes place sud- denly and perceptibly does not result in a change of boundary or ownership.344 Nomally a landowner may not intentionally increase his estate through accretion or reliction by artificial means.345 How- ever, the littoral owner is usually entitled to additions that result from artificial conditions created by third persons without his consent.340 The statutory proposal that accompanies this article in no way at- tempts to alter the ambulatory nature of tideland boundaries or to limit the corresponding legal doctrines with respect to accretion, reliction, erosion or avulsion.317 It rejects the notion of the fixed boundary where waterfront property is concerned. The concept of a fixed bound- ary means that the physical boundaries of littoral property would be permanently fixed as of a specific date without regard to subsequent alteration of the shoreline. Under this approach, therefore, littoral owners could no longer gain land by accretion or reliction, nor could they lose it by means of erosion. As the following discussion will show, 342. Benson v. Morrow, 61 Mo.345,352 (1875); State v. Johnson, 278 N.C. 126, 146,179 S.E.2d 371,384 (1971); J. Gould, supra note 30,&158;65 C.J.S. Navigable Waters & 86 (1966). 343. There are said to be four reasons for this principle: (1) de ininimis non curat ler; (2) he who sustains the burden of losses and of repairs imposed by the contiguity of waters ought to receive whatever benefits they may bring by accretion; (3) it is in the interest of the community that all land have an owner, and for convenience, the riparian is the chosen one; (4) it is necessary to preserve the riparioan right of access to water. Board of Trustees of Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc.,272 So.2d 209,212-14 (Fla. Dist, Ct. App. 1973). 344. Municipal Liquidators, Inc. v. Tench. 153o.2d 728,730 (Fla. Dist. Ct. App. 1963): Ford v Turner, 142 So.2d 335,342 (Fla. Dist. Ct. App. 1962); Hirt v. Entus, 37 Wash. 2d 418,224 p.2d 620 (19+50); Harper v. Holston, 119 Wash, 436,441-42,203 P. 1062,1064 (1922). 345. Kansas v. Meriwether, 182 F. 457 (8th Cir. 1910); Annot., 91 A.L.R,2d 857 (1963). See also United States v. Sunset Cove, Inc.,5 E.R.C. 1023 (1) Ore. 1973). Contact,Davis v. Morgan,228 N.C.78,44 S,E,2d 593 (1947). 346. Bonelli Cattle Co. v. Arizona,414 U.S.313 (1973): State v. Gill, 259 Ala. 177,66 So.2d 141 (1953);Michaelson v. Silver Beach Improvement Ass'n,342 Mass. 251,173 N.E.2d 273 (1961);Harrison County v. Guice,244 MIss.95,140 So. 2d 838 (1962); Annot., 134 A.I.R. 467 (1941); F. Maloney,S.Plager & F. Baldwin, supra note 7, & 126.2(b), at 389. 347. Model Act & 4(2); see Appendix 1974) COASTAL BOUNDARIES 227 the adoption of a fixed boundary in any coastal state would be extemely difficult since the federal courts have consistently upheld the concept of the ambualtory boundary in cases of littoral property and, as will be seen, this federal law is applicable in those states carved from the federal domain, while state constitutional provisions.348 and recep- tion statutes340 in the other coastal states would appear to be formidable obstacles to the fixing of such boundaries.350 (b) Federal cases As a general rule the question of title and the rights of riparian and littoral owners to accretion and similar benefits is governed by state law. In federal question cases, however, the courts have held that federal rather than state law applies.351 The landmark case of Borax Consolidated Ltd. v. City of Los Angeles,352 discussed in detail earlier. interpreted the term "ordinary high water mark" as the mean of all high waters over the 18.6-year tidal cycle and held it to be the tidal boundary where federal law applies. since the boudary was determined by the intersection of the appropriate tidal datum with the land. an ambulatory rather than a fixed boundary was implied. Of equal importance, however, the Brax case set forth the rule that federal law would apply to tidal boundaries in cases involving a federal question. The Court declared: The question as to the extent of this federal grant, that is, as to the limit of the land conveyed, or the boundary between upland and the tideland, is necessarily a federal question. It is a question which concerns the validity and effect of an act done by the United States;it involves the ascertainment of the essential basis of a right asserted under federal law.354 348. Most states have a provision prohibiting the taking of private property without compensation within their own constitutions. E.g. N.Y. Const. art. 1.&7. This pro- vision has been interpreted by one New York cout to apply to riparian rights, including the right of access to a stream. Marine Air Ways v. State, 201 MIsc.349,104 N.Y.S.2d 1964 349. The Common law has been adopted by all states except Louisiana. 13 Am. Jun.2d Dommon Law & 11 (1964). 350. Fixed boundaries which adversely affect the riparian owner are of doubtful constitutionality; see Part II 11(2)(b)(II) suora, However, Washington does not recog- nize the loss by ersion of land abutting lakes, bays or water where granted prior to Washington statehood. 351. Borax Consol, L.t.d. v. City of Los Angeles, 296 U.S. 10 (1935);United States v. Holt State Bank,270 U.S. 49(1926). See Shalowitz. Tidal Boundaries-The Borax Case Revisisted,29 Surveying & Mapping 501 (Sept. 1969), 352. 296 U.S. 10(1935). 353. See Part III B(2)(b) supra. 354. 296 U.S. at22. 228 NORTH CAROLINA LAW REVIEW [Vol. 53 This principle was subsequently applied to accretion in the Washington and Hughes cases. United States v. Washington355 concerned the ownership of accre. tions to littoral land owned by the federal government along the coast of Washington. The primary issue in the case was whether state or gederal law applied. It was argued that federal law followed the common-las position and recognized the ambulatory nature of tidal boundaries. Under state law, however, the boundary was fixed as of the date of statehood, and subsequent accretions were owned by the state rather than the littoral owner. The federal court of appeals, reversing the trial court, held that the Borax case was controlling and declared that accordingly, federal law would prevail over state law. The court stated that while Borax had not been directly concerned with accretion, the principle of that case is equally applicable because accretion is an attribute of title and "the determination of the attributes of an underlying federal title, quite as much as the determination of the boundaries of the land reserved or acquired under such a title, 'involves the assertainment of the essen- tial basis of a right asserted under federal law.'"356 The rule in the Washington case was upheld several years later by the Supreme Court in Hughes v. Washington.357 The issue involved whether the plaintiff, successor in title to an original federal grantee, was entitled to the gradual and imperceptible accretions added to her land both before and after the addmission of Washington to the Union. The State trial court, relying upon the Borax and Washington decisions, held that federal law applied and confirmed title to the accreted lands in the plaintiff. The State supreme court, however, reversed, declaring that state rather than federal law governed in this instance. Since under the law of Washington the boundary was fixed as of the date of state- hood, the court held that ass accretions since that time belonged to the state rather than the littoral owner. The case was then brought before the United States Supreme Court. The issue before the Court was whether or not a state could alter the ambulatory boundary between its tideland and uplands pat- ented by the federal government prior to statehood by declaring that boundary to be permanently fixed at the line of ordinary high tide on 355. 294 F.2d 830 (9th Cir.1961),cert.denied,369 U.S.817(1962). 356. Id. at 832. 357. 389 U.S. 290 (1967). 1974] COASTAL BOUNDARIES 229 the date of admission to statehood, hereby depriving the uplands owner of natural accretions occurring since that date. The Supreme Court held that this question was controlled by federal law, not state law, and therefore, that the littoral owner was entitled to the accretions. The Court relied on the Borax case to reach its decision: "While the issue appears never to have been squarely presented to this Court be- fore, we think the path to decision is indicated by our holding in Borax, Ltd. v. Los Angeles... No subsequent case in this Court has cast doubt on the principle announced in Borax."358 The Court reached its decision in spite of the fact that the Borax case did not deal with accretions. The Court nevertheless declared: While this is true, the case did involve the question as to what rights were conveyed by the federal grant and decided that the extent of ownership under the federal grant is governed by federal law. This is as true whether doubt as to any boundary is based on a broad question as to the general definition of the shoreline or on a particularized problem relating to the ownership of accretion.359 The right asserted by Mrs. Hughes, whose predecessor in title had acquired the upland before stathood, was a right asserted under federal law. Under federal law accretion belonged to the upland owner. The main policy behind the federal common law was to protect the ripariate owner's access to the water.360 Therefore, the accretion to Mrs. Hughes property belonged to her, and not to the state. In a concurring opinion. Justice Stewart recognized Washington's fixed boundary rule as a change in the state's water law. He argued that Mrs. Hughes' right to accretion should be based on the principle that the application of state law was a taking of property without compen- sation.361 Thus, both the Washington and the Hughes cases have recognized the ambulatory boundary as a part of federal law and have held that this principle will prevail over a contrary state rule. The exact scope of these decisions, however, is not entirely clear. While Hughes in- volved a federal patent made prior to statehood, both Washington and Borax involved patents made after statehood. It is therefore likely that federal law will govern wherever a federal patent is involved. This would virtually destroy the efficacy of any state law that attempted to establish a fixed boundary as far as those states carved out of the 358. Id. at 291-92. 359. Id. at 292. 360. Id. at 293. 361. Id. at 294-98. 230 NORTH CAROLINA LAW REVIEW [Vol. 53 federal domain are concerned,362 including well over half of the coast- line of the United States. Washingtion and Hughes have changed the law of the State of Washington since that State had necessarily to abandon its fixed bound- ary position.363 Louisiana may also have to reconsider its legal position in the light of the Hughes decision. Louisiana maintains that the owner of property abutting the Gulf of Mexico has no right to accretion formed by the see.364 Both Washington365 and Florida366 have con- sidered the reasoning of Hughes--that the riparian owner must have access to the water--to decide cases involving accretion.367 The extent to which the title to accretion is a federal question was decided in Hughes only with respect to a grant made prior to state- hood.368 However, the court's language in Hughes369 would indicate that whenever title has been derived from the federal government, federal law applies. A very recent decision by the Supreme Court, Bonelli Cattle Co. v. Arizona370 takes the position that when states are successors in title to the federal government they are subject to federal common law with respect to boundaries of land abutting on all navigable waters. Bonelli involved a dispute between the upland owner and the State of Arizona, as owner of the bed of the Colorado River, over title to land exposed 362. Note, Florida's Sovereignty Submerged Lands: What Are They, Who Owns Them and Where is the Boundary?,1 Fla. St. L. Rev. 596,630(1973). 363. E.g. Harris v. Hylebos Indus. Inc. 81 Wash. 2d 770, 505 P.2d 457 (1973); Vavrek v. Parks, 6 Wash. App. 684,495 P.2d 1051(1972);Wilson v. Howard, 5 Wash. App. 169,486 P.2d 1172(1971). Washington, however,does not recognize loss of title by erosion of land abutting lakes, bays or waters treated as lakes or bays if the land was conveyed by federal grant prior to statehood. This rule relies on the theory that the state may dispose of its land beneath navigable waters if it desires. 364. See Ker & Co. v. Conden, 223 U.S.268(1911);State v. Bayou Johnson Oyster Co., 130 La. 604,58 So. 405(1912);Zeller v Southern Yacht Club, 34 La. Ann. 837 (1882); Note, Allusion, Islands, and Sand Bars, 47 Tul. L. Rev. 367,374 (1973). and the riparian owners. Id. at 374 n42. 365. Hudson House, Inc. v. Rozman. 82 Wash. 2d 178,509 P.2d(1973). The court found necessary the equitable appoortionment of a large, unusually-shaped accretion to avoid cutting off access to the water for an upland owner. 366. Board of Trustees of Internal Improvement Trust Fund v. Mediera Beach Nom- inee, Inc.,272 So. 2d 209(Fla. Dist. Ct. App. 1973):Florida Nat'l Properties, Inc. v. Trustees of Internal Improvement Trust Fund, Case No. 74-5-G (Fla. Cir. Ct. Highlands County, May 3,1974) 367. See also United States v. 1,629.G Acres of Land, 335 F. Supp. 255,269 (D. Del. 1971)(Hughes cited as favoring protection of access to water by riparian owner). 368. 389 U.S. at 291. 369. The location of the boundary was too great a national concern to be subject to state law. Id. at 293. 370. 414 U.S. 313(1973). 1974] COASTAL COUNDARIES 231 by rechanneling the river. The Arizona Supreme Court condidered the exposed land to be the result of avulsion since a sudden change in the character of the land was involved, and held that title to the exposed land remained in the State.371 The Supreme Court of the United States reversed. Although urged to apply the Hughes analysis--that a federal question was involved because the upland owner traced his title through a federal grant--the Court rejected the argument372 in favor of a broader rationale. A federal question was involved, the Court reasoned, because the State acquired its title to the river bed under the equal-footing doctrine.373 Further, the State's title was a limited one in that it held the beds of navigable waters for the purpose of public navigation or "related public interests."374 In cases in which the chan- neting project enhanced the State's interest in the navigability of the river, the Court decided that as a matter of public policy the State should not be permitted to acquire the exposed land in what would amount to "a windfall, since unnecessary to the State's purpose in holding title to the beds of the navigable streams withing its bor- ders."375 To avoid this windfall, which would have resulted from classifying the drying up of the bottomlands as avulsion, the Court in effect redefined avulsion and accretion, no longer emphasizing the speed with which the change was brought about, but rather finding accretion because of the lack of "navigational or related public in- terests"376 Lack of such interests, said the Court, call for applica- tion of the "accretion theory."377 which gave the land to Bonelli, the 371. Arizona v. Bonelli Cattle Co., 107 Ariz. 465.489 P.2d 699(1971). 372. 414 U.S. at 328 n. 11. 373. The states which entered the Union after its formation were admitted with the same rights as the original states within their respective borders. Mumford v. Wardwell, 73 U.S. to Walter 423(1867). Title to lands under navigable waters passed to the new States under the equal footing doctrine. Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212 374. 414 U.S. at 323. 375. Id. at 328. 376. Id. at 329. 377. The policies behind the doctrine of accretion are, however, fully ap- licable. Accretion theory guarantees the riparian character of land by auto- matically granting to a riparian owner title to lands which form between his holdings and the river and thus threaten to destroy that valuable feature of his property. The riparian owner is at the mercy, not only of the natural forces which create such intervening lands, but also, because of the navigational servi- tude, of governmental forces which may similarly affect the riparian quality of his estate. Accordingly, where land cast up in the Federal Governments exercise of the servitude is not related to furthering the navigational or related public interests, the accretion doctrine should provide a disposition of the land as between the riparian owner and the state. Id. at 327. 232 NORTH CAROLINA LAW REVIEW [Vol. 53 adjoining landowner.378 Since the tidelands were among the lands granted to those states that joined on an equal footing, along with land underlying navigable rivers, the principle of Bonelli should be equally applicable to the tidelands.379 The mean high water line is the federal standard for littoral boundaries,380 and the federal common law recognizes the ambulatory boundary.381 This does not solve, however, all the problems remaining to be faced by the state courts. Two similar cases, one in Florida and one in California, illustrate one of these problems and how at least two courts are approaching it. (c) State approaches to ambulatory shorelines In People v. William Kent Estate Co.,382 a California appeals court decided a suit to quiet title brought by the lessee of a sandspit. The sandspit was bounded on one side by the Pacific Ocean, the tideland being owned by the State. The court found that the United States Coast and Geodetic Survey could establish the mean high tide line. The real problem was that the beach itself shifted perhaps as much as eighty feet between the summer and winter seasons.383 Kent commented authoritatively on the determination and mean- ing of the mean high water line, but did not solve the problem. The seasonal fluctuation could hardly be "gradual and imperceptible" so as to classify the change in the beach shoreline as accretion or reliction, declared the court.384 Therefore the issue ws retried in an attempt to establish a more definite or certain boundary. Since the proceeding was eventually dismissed on appeal as moot, the attempt was unsuccess- ful.385 378. Bonelli solved one problem raised by Hughes. There are no longer two classes of upland owner, those deriving title from federal government and those deriving title from other sources. However, Bonelli also sharply focuses another inconsistency. Those states which were admitted to the Union on as "equal footing" with the original thirteen states are under federal common law as to water property boundaries. The thir- teen original states and Texas may presumably apply state law. Id. at 336 (Stewart, I., dissenting). 379. The Court relied on the decisions in Shively v. Bowlby.152 U.S.1(1894); Weber v. Board of Harbor Comm'rs.85(18 Wall.)57(1873);Pollard's Lessee v. Hagan,44 U.S. (3 How.)212(1845), all involving tidelands. 414 U.S. at 318. 380. See Part III B(2)(a)(iii)supra. 381. See text accompanying notes 352-64 supra. 382. 242 Cal. App. 2d 156,51 Cal. Rpir. 215 (1st Dist. Cl. App. 1966). 383. ld. The actual amount of movement of the land was in dispute. 384. ld. at .51 Cal. Rpir. at 218-19. On October 10,1973, the court of appeal, in an unpublished opinion, dismissed the state's appeal as most after defendant removed the fence. l Civil No. 31405 (1st Dist. Ct. App.,Oct. 10,1973). 385. Petition for rebearing was denied on November 9,1973. Petitions for hearing 1974] COASTAL BOUNDARIES 233 A similar Florida case, Trustees of Internal Improvement Fund v. Ocean Hotels, Inc.386 was an action to remove a seawall erected by the lessee hotel owner to prevent a part of its hotel from being under- mined by the sea. This case also presented th problem of determining a boundary on a beach "which, though the natural processes of erosion and accretion, undergoes a predictable, seasonal loss and replenish- ment of approximately 90 feet of beach sand."387 The trial court ap- proached the problem directly. It summarily dismissed the fluctuating boundary concept as being unacceptable as a property law standard.388 The possible solutions, as the court saw them, were to accept either the seaward mean high water line (summer line), the landward mean high water line (winter line), or the mean of the two. The mean of the summer and winter line was rejected as too costly to determine and an invasion of the public trust concept for at least part of the year. The summer line would likewise be violative of the public trust.389 Conse- quently, the trial court accepted the winter line as the boundary. This solution was found to satisfy the State's interest in allowing th public the use of the beach. Ocean Hotels is currently on appeal.391 In spite of the Kent and Ocean Hotels decisions, the use of a fluc- tuating boundary in such fact situations seems justified. The mean high water line is assertainable. There is usually no great difficulty in determining the location of the line with respect ot the shore at any given time. In light of the Hughes and Bonelli decisions, the ambula- tory shoreline is a more acceptable property boundary than the winter line used by the Ocean Hotels court. Hughes relied on the supremacy of federal law over state law when a federal question is involved. The "winter line" approach is not a part of the federal common law; more- over, federal law clearly rejects such an argument as that of the trial court in Ocean Hotels, that water boundaries must be fixed to be cer- tain. Further, the "winter line" clearly deprives the upland owner of title to the summer beach which he would hold under common law accretion principles. This may be an unconstitutional taking of pro- perty without compensation, as Justice Stewart argued in Hughes. His in the California Supreme Court were filed by the state and numerous amici curiac. There petitions were denied on December 19,1973. 386. 40 Fla. Supp. 26 (Palm Beach County Ct. 1974). 387. Id. at 27 388. Id. at 32. 389. Id. at 32-33. 390. Id. at 33. 391. Appeal docketed. No. 74-255, Fla. 4th Dist. Ct. App. Feb.27,1974. 234 NORTH CAROLINA LAW REVIEW [Vol. 53 "taking" argument was specifically recognized by the majority in Bonelli as defeating the state's claim to the disputed land.392 Thus the "winter line" may be unconstitutional on the ground that federal law is supreme when a federal question is involved or on the ground that the use of that line is a taking of property without compensation. There are other legal means available to protect public rights to beaches without doing violence to the ambulatory boundary concept. Even where title has been confirmed in the upland owner, the public may have acquired a prescriptive casement in the dry sand area393 or a right to use the dry sand area by "custom."394 Construction on the disputed area can be limited by set-back requirements established un- der the police power.395 These requirements are much more likely to be upheld, as are other zoning laws, as not being a taking396 than the fixed winter line approach of the trial court in Ocean Hotels. An additional judicial tool for protecting the rights of the public in the area of seasonal ambulation between summer and winter mean high water lines is suggested by the recent holding of Wilbour v. Gallagher.397 That case held that the owner of lands periodically cov- ered by navigable waters of a fresh water lake may not interfere with public navigational rights by artificially filling such lands or erecting permanent structures thereon during a period of low water. In Wilbour the waters of Lake Chelan were periodically raised and low- ered artificially in connection with power production. Defendants, whose lands were partially submerged annually for three monts, filled the submerged parts of their property so that it could be used through- out the year. The Washington Supreme Court, holding that their fills constituted an obstruction to navigation, ordered them abated.398 The 392. 414 U.S. at 331. 393. See City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73 (Fla. 1974). See also Comment Easements: Judicial and Legislative Protection ot the Public's Right to Florida's Beaches. 25 U. Fla. I., Rev.586(1973). 394. See Hay v Bruno. 344 F. Supp. 286(D. Orc. 1972). 395. See, e.g., Fla. Stat. 161.052-053(1972). 396. See D. Hagman, Urban Planning 116-19(1971);Van Alstyne, Taking or Damaging by Police Power: The Search for Inverse Condemnation Criteria. 44 S. Cal. L. Rev. 1,13.48(1971) But see In re Opinon of Justices to House of Representatives, __Mass.__,313 N.E.2d 561(1974). 397. 77 Wash.2d 306,462 P.2d 232(1969). 398. In its decision, the court took the position that the same test is applicable to artificially raised and lowered navigable waters as is followed in cases involving natu- rally fluctuating water levels. It went on to state: [Where the level of a navigable body of water fluctuates due to natural causes so that a riparian owner's property is submerged part of the year, the public has the right to use all the waters of the navigable lake or stream whether it be at the high water line, the low water line, or in between.... When the 1974] COASTAL BOUNDARIES 235 rationale of the case seems equally applicable to lands periodically covered by the seasonal ambulation of tidally affected waters. In addition to the possible state recognition and enforcement of a navigational easement of the Wilbour type, recent federal cases indi- cate a strong possibility of federal recognition of a similar federal ease- ment. In United States v. Sunset Cove, Inc.,399 the Federal District Court for the District of Oregon seemingly extended the jurisdiction of the Corps of Engineers to include dry sand areas within the limits of migration of a meandering navigable coastal river. By analogy this principle can arguably be extended to the ambulation of a sand beach between its summer and winter limits, thus giving the Corps authority to require permits under the Rivers and Harbors Act.400 Federal regu- latory power has been also extended under the Federal Water Pollution Control Act401 in United States v. Holland,402 which involved a dredge and fill operation on land "periodically inundated [by the tides but] above the mean high water line...."403 The land held to be under federal jurisdiction was mangrove wetland, but the federal pollution control authority could well be extended to the beaches as far as the waves wash to restrain construction or development on an ambulatory shoreline. Another problem is artificial accretion. As a general proposition, the law with respect to accretion or reliction applies whether they result from natural or artificial causes.404 This is not to say, however, that an artificial accretion caused by the littoral owner will be vested in him.405 But, if the artificial accretion is not caused by him, in general land is submerged, the owner has only a qualified fee subject to the right of the public to use the water over the lands consistent with navigational rights, primary and corollary.... .... Thus, in the situation of a naturally varying water level, the respective rights of the public and of the owners of the periodacally submerged lands are debend- ).ent upon the level of the water. As the level rises, the rights of the public to use the water increase since the area of water increases;correspondingly, the rights of the landowners decrease since they cannot use their proberty in such a manner as to interfere with the expanded public rights. Id. at 314, 462 P. 2d at 238 399. 5 E.R.C. 1023 (D.Ore.1973). This case is currently on appeal to the Ninth Circuit Court of Appeals. 400. 33 U.S.C. 403(1970) 401. Id. 1251-1376(Supp. H,1972). 402. 343 F. Supp. 665(M.D. Fla.1974). 403. Id. at 675. 404. 56 Am. Jur. Waters 486(1947). 405. I.g., McDowell v. Trustees of Internal Improvement Fund. 90 So. 2d 715 (Fla. 1956): Davis v. Morgan, 288 N.C. 78,44 S.E.2d 593(1947). 236 NORTH CAROLINA LAW REVIEW [Vol. 53 it will be awarded to him.406 Suppose, however, the accretion results from a legislatively au- thorized beach nourishment profect. Arguably such projects may be legally justified under the police and general welfare powers to protect endangered lands.407 Does this fact provide a valid legal basis for fix- ing the boundary on the landward side of the accreted land? Under such legislation in Florida,408 once an erosion control line is established in connection with a beach nourishment project, title to all lands sea- ward of the line vests in the State. The common law of accretion no longer applies, although the person who owned to the mean high water mark before the line was established retains his riparian right of ac- cess.409 and, if the agency responsible for maintaining the restored beach allows it to recede to the landward side of the erosion control line, the common law of erosion takes effect as to such land.410 The line can be established only where severe beach erosion has occurred.) The constitutionality of the legislation with respect to the title to the accreted land has been questioned,411 but no square holding on the is- sue has yet been forthcoming in Florida. However, a Massachusetts beach nourishment project, which included no provision for access by riparian farmers over the accreted land was held not to vest title in the state despite the public benefit that resulted.412 Perhaps an argument in favor of the Florida-type legislation can be constructed from the lan- guage of Justice Marshall in the Bonelli case concerning protection of "navigational or related public interests,"413 which, the Court con- tinued, "should not be narrowly construed because it is denominated 406. See Michaelson v. Silver Beach Improvement Ass'n. 342 Mass.251,173 N.E.2d 273(1961). 407. CI. Colberg. Inc. v. State ex rel. Dep't of Pub. Works, 67 Cal. 2d 408,432 P.2J 62 Cal. Rptr. 401 (1967): Candlestick Properties. Inc. v. San Francisco Bay Conservation & Dev. Comm'n. II Cal. App. 3d 557, 89 Cal. Rptr. 897(1st Dist. Ct. App. 1970);Morris County Land Improvement Co. v. Parsippany-Troy Hills Township, 40 N.J. 539,193 A.2d 232 (1963). 408. Fla. Stat. 161.011-.211,161.25-.45(1972). 409. Id. 161.201 410. Id 161.211(2)-(3). 411. Trustees of Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc., 36 Fla. Supp. 26(Cir. Ct. Pinellas County 1971), aff'd. 272 So.2d 209(Fla. Dis. Ct. App. 1973). See also F. Maloney, s. Plager & F. Baldwin, supra note 7, 126.7, raising similar doubts but suggesting that if the legislation preserves the riparian right of access of the upland owner, this might tip the balance in favor of the legislation. The Florida statute contains such a provision. Fla. Stat. 161.201(1972). 412. Michaelson v. Silver Beach Improvement Ass'n, 342 Mass. 251,173 N.E.2d 273(1961). 413. 414 U.S. at 329. 1974] COASTAL BOUNDARIES 237 a navigational purpose.414 Arguably one such public purpose could be the prevention of beach erosion and the restoration of public beaches on land formerly beneath navigable waters.415 A more clearly acceptable approach ot the beach erosion problem, however, might be to allow the law of accretion to apply and the littoral owner to gain title to the accreted beach lands, but legislatively to impose a public easement of access on the accreted lands along with imposing building restrictions on such land to guarantee that easement on the publicly fi- nanced additions. In summary, the federal common law of water boundaries is rapidly supplanting state water boundary law governing much of the nation's coastline. This federal common law uses the ambulatory boundary, and the line of this ambulatory boundary is the mean high water line. A change at this time would raise serious constitutional questions because it arguably constitutes a drprivation of the land- owner's accreted property without just compensation.416 For these reasons the proposed model legislation retains the common law of the states regarding the legal effects of accretion., reliction, erosion and Thins common law, at least in those states subject to the federal common law, will necessarily include the ambulatory coastal boundary concept. C. Federal-State Conflicts in the Marginal Sea Although this article is primarily concerned with property rights along the shoreline, a brieg examination of jurisdictional and property rights in the sea bed itself is appropriate. The discussion, however, will not deal with the international aspects of exploitation of sea bed resources, but will concentrate on the current dispute between the states and the federal government over the extent of their respective interests in offshore areas. International law recognizes three categories of navigable waters: (1)the high seas, which are outside the jurisdiction of any particular nation:418 (2)the marginal or territorial sea, which is a band of water 414. Id. at 323 n.15 415. But see Board of Trustees of Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc.,272 So. 2d 209 (Fla. Dist. Ct. App. 1973). 416. This argument is spelled out in Trustees of Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc. 36 Fla. Supp. 26,34-35(Cir. Ct. Pinellas County 272 So. 2d 209 (Fla. Dist. Ct. App. 1973). 417. Model Act 4(2). 418. Cross, The Maritime Boundaries of the States,64 Mich. 4. Rev.639(1966). 238 NORTH CAROLINA LAW REVIEW [Vol. 53 along the coast over which the nation exercises exclusive jurisdiction419 except for a right of innocent passage afforded foreign vessels;420 and (3)inland waters, which are located between the marginal sea and mean low water line.421 In the United States, inland waters are generally state owned, but both federal and state governments have an interest in the marginal sea. Prior to World War II the United States Supreme Court had uni- formly upheld state ownership of tidelands,422 and it was generally be- lieved that the same rule applied to the submerged lands of the marginal sea.423 In the 1930's however, the federal government began to assert a claim to submerged lands seaward of the mean low water line,424 and the dispute was finally resolved in a series of Supreme Court cases known as the Tidelands Decisions.425 In the first of these cases, United States v. California,426 the Court held that California was not the owner of the marginal sea along its coast and that the federal government rather than the states had paramount rights417 and powers over such waters. Moreover, according to the Court, this power in- cluded full dominion over the resources under the seabed, including 419. 1 A. Shalowitz, supra noic note 5, at 239. 420. For a discussion of the problems of national control over territorial waters and the right of innocent passage see M. McDougal & W. Burke, The Public Order of The Oceans 196-282 (1962). See also The Casfu Channel Case, [1949] I.C.J. 8;C. Fenwick, International Law 468-69(4th ed. 1965). 421. See generally 1 A Shalowitz supra note 5, at 31-65;Gross, supra note 418, at 646-69. 422. E.g. Borax Consol. Ltd. v. City of Los Angeles,296 U.S. 10,15(1935); Ap- pleby v. City of New York, 271 U.S. 364,381(1926);Port of Seattle v. Oregon & W.R.R.,255 U.S. 56,63(1921);Louisiana v. Mississippi, 202 U.S. 1,8 (1906);Hardin v. Shedd, 190 U.S. 508,519(1903);Shively v. Bowlby, 152 U.S. 1,14-18(1894); Knight v. United States Lands Ass'n, 142 U.S. 161,183(1891): McCready v. Virginia, 94 U.S. 391,394(1876):Weber v. Board of Harbor Comm'rs,85 U.S.(18 Wall.)57, 66 (1873);Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212,229(1845);Martin v. Lessee of Waddell, 41 U.S. (16 Pet.)366,410(1842). 423. Hanna, The Submerged Lands Cases,3 Baylor L. Rev. 201,209(1951);Met- calfe, The Tidelands Controversy: A Study in Development of a Political-Legal Prob- lem. 4 Syracuse 1. Rev. 39,41(1952). 424. S.J. Res. 208,75th Cong. 1st Sess.(1937); E. Bartley, The Tidelands Oil L. Rev. 510,511-12(1960); see Comment;Conflicting State and Federal Claims of Ti- tle in Lands of the Continental Shelf 56 Yale. I.J. 356(1947). 425. United States v. Texas, 339 U.S. 707 (1950);United States v. Louisana, 339 U.S. 699 (1950);United States v. California, 332 U.S. 19(1947). 426. 332 U.S. 19(1947).For an analysis of the California case see E. Bartley, supra note 434, at 59-78;1 A Shalowitz supra note 5, at 3-10;Hanna, The Submerged Land Cases, 3 Stan. L. Rev. 193,196-209(1951);Comment, United States v. Califor- nia: Paramount Rights fo the Federal Government in Submerged Coastal Lands, 26 Texas L. Rev. 304(1948). 427. See E. Bartley, supra note 424, at 247-73. 1974] COASTAL BOUNDARIES 239 oil.428 The Court reasoned that the constitutional responsibilities of the federal government over foreign affairs requires that its paramount powers in the marginal sea be recognized.429 The claims of Louisi- ana430 and Texas431 to adjacent submerged lands in the Gulf of Mexico were rejected for similar reasons. As a result of pressure from the affected coastal states,432 Con- gress in 1953 passed the Submerged Lands Act433 that relinquished to certain states the federal government's interest in all submerged lands in the marginal sea within state boundaries.434 Under the provisions of the statute, state boundaries were to be those existing at the time of admission into the union.435 However,state boundaries approved by Congress prior to the Act were also confirmed. Moreover, any state was allowed to extend its seaward boundary to three miles.436 The Outer Contintental Shelf Lands Act437 provided for the administration of submerged lands, seaward of state boundaries, that remained under the control of the federal government.438 The constitutionality of the Submerged Lands Act was upheld in 1954,439 but the Supreme Court did not interpret the legislation until it decided United States v. Louisiana 440 in 1960. In this case the fed- eral government claimed all submerged lands in the Gulf of Mexico 428. 332 U.S. at 38-39. 429. Hanna, supra note 426, at 204. The Court suggested that jurisdiction over the marginal sea had been created solely as an aspect of federal sovereignty and reflected an assertion of national rather that local interests. Since this extension had taken place after the of the Union, the original states derived no rights in the marginal sea as an attribute of their sovereignty. 332 U.S. at 32-35. The equal footing doctrine required that subsequently admitted states relinquish any claims to the marginal sea based on their pre-admission boundaries. Gross, supra note 418,at 640-41. 430. United States v. Louisiana, 339 U.S.699(1950); E. Bartley, supra note 424, at 195-212. 431. United States v. Texas, 339 U.S.707(1950);Hanna, supra note 426,at 209-18. 432. Metcalfe, supra note 423,at 64-89. 433. 43 U.S.C. 1301-15(1970). 434. See generally 1 A. Shalowitz, supra note 5, at 115-80. 435. 43 U.S.C. 1312(1970). 436. Id.;Gross, supra note 418,at 644. 437. 43 U.S.C. 1331-43(1970);1 A Shalowitz, supra note 5. at 181-99; Chroistopher, Outer Contintental Shelf Lands Act: Key to a New Frontier. 6 Stan. L. Key 23(1953). 438. The claims of federal government vis-a-vis other nations with respect to development of the resources of the outer continental shelf are outside the scope of this article. See 1 A. Shaolwitz, supra note 5, at 371-77. 439. Alabama v. Texas, 347 U.S. 272(1954). The Court stated that "The power of Congress to dispose of any kind of property belonging to the United States is vested in Congress without limitation" Id. 440. 363 U.S. 1(1960). See 1 A. Shalowitz, supra note 5, at 140-43. 240 NORTH CAROLINA LAW REVIEW [Vol. 53 more than three geographical miles441 from the coast of the respective Gulf Coast states. The states claimed coastal boundaries of three marine leagues or more. The Court declared that a state's claim must be based on "'its constitution or laws prior to or at the time such State became a member of the Union'"442 and that such a claim must also be recognized by Congress in admitting the state to the Union. Thus the Court declined to rule that preadmission boundaries, by themselves, met the requirements of the Submerged Lands Act.443 Accordingly, the Court held that the coastal boundaries of Louisiana, Alabama and Mississippi extended only three geographical miles beyond the mean Texas445 and Florida446 to coastal boundaries of three marine leagues in the Gulf of Mexico. While the major coastal boundary questions have apparently been settled with respect to the Pacific and Gulf coastal states, the states along the Atlantic coast recently have laid claim to vast areas of the scabed on the basis of their colonial charters.447 The coastal states have asserted that the three mile limit provisions of the Submerged Land Act were not applicable to them. As successors in title to Eng- land or its grantees, they have exercised dominion and control over the marginal sea along their coastlines since the colonial period and never surrendered this authority to the federal government. The federal 441. One English statue or land mile equals about 0.87 marine, nautical or geo- graphical mile. The "three-mile limit" of international law refers to three marine miles, or approximately 3.45 land miles. 363 U.S. at 17 n 15. A marine league is equal to three geographical miles. 2 A Shalowitz, supra note 5 at 580. 442. 363 U.S. at 29, quoting 43 U.S.C. @ 1312 (1970). 443. Henri, The Atlantic States' to Offshore Oil Rights: United State v. Maine, 2 Environ, Affairs 827,831 (1972). 444. The act of admission with respect to Louisiana had described the boundaries of the state as "including all islands within three leagues of the coast." 2 Stat. 702 (1812). Similar clauses in their respective acts of admission described the boundaries of Alabama and Mississippi as "including all islands within six leagues of shore." 3 Stat. 490 (1819) (Alabama); 3 Stat. 348 (1817) (Mississippi). The states had argued that this language implied that all waters between such islands and the mainland were included within their coastal boundaries. The Court, however, held that the states were only entiled to a three-mile belt around the mainland and the islands. 363 U. S. at 66- 83; Gross, supra noic 418, at 644. 445. 363 U.S. at 36-65: 1 A. Shalowitz, supra note 5, at 136-40. The court deter- mined that the annexation resolution of 1845, 5 Stat. 797 (1845), had recognized a mar- itime boundary of three leagues for Texas. See Gross, supra note 418, at 642 n 21: Henri, supra note 443, at 836 n 29. 446. United States v. Florida 363 U.S. 121 (1960). The Court found that upon Florida's readmission to the Union after the Civil War, 15 Stat 73 (1868), Congress had approved a new state constitution which included a coastal boundary of three marine leagues. 447. See generally Henri, supra note 443, Flaherty, supra note 4 1974] COASTAL BOUNDARIES 241 government, on the other hand. has maintained that the 1947 Califor- nia decision controls. At stake are oil and natural gas deposits esti- mated to be as large as those in the Gulf.448 In 1969 the federal govern- ment invoked the original jurisdiction of the Supreme Court to resolve the dispute.449 The case has not yet been decided although a special master, appointed by the Court, recommended in August 1974 that the claims of the states be disallowed. The Submerged Lands Act provides that the three mile limit be- gins at the "coastline," defined as "the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.....''450 Accordingly, the proposals discussed subsequently in the article are rel- evant to federal-state coastal boundaries, as well as those of private landowners.451 IV. A LEGISLATIVE APPROACH TO SHORELINE BOUNDARIES A. A Proposed Model Act Two years ago, at the request of the Florida Department of Natural Resources, the authors commenced work on proposed legisla- ture to authorize a permanent program of coastal mapping in that State.452 With the assistance of personnel from NOAA and NOS, 453 a bill was produced which was subsequently enacted into law as the "Florida Coastal Mapping Act of 1974.454 From the very beginning, 448. One commentator estimates that the Atlantic seabed contains 5.5 billion bar- rels of oil, 37 gallon cubic feet of gas, and 1.1 billion barrels of natural gas liquids. Hen supra note 443, at 828. 449. United States v. Maine. 395 U.S. 955 (1969). 450. 43 U. S. C. $ (13011c) (1970). 451. There are many complex problems associated with demarcation of coastal boundaries under the Submerged Lands Act as well as under international law, particu- larly in the case of bays, rivers and inlets. See generally United States v. California, 381 U.S. 139 (1965). Since these problems involve a federal question, they were not treated in the Model Act, which operates only at the state level, Shalowitz, Boundary Problems Raised by the Submerged Lands Act, 54 Colum. L. Rev. 1021 (1954). 452. The history of the present NOS-Florida coastal mapping program is discussed in text accompanying notes 584-85 infra. 453. The authors wish to express their appreciation to Hugh Dolan, Chairman, Board of Appeals, Department of Commerce, Commander Wesley Hull, Chief, Coastal Mapping Division, NOS: Cal Thurlow, Chief, Tides Division, NOS: Carl Johnson, Gen- eral Counsel's Office, NOAA: Captain Jack Guth, Coastal Mapping Coordinator, Department of Natural Resources, Colonel Jersey Kelly, Administrative Assist- ant Florida Department of Natural Resources: and Fred Waldinger, Assistant to Coastal Mapping Coordinator, Florida Department of Natural Resources, for their comments and suggestions regarding the content of the Model Act. 454. (h 74-56,(1974) Fla. Laws 34. 0 242 NORTH CAROLINA LAW REVIEW {VOL. 53 However, it was felt that the proposed act might serve as a model for use in other coastal states.455 The proposed statue contains three major elements. First, it provides a precise definition of the "mean high water line" and declares it to be the boundary between privatel-owned upland and state-owned sovereignty submerged lands in coastal areas. Secondly,it sets forth the required procedures for the determination of tidal datums including mean high water and regulates the methods by which surveyors can locate the mean high water line on the ground. Finally the proposed act austhorizes the implementation of a continuing program of costal boundary mapping. The Act is to be administered by an existing state agency with jurisdiction in natural resources, coaster zone management or related areas.456 The agency is authorized to coordinate the efforts of all pub- lic and private organizations engaged in tidal survey or coastal mapping activities. 457 It may also assist in courts, legislative bodies and asministra- tive agencies and provide them with information regarding tidal surveys or coastal boundary determinations. 458 Moreover, the agency is em- powered to compile permanent records of tidal surveys and maps of the state's coastal areas. 459 to collect and preserve appropriate sur- vey data from coastal areas. 460 and to act as a public repository for copies of coastal maps.461 In addition to these record keeping and research functions, the agency is vested with considerable regulatory authority under the pro- visions of the Model Act. The agency's regulatory powers will be dis- cussed below 462. 455. The Model act is unique. No comparable statue or administrative regulation was discovered although the laws of twenty-eight states were researched and the appro- priate administrative agencies in all of these states were contacted for assistance. More over, the laws of eleven coastal European nations were checked without obtaining andy significant help. This research is reproduced in F. Malony & R. Ausness, The Proposed Florida Coastal Mapping Act and Its Relationship to Coastal Boundary Determination and Coastal Management in Florida 77-83 (1973) (unpublished report to Legislature of Florida on file with Florida Department of Natural Resources). 456. Model Act & 5(1). The Florida act is administered by the Department of Natural Resources. Ch 74-56 & 5(1) [1974] Fla Laws 36. Specific references to Florida or to the Department of Natural Resources have been omitted. All significant differences between the Florida statue and the Model Act will be mentioned or discus- sed in the footnotes 457. Model Act & 5(2)(a). 458. Id & 5(2)(e). 459. Id & 5(2)(e). 460. Id $ 5(2)(g). 461. Id & 5(2)(h). 462. See text accompanying notes 577-79 infra COASTAL BOUNDARIES 243 Finally, the Model Act contains thirty-one definitions,463 either taken verbaim from NOS publications 464 or reviewed for technical accuracy by NOS personnel. Twenty-one of these definitions are em- ployed in the statute itself, 465 while the remainder are included for pos- sible use by the agency in its rules and regulations.460 B. Legislative Recognition of the Mean High Water Line One of the primary objectives of the Model Act is to define public and private property boundaries as precisely as possible. Accordingly, section 4 declares the mean high water line to be the usual limit of private ownership in coastal areas. The proposed act defines "mean high water" as "the average height of the high water over a nineteen- year period; or for a shorter period of observations, the average height of the high water after corrections are applied to eliminate known variations and ro reduce the result to the equivalent of a mean nine- teen year value".467 The "mean high water line" is "the intersection of the tidal plane of mean high water with the shore.468 The decision of the United States Supreme Court in Borax v. City of Los Angeles, 469 discussed earlier, provides the legal justification for the use of a "mean high water line" as a prop- erty line in the Model Act. While the older common-law standard in vague and uncertain. the mean high water line standard utilized in the Act has an accepted scientific meaning. In addition, since it is used by NOS, both govermental agencies and private property owners can make use of NOS survey data in locating their own boundaries. State which recognize the low water mark as the boundary be- tween upland and submerged land 470 may substitute for section 4 a pro- 463. Model Act & 3. 464. These publications include H. Marmer, supra note 77; P. Schureman, supra note76 2 A , supra note 5. 465. These include "agency," "apparent shoreline." "approved coastal zone map," "comparision of simultaneous observations," "control tide stations," "datum," "daturn plan," "foreshore," "geodetic bench mark," "local tidal daturn," "mean high water," "mean high-water line," "mean low water line," "mean range differ- ence," "national map accuracy standards," "tidal bench mark," "tidal datum," "tide." "tide station," and "time difference," 466. These include "demareation," "diurnat tides," "interpolated water elevation," leveling," "mixed tide," "nineteen-year tidal cycle," "nonperiodic forces," "photogram- "semidiurnal tides," and "tidal day," 467. Model Act & 3(15). 468. Id & 3(16). 469. 296 U.S 10 (1935) 470. . Delaware, Georgia, Maine, Massachusetts, New Hampshire, Pennsylvania and Georgia. 0 244 NORTH CAROLINA LAW REVIEW [Vol. 53 vission declaring the mean low water line to be the correct standard. Both "mean low water"471 and "mean low water line"472 are defined in the statue. Moreover,because of their significance in the demarca- tion of federal-state boundaries under the Submerged Lands Act,473 mean low water datums are routinely determined by NOS and can, therefore conveniently be represented on approved coastal zone maps. 474 As previously discussed, even in high water jurisdictions, the mean high water line does not always constitute the boundary between public and private lands. These also include, for example, grants of sub- merged lands by the state as well as grants by foreign powers or the federal government prior ro statehood. Accordingly, such exceptions to this general rule must be taken into account by any legislation which purports to establish coastal boundaries. Therefore, language in section 4 recognizes that some states have made valid grants of submerged land to private landowners under varios reclamation and improvement statues.475 The Model Act de- clares that no provision "shall be deemed to constitute a waiver of state ownership of sovereignty submerged lands, nor shall any provision of this act be deemed to impair the title to privately-owned submerged lands validly alienated by the state or its legal predecessors." 476 This lagnuage avoids any questions concerning the validity of land grants prior to satehood. Grants of submerged lands below the mean high water line by foreign powers 477 or the federal government 478 have been upheld by the United States Supreme Court and could not, therefore be invalidated unilaterally by state legislation. Another exception to the general rule may occur for tidal flats, inlets and bays. In some states all tidal waters are considered navi- 471. "Mean low water' is "the average height of the low waters over a nineteen- year period; or for shorter periods of observations, the average height of low waters after corrections are applied to climinate known variations and to reduce the results to the equivalent of a mean nineteen-year value." Model Act $ 3(17). 472. The "mean low water line" is defined as "the intersection of the tidal plane of mean low water with the shore." Id & 3(18). 473. 43 U.S.C & & 1301-15 (1970). 474. Both the mean low water line and the mean high water line appear on maps produced in connection with the NOS-Florida coastal mapping program. 475. E.g. Fla. STAT. & 253.121 (1967); see F. Maloney, S. Plager & F. Baldwin, supra note 7. && 120-28. 476. Model Act & 4(1). 477. Knight v. United States Land Ass'n, 142 U.S. 161 (1891); City of San Fran- cisco v. LeRoy 138 U.S. 656 (1891). 478. Shirley v. Bowlby, 152 U.S 1, 47-48 (1894). See also United States v. Alaska, 423 F.2d 764 (9th Cir. 1970) (fresh water lake). COASTAL BOUNDARIES 245 gable, while either states treat tidal waters as navigable only if they are navigable in fact. The qualifying phase "along the shores of land im- mediately bordering on navigable waters" is recommended for use in such states. 480 Finally, the Model Act fully recognizes the ambulatory nature of coastal boundaries.481 Section 4(2) states that nothing in the Act is intended to modify the common law with respect to the legal effects of accretion, reliction, crosion or avulsion. The mean high water line as mapped must of necessity represent the boundary at a given point in time. Where shoreline alteration occurs, although the elevation of mean high water remains constant and determinable by survey, the physical boundary will shift, and will no longer correspond to the line represent on the map. Thus, the Act does not attempt to "freeze" property lines as of the date of the map. C. Coastal Surveys In most jurisdictions the mean high water line is the recognized boundary between property in coastal areas. 482 Until recently, however, deter- mining the exact location of the mean high water line was not consid- ered important by the public and was consequently neglected by the engineering and surveying professions.483 In the absence of a scientifi cally accurate de . a number of methods were utilized to ap- proximate the actual location of the mean high water line. While these procedures were perhaps adequate for some purposes, the result ob- tained were often arbitrary and inaccurate. 484 Recent demands, how- ever, for coastal property have accentuated the need for more precise demarcation of coastal boundaries.485 In addition public recognition of the ecological value of the coastal zone and the need for the con- 479. See part III B(2)(b)(ii) supra. 480. Model Act & 4(1) would then read: "The mean-high water line along the shores of land immediately bordering on navigable waters is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership. . . . (emphasis added). 481. See Part III B(3) supra. 482. PROPERTY & 42027 (A.J Casner ed. 1952): Comment, Boundaries: An Unresolved Problem, 6 San Diego L. Rev 447. 455 (1969) 483. Cruth. supra 6 at 33 484. The use of geodetic levels in determining tidal elevations is an exapmle. 485. Prevention of Rear Admital Allen Powell. Director NOS. to Congressman A Powell . 246 NORTH CAROLINA LAW REVIEW [Vol. 53 1974 COASTAL BOUNDARIES 247 servation of the nation's marine resources" has reinforced the need follows that a method for accurately determining coastal boundaries for a more reliable methodology for coastal surveys.487 In response must be based on local tidal datums. Moreover, because of the un- to this need, the Model Act requires the agency to "develop uniform dulating nature of tidal elevations, the survey must proceed from the specifications and regulations for tidal surveying and mapping in coastal water side to the land instead of vice versa. Consequently, the land areas of the state.488 based method described above is not acceptable to NOS nor allowed under the Model Act.405 (1) Determination of Tidal Datums Because of the inadequacies of a mean high water line established (a) Local tidal datums by leveling methods, NOS has developed a more accurate procedure A significant aspect of a tidal datum as a marine boundary is the which utilizes local tidal datums.496 First, a tidal benchmark is placed accuracy and consistency of its recoverability.489 A well-established in the area where a long-term control tide is to be located. The tidal tidal datum, when referenced to permanent monuments such as tidal benchmarks497, is readily available for the surveyor to use for demarcat- ing the shoreline. Even when these marks are destroyed, it is possible can be referred. Next, a nineteen year tide station is set up in the vi- to recover the same datum with remarkable accuracy from a short series cinity of the tidal benchmark and tide levels are referenced to it for this of tidal observations.490 cover all of the tidal cycles.498 The Model Act, however, would not In the past, however, surveyors assumed that mean sea level was require nineteen-year observations by private persons. This responsi- a uniform elevation along the entire coast line of the United States.491 bility has been assumed by NOS. At the present time there are 130 Therefore, once a vertical datum for the mean high tide was established central tide stations located along the entire American coastline.499 by a control tide station, this value was taken inland and leveled492 by These stations comprise the "National Tide Observation Network." 500 conventional methods along a road or other suitable surface until the However, it has been estimated that an additional seventy stations are property in question was reached. Then the mean high water value needed in order to obtain sufficient data for the accurate mapping of would be located on the shore.493 coastal boundaries.501 A mean high tide level however, is not actually a uniform level. Instead it is an undulating line that varies from point to point. As a are at the same elevation above a specified datum surface." 2.A. SHALOWITZ, supra result, the intersection of a mean high tide with the land connects points note 5 556. of differing elevation and forms a vertically undulating line. A mean 495. Section 15 of the Model Act states that bench marks shall not be used high tide line must not, therefore, be regarded as a contour line.494 It bench marks are based on a transcontinental the Mean Sea Level Datum of 1929 redsignated in 1973 as NGVD 486. See generally D.HOOD, INPINGEMENT OF MAN ON THE OCEANS (1971);W. and do not necessarily reflect the local mean high MATTHEWS F. SMITH & E. GOLDBERG, MAN'S IMPACT ON TERRESTRIAL AND OECEANIC water elevation Croth supra note 6, at 35. Therefore, they may be used only when ECOSYSTEMS (1971);B. KETCHUM, supra note 1. NOS of the agency supplies a correction factor so that they may be related to the local 487. Guth, supra note 6, at 33-34. tidal datum. 488. Model Act 5(2)(f). 496. A.Powell, supra note 485,at 3-4;NOS, Federal-State Mapping Series, Map 489. Recovery is the process of finding local tidal datums by reference to permanent No. IP 00143 NOAA Coastal Boundary Mapping Program 1973) thereinafter tidal benchmarks. This process also insures that the datum can be verified. See H. cited as NOS Map. MARMER,supra note 77, at 24-25. 497. Information on local tidal elevations is preserved by brass disks which may be 490. A. Powell, supra note 485, at 4. sunk into concrete monuments. H.MARMER, supra note 77,at 24; see Model Act 491. Z.A. SHALOWITZ, supra note 5, at 62-63 n.49. 3126). 492. For a description of leveling see H. RAPPLEYE, MANUAL OF GEODETIC LEVEL- 498. For description of tide gauges used to record observations over a period of ING (U.S. Coast & Geodetic Survey Spee, Pub. No. 239, 1948). months see H.MARMER, supra note 77, at 26-28. 493. See 2A. SHALOWITZ,supra note 5, at 48-49,62-63,173-75. 499. A.Powell, supra note 485, at 3. 494. Guth, supra note 6, at 35; Ordnance Survey, High and Low Water Marks as 500. Id, at 3. shown on Ordnance Survey Maps, Leaflet No. 5 (OS 705), 3,July 1970 (Great Brit- 501. Id, at 3-5. The information provided by these control tide stations enables ain). "Contour" is defined as "an imaginary line on the ground all points of which NOS to calculate the following vertical datums: (1) mean high water; (2) mean low mean water level. From these vertical datums the following horizontal mean high water (2) mean low water line; and 248 NORTH CAROLINA LAW REVIEW (Vol. 53 In areas, such as bays and estuaries, where topographic and hydro- grahic conditions affect the tidal pattern, additional tide stations must be established. Tidal observations must be taken ta ehses stations for at lelast twelve months in order to average out seasonal variations and short-term meteorological effects. The information obtained from these twelve-month tide stations is then compared with the nearest control tide station data and corrected to an ppropriate nineteen-year value. As a general rule, twelve-month stations are maintained by governmental agencies, such as NOS, rather than by private individuals. The elevation of mean high water in areas between long-term tide stations may be obtained by installation and observation of tide gauges for thirty day periods at such locations. The data obtained from these stations must be referred back through the twelve-month tide stations to the control tide station data and corrected to the approprate nine- teen-year values. In addition, tidal datums obtained from all types of tide stations should be referenced to permanent monuments to assure accurate and consistent recovery by field surveyors. NOS and other governmental agencies utilize thirty-day tide sta- tions as part of their coastal mapping activities; the Model Act would require private parties to employ these procedures also in order to determine local tidal elevations. This procedure is described and authorize in section 14 of the Act. While this method may be somewhat expensive, it is generally the only way to establish the correct local tidal datum and thus insure an accurate determination of the coastal boundary. In some cases, however, a cheaper and less time-consuming proce- dure can be utilized without breaching acceptable standards of ac- curacy. This approach, known as "interpolated water elevation" or IWE method, is also allowed with the consent of the agency. An interpolated water elevation (IWE) point is a local mean high water elevation determined by interpolation from established datums at two adjacent tide stations. IWE points can be established by transfer, provided that the shoreline characteristics between the adjacent tide stations are similar and uninterrupted. In addition, time and range dif- ferences must be within acceptable limits. (b) Mean high and mean higher high water datums While the mean high water datum normally reflects an average of all daily high tides, problems may arise where certain tidal chracter- istics are encountered. there are three types of tide: daily, semidaily and mixed. A tide is considered to be daily or diurnal when only one high and one low water occur within a single tidal day. In a semidaily or semidiurnal tide, two complete tidal cycles take place so that there are two high and two low waters each tidal day. There is little diurnal inequality, however, associated with a semidaily tide. Diurnal inequality refers to differences in height between correspond- ing morning and afternoon tides. In a mixed tide, two high and two low waters occur within a single tidal day, but there is also significant diurnal inequality. This inequality may arise with respect to the high waters, low waters, or both. Since "mean high water" is the average height of the high waters over a nineteen-year period, there is no difficulty in calculating the mean high water elevation when only one high water occurs during a particular day. However, when two high waters occur, as in the case of semidaily and mixed tides, a determination must be made whether 502. Id. at 4. 503. There are two methods utilized to correct tidal datum obtained from short-time observation to nineteen-year tidal datum: (1) comparison of simultaneous observations; (2) correction by tabular values. The first method is generally moree satisfactory. Both methods are described in detail in H.MARMER, supra note 77, at 87-95. 504. Tidal bench marks provide the means for recovering datums determined from tidal observation. Id. at 24. 505. Model Act 55 14 (1)-(2). 506. Id 55 14(3)-(6). 507. Id 5 3(12). 508. Until experience establishes better guidelines, the time difference between adja- cent tide datums should not exceed ten minutes, and the range difference between adja- cent tide datums should not exceed ten percent. See Guth, supra note 6,at 5. 509. See Part III A supra 510. The Model Act 5 3(9) defines "diurnal tides" as "tides having a period or cycle of approximately one tidal day." A "tidal day" is "the time of the rotation of the earth with respect to the moon, or the interval between two successive upper transits of the moon over the meridian of a place." Id 3(28). The usual tidal day is 24 hours and 50 minutes. See H.MARNER, supra note 77, at 9. 511. "Semidiurnal tides" are defined in the Model Act as "tides having a period of approximately on-half of a tidal day." Model Act 3(25). 512. See H.MARNER,supra note 77, at 10. 513. The term "mixed tide" is defined as "the type of tide in which the presence of a wave is conspicuous by a large inequality in either high or low water heights with two high waters and two low waters usually occurring each tidal day. The name is usu- ally applied to the tides intermediate to those predominantly diurnal and those predom- inantly semidiurnal." Model Act 3(20). Strictly speaking, all tides contain both daily and semidaily constituents. In the semidaily type, however, the daily element is insignificant, while in the daily type, the semidaily influence is minimal. Where the two constituents are nearly equal, a mixed tide results. H. MARNER,supra note 77, at 17. NOS has devised mathematical formulas to determine whether a particular tidal pattern should be classified as daily, semidaily or mixed. Id. at 21-22. 514. H.MARMER, supra note 77, at 17. 250 NORTH CAROLINA LAW REVIEW (Vol. 53 to include both of the high water levels in the calculation of mean high water. If only the higher of the two highs is used, the resulting tidal datum is "mean higher high." Since this tidal elevation is higher than one that would include the lower highs as well, its use in coastal bound- ary determinations would result in a loss to the upland owner and a gain to the owner of the submerged bed, usually the state. Normally it would seem that both high waters should be consid- ered in determining the mean high water elevation. An exception to this principle of using both high waters may be warranted in areas where one daily tide is predominant, but where mixed tides occur at certain periods each month. These secondary tides, because of their small range, are often difficult to measure. Therefore, it has been sug- gested that these occasional secondary high waters be ignored when mean high water is determined. In some area where mixed tides occur, predominant diurnal or semidiurnal tide may not be obvious. The selection of a specific datum plane in such mixed tide areas may have to be deferred until adequate tide data is collected and analyzed. Until such data is established, the mean higher high water can provide a reliable datum for engineering and surveying purposes. Although this mean higher high water datum may not be the boundary between state and private ownership, its use will protect public lands and prevent possible irreparable encroachment by private development. For this reason the Florida Coastal Mapping Coordinator has tentatively decided to map the mean higher high water line in such areas pending development of sufficient data so that when appropriate, both high waters can be utilized for purposes of calculating mean high water. (2) Demarcation of the Shoreline Once the proper tidal elevation is determined, the surveyor must then ascertain the horizontal component. Section 15 states that "the location of the mean high water line or the mean low water line shall be determined by methods which are approved by the agency for the area concerned." The agency, therefore, must issue detailed regula- tions to describe acceptable procedures. These will depend on the de- gree of accuracy required and the shoreline conditions involved. (a) Survey methodology There are several methods which can be used to determine coastal boundaries once the proper tidal datums have been established. For large-scale coastal mapping infra-red photography is the most appre- priate method. This approach will be used by NOS to prepare the approved coastal zone maps authorized by the Model Act. After tidal datums are established, an airplane is flown over the area to be mapped at precisedly the time when the water is at the level corresponding to the desired tidal datum. This is accomplished through radio communica- tion between the aircraft crew and ground personnel at the appropriate tide station. Coastal boundary maps can be produced from these photographs. The accuracy of these maps depends on both the map scale and the photographic scale. Where greater accuracy is required, a field survey on the ground will be required. Where this method is used, local tidal datums must be determined, as always, by tidal observations from a thirty-day tide station or by means of the IWE procedure. After ade- quate tide datums are established for the specific area, the horizontal location of mean high water at specific points on the shore may be ac- complished by leveling from the tide stations to points of land in the immediate area, or preferably by observing the intersection of the water with the land a mean high tide at these points. If the shore is gently sloping or the bottom uneven, it is particularly important tat the observation of the intersection of the water with the shore be as close as possible to the tide stations. Once a sufficient number of these points are locted, they may be joined by appropriate techniques, in- 515. The Texas courts have used the mean higher high water line to delimit the boundaries of Spanish and Mexican land grants made prior to 1836. Luttes v. Texas, 159 Tex. 500,324 S.W.2d 167 (1958). See also Roberts, supra note 79. 516. H. MARMER, supra note 77, at 86. 517. Id. at 86-87. 518. Telephone conversation between Jack Guth, Coastal Mapping Coordinator, State of Florida, and F. Maloney, Sept.6, 1974. 519. Model Act 15. 520. Aerial photographic coverage of a mapped area includes both black and white infrared film exposure and natural color film exposure. The infrared film captures the land/water interface. W.HULL, supra note 4, at 4. 521. For a detailed description of the actual process of insuring the accuracy of the aerial photography see id. at 4-6. 522. "At that precise time (mean high tide) when the high water reaches that exact mark on the staffs on either side you mark the line where the water is -- actually where the water is. So the water does the survey, nothing else." Testimony of J.Guth, In re Committee Meeting Estero Bay Land Transactions,Committee on Natural Resources, at 238 (Lee County, Fla., Nov. 15, 1973). 252 NORTH CAROLINA LAW REVIEW (Vol. 53 cluding, in suitable cases, aerial photography or the use of botanical data, or a combination of both. Leveling over extensive distances is not an appropriate method of joining such points. (b) Surveys in vegetated areas Since the National Ocean Survey is primarily concerned with navi- gational charts, it maps only the apparent shoreline in areas where the mean high water line is obscured by vegetaion. The apparent shoreline is defined as the intersection of the mean high water datum with the outer limits of vegetation that present to the navigator the ap- pearance of the shoreline. Since the mean high water line may actually be considerably landward of the apparent shoreline in most areas, the apparent shoreline cannot be used as a property boundary line. Recommended NOS survey procedure for establishing the actual mean high water line in vegetated area is, when possible, to physically trace a line on the ground, even though this may involve wading and staking. The density and resistance of marsh and man- grove stands to penetration limits the use of loine of sight surveying and also adds to the difficulty of accurately establishing the mean high water line in heavily vegetated areas. These difficulties have led to the use of other approaches to estab- lishing boundary lines in such areas. The least satisfactory has been the substitution of a fixed line, the meander line, for the actual bound- ary. The second approach, proposed by some biological scientists, is to use the vegetation itself to locate the mean high water line. The meander line has occasionally been used when it is imprac- tical to locate the actual mean high water line. Meander lines are sur- veyed lines that run along the edge and usually slightly shoreward of a body of navigable water to determine the general land area. The meander line of a particular piece of land will be a straight line or a series of straight lines connecting points or monuments on the shore. Generally, unless a clear intent to make the meander line the boundary is shown, the water's edge is the actual boundary of meandered property. However, there are situations, as exemplified by Udall v. Oclschlaeger, in which boundaries of federal public do- main lands are defined by reference to the meander line rather that by reference to tidal datums. The Oclschlaeger decision involved federal lands located near the Alaskan seacoast. The case arose out of the government's refusal to approve the plaintiff's application for a patent under the federal home- stead legislation. According to the government, the land in question had been previously withdrwn from entry by Department of Interior Public Land Order 576 that purported to withdraw from appropriation an area "parallel to and one mile distant from the line of mean high tide of Turnagain Arm," a tidal inlet. The Interior Department con- stured "the line of mean high tide" in the Order to mean the meander line, while the plaintiff maintained that the term referred to the mean high water line as defined by the Supreme Court in Borax Consolidated Ltd. v. City of Los Angeles. The lower court remanded the matter to the Department of the In- terior with directions to utilize the Borax standrd. On appeal, however, e court of appeals reversed, holding that the Interior Department's use of the line of "mean high tide" intended to refer to the meander line. According to the court, the Department's interpretation was controlling for purposes of identifying the lands affected by its with- 523. See notes 520-21 and accompanying text supra. See also Guth, supra note 6, at 36. 524. See also Guth, supra note 6, at 36. 525. Telephone conversation, supra note 518. 526. Z.A. SHALOWITZ, supra note 5,at 177-82. See also NOS Map, supra note 496. 527. Model Act 3(2). 528. Z.A. SHALOWITZ, supra note 5, at 177. 529. NOS Map, supra note 496. 530. Id. E.g., guss, Tidelands Management Mapping for the Coastal Plains Re- gion, 1972 PROCEEDINGS OF THE AM. SOC'Y OF PHOTOGRAMMETRY 251,256 (Fall Con- vention). 531. Z.A. SHALOWITZ, supra note 5, at 450. 532. Den v. Spalding, 39 Cal. App. 2d 623,625,104 P.2d 81,83 (1st Dist. Ct. App. 1940). See also Z.A. SHALOWITZ, supra note 5, at 450. 533. Mitchell v. Smale, 140 U.S. 406,414 (1891); Hardin v. Jordan, 140 U.S. 371, 3RO (1891). The general statement of the rule is that "a meander line may constitute a boundary where so intended or where the discrepancies between the meander line and the ordinary high water line leave an excess of unsurveyed land so great as clearly and palpably to indicate fraud or mistake." Lopez v. Smith, 145 So. 2d 509,515 (Fla. 1962). 534. 389 F.2d 974 (D.C. Cir. 1968). 535. The land involved had not been surveyed. The area just to the north, however, had been surveyed and the points on that survey were used to define the area to be with- drawn. Public Land Order 576 described one of the boundaries of the withdrawn area as "Northwesterly,11 miles along line of mean high tide of Turnagain Arm to meander corner on south boundary of section 32, T.12 N, R, 3W." According to the court, "Since the area to the north had been surveyed by the running of a meander line on its seaward side, the use of the base point of the 'meander corner' suggests that with- drawal order contemplated a continuance of the meander line down the coast to the south." 389 F.2d at 976. 254 NORTH CAROLINA LAW REVIEW [Vol. 53 drawal order.537 Courts have on occasion declared the meander line to be the prop- erty boundary where the water line was obscuted by mangrome in cases in which the state presented no evidence as to the location of the mean high water line. Trustees of the Internal Improvement Fund v. Wetstone538 involved an island meandered under the original govern- ment patent. The Florida Supreme Court, reasoning that it is the States's duty to establish the boundary between private and sovereignty lands, accepted the meander line as the boundary.539 Decisions such as this should encouraage the state to develop an accurate coastal map- ping system, to avoid jeopardizing large areas of state-owned tide- land.540 In Alaska, in a trespass case, the meander line was presumed sub- stantially to indicte an obscured mean high water line.541 It is interesting to note that the court did not hold that the meander line would be presumed the boundary for title purposes; there was no implication that the State would relinquish its claim to the tideland be- 537. The court held that it must defer to the Secretary of the Interior's interpreta- tion of his own regulations so long as that interpretation was not plainly unreasonable or unauthorized: The question for us, therefore, as it was for the District Court, is not whether plausible grounds can be advanced for each of the contending constructions, but whether the one espoused by the Secretary is beyond the bounds of reason- ableness. If it is not, his view prevails, even though appellee's arguments are not without substance. This precedence derives from the rights which appropri- ately go with the great official responsibilities inherent in the administration of the public lands. We recognize them here. 389. F2d at 976. 538. 222 So. 2d 10 (Fla. 1969). 539. The State, in fact, offered no evidence as to the boundary line. Id, at 11. Pointing out that the meander line was in places several hundred feet offshore in navi- gable waters, the dissent argued that the state had no authority to convey sovereignty lands except in the public interest. Id. at 14-19. 540. This decision gives the owner of property abutting tidelands two choices of a boundary line. If his meander line is shoreward of the mean igh water line he can claim the mean high water line as the boundary. If, conversely, the meander line lies seaward of the mean high water line, he might be able to show that, owing to the lack of survey data, tide gauging stations and tidal bench marks, the old meander line should be the boundary of his property. See Florida First Nat'l Bank v. Trustees of Internal Improvement Fund,36 Fla. Supp. 42 (Cir. Ct. Monroe County 1971); Maddox v. Trus- tees of Internal Improvement Fund, 37 Fla. supp. 73 (Cir. Ct. Sarasota County 1970). For a criticism of the Wetstone decision see Note, 1 FLA. Sr. L. RIV., supra note 362, at 634-38. 541. Hawkins v. Alaska Freight Lines, Inc., 410 P.2d 992 (Alas. 1966). The pur- pose of the presumption was to determine whether a trespass had occurred in fact on certain private property. Since the trespass consisted of fill and road construction that had obliterated the actual water line, the court felt that it was unfair to require the prop- erty owner to produce evidence of the actual boundary. 1974) COASTAL BOUNDARIES 255 low the mean high water line because of the difficulty of locating the actual boundary.542 Use of the meander line as an alternative to the mean high water line presents both practical and legal problems. The meander line may be highly inaccurate, reflecting errors in surveying or failing to reflect changes in the shoreline since the original survey.543 If the meander line is seaward of the mean high water line the state may lose owner- ship and control of a valuable resource, while if the line is significantly shoreward of the mean high water line the riparian owner may lose some of his valuable riparian rights.544 Legally the meander line may be unacceptable as a standard boundary line because the private owner may not be deprived of his riparian rights to accretion without due process. Since meander lines do not fluctuate with changes in water levels or land contours, they are analogous to the type of fixed boundary attempted to be established by the State of Washington before such boundaries were declared un- constitutional in the Hughes and Washington decisions.545 It is con- stitutional questionable whether a fixed boundary along a coast could be established by a state, at least insofar as the boundary adversely af- fects the riparian owner.546 A meander line seaward of the mean high water line, however, may constitute a legal boundary. Washington has consistentley recog- 542. Id. 543. A dramatic demonstration of the consequences of such an error is a series of legal events involving lands abutting Estero Bay, Florida. Following the Wetstone de- cision a complaint was filed to determine the boundary line and to quiet title to large quantities of mangrove-covered land in the Bay. Windsor v. Trustees of Internal Im- provement Fund No.69-649 (Cir. Ct. Lee County, Fla., filed June 18, 1969). Claim- ing that the property consisted of mangrove swamp areas and that the mean high tide line could not be located with any real precision, the claimant offered two alternatives: (1) that the original federal government surveyed meander line be accepted as the boundary; (2) that the vegetation line be accepted as the boundary. The original meander line was obviously inerror, crossing as it did stretches of navigable water and purporting to include large areas of sovereignty land in the original grant. Rather than risk the issue in court, the State settled with the landowner by conveying to him substan- tial amounts of sovereignty land in exchange for land under the open water of the bay. Settlement Agreement, Windsor v. Trustees of Internal Improvement Fund, No. 69-649 (Cir. Ct. Lee County, Dec. 8, 1970). A lawsuit has recently been filed by the Florida Secretary of Agriculture joined by a local conservation organization to attempt to set aside a deed from the State to Windsor based on the Settlement Agreement. Lee County Conservation Ass'n v. State, No. 74-1476 (Cir. Ct. Leon County, Fla., Aug. 19, 1974). 544. See Part II A supra 545. See text accompanying notes 355-69 supra 546. Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973). Bonelli would appear to establish that the boundary of any property abutting on lands involved in the Sub- merged Lands Act is a federal question. See text accompanying notes 370-81 supra. 256 NORTH CAROLINA LAW REVIEW [Vol. 53 1974 COASTAL BOUNDARIES 257 nized meander lines seaward of the mean high water line as the bound- are based on the salt-water tolerances of varieties of marsh grasses552 ary line of upland property conveyed by government grant prior to and mangroves.553 Some claim that mapping of a marsh by aerial statehood.547 Washington's rule relies upon the theory that the State photography, delineating the limits of the various grasses, will show the is free to convey its sovereignty land as it wishes.548 The validity of mean high water line with greater accuracy than a field survey.554 this approach in other states, however, would depend upon their There has been no similar claim that the varieties of mangrove can be concept of the public trust doctrine. Since that doctrine is regarded distinguished by aerial photography. as a judicial restraint on the power of the legislature to alienate tide- Such vegetation tests have not been fully accepted as evidence by lands except in the public interest, 549 the courts should be much less the courts. One New York court has usesd marsh grass growths to likely to recognize meander line boundaries which in effect give away determine the general area in which the average high water line could sovereignty submerged lands. be found.555 However, the court noted that the grasses react to a Thus, the meander line does not appear to be a reasonable substi- change in tidal patterns over a period of several growing seasons.556 If tute for the mean high water line as a general rule. There is far too this is true, the vegetation obviously cannot mark a stable line over a much at stake, given the contemporary value of the tidelands, to allow period of 18.6 years.557 In a later case in the same New York court, the desire for a simple solution to outweigh the need for a state to pre- evidence by a state biologist as to the location of the mean high water serve its control over its natural resources. line by vegetation maps was viewed as inconclusive.558 The court ap- A more promising approach may be to locate the mean high water parently assumed that vegetation does not provide an exact location but line by the use of botanical data. In some areas the distribution of the can only show the general location of the mean high water line. types of vegetation makes it possible to establish a line approximating Despite questions as to their long-range reliability, vegetation tests the mean high water line. With respect to fresh water boundaries, the may be usefully combined with mean high water line point locations line devoid of vegetation has been used as a test for the line of ordi- established by field surveys to provide a physical interpolation of the nary water.550 A similar test, establishing a line below which terrestrial line between the points. If the vegetation of a particular area has been vegetation does not grow, has occasionally been used to establish the well studied, and the bottom configuration is uniform, perhaps as few tidal boundary.551 The problem in the marshes and mangrove stands points as one per one-half mile of marshland or mangrove will need is more complicated, however, since the vegetation involved grows in _______________________________________________________________________________________ salt water and does not leave a clean bare line at the water's edge. Pro- 552. In a South Carolina project the mean high water line was found to be brack- posed tests for determining the mean high water line in these areas eted by the high marsh grass species and one of two salt water speicies, spartina alterni- _____________________________________________________________________________________ flora or annual salicornip sp, Guss. supra note 530 at 251. 547. See, e.g., Mercer Island Beach Club v. Pugh, 53 Wash. 2d 450, 334 P.2d 534 553. See J. DAVIS, THE ECOLOGY AND GEOLOGICAL ROLE OF MANGROVES IN FLORIDA (1959). 3036-417 (Carnegie Institution of Washington Pub. No. 517, 1940). 548. Washington interprets the "disclaimer" clause of its Constitution, WASH. 554. Guss, supra note 530, at 256. CONST. art. 17, 2, as relinquishing all interest in tidelands patented before statehood. 555. Dolphin Lane Associates, Ltd. v. Town of Southampton, 72 Misc. 2d 868, 339 Cogswell v. Forrest, 14 Wash. 1, 43 P. 1098 (1896); Scurry v. Jones, 4 Wash. 468, 30 N.Y.S.2d 966 (Sup. Ct. 1971). The court considered the grasses spartina alterniflora P. 726 (1892). This rule has been applied only in cases involving Puget Sound, bays, and spartine patents to indicate the area in which daily tide flow occurs. The strip of lakes and waters treated as bays. Smith Tug & Barge Co. v. Columbia-Pacific Towing land where both types grew was held to be the general area of the mean high water Corp., 78 Wash. 2d 975, 482 P.2d 769, ccrt. denied, 404 U.S. 829 (1971) and cases line. No greater accuracy was attempted by the court since the parties had agreed to cited therein. accept a metes and bounds description once the general boundary was established. 549. Note, Maryland's Wetlands: The Legal Quagmire, 30 MD. L. REV. 240, 261 556. ld. at , 339 N.Y.S.2d at 985. This distrust of the vegetation boundary has (1970). See Sax, supra note 20, at 557-65. been challenged. See Guss, supra note 530, at 256. 550. Howard v. Ingersoil, 54 U.S. (13 How.) 380 (1851); United States v. 557. The 18.6 year period is required to incorporate all astronomic effects on the Claridge, 279 F. Supp. 87 (D. Ariz. 1967); Willis v. United States, 50 F. Supp. 99 (S. tides. If the grasses are shifting as the tide shifts through its patterns with perhaps a D.W. Va. 1943); St. Louis, I.M. & S. Ry. v. Ramsey, 53 Ark. 314, 13 S.W. 931 (1890); lag of a few growing seasons, the vegetation is no more accurate than high tide obser- Wilcox v. Pinney, 250 Iowa 1378. 98 N.W.2d 720 (1959); Diana Shooting Club v. vation during the growing cycle of the grass. Hursting, 156 Wis. 261, 145 N.W. 816 (1914). 558. State v. Bishop, 75 Misc. 2d 787, 348 N.Y.S.2d 990 (Sup. Ct. 1973). The case 551. County of Hawaii v. Sotomura, 517 P.2d 57 (Hawaii 1973); Harkins v. Del involved a state claim to the marshland up to the mean high tide line as sovereignty Pozzi, 50 Wash. 2d 237, 310 P.2d 532 (1957); cf. Begnaud v. Grubb & Hawkins, 209 land. The court ruled that the evidence as to the mean high tide was irrelevant La. 826, 25 So. 2d 606 (1946) (using cypress growth to determine navigable waters). since the New York test for the boundary between public and private tidelands is the navigability of the water overlying the land. 258 NORTH CAROLINA LAW REVIEW [Vol. 53 1974 COASTAL BOUNDARIES 259 to be established.559 The method would obviously more accurately on occasion been effectively utilized to reconstruct the natural land con- mark the actual mean high water line than straight lines drawn between figuration.564 surveyed points--the method used in establishing a meander line. Moreover, even if the vegetation were not acceptable as evidence of (c) Surveys in areas of diminished tidal influence the actual line, it might be a useful tool to prevent gross errors in locat- ing the mean high water line. When the bed of a tidally-affected waterbody is owned by the The problem of determining the mean high water line where the state, privately-owned upland property may extend to: (1) the mean shore has been filled deserves some mention. Neither conventional high water line; (2) the mean water level line; or (3) the ordinary survey techniques nor observation of vegetation can help in this situa- high water mark. Selection of the appropriate boundary line, however, tion. Use of the meander line is one approach that has already been may present both serious practical and legal problems. discussed.560 Another approach that has been favorably mentioned by the courts is drilling through the fill, extracting core samples, and from (i) The mean high water line these samples obtaining a geologist's opinion as to the location of the mean high water line before the fill activity occurred.561 However, no In theory, the mean high water line is normally utilized for bound- court has established the mean high water line on this basis alone. In ary purposes in tidal waters where the bed is publicly owned. a case which required determining the ordinary high water mark as of Because tidal phenomena reflect cyclical astronomic conditions,565 ele- an earlier date on a fresh water river, an Iowa court considered a geol- vations based solely on tidal data are usually permanent and recover- ogist's evidence together with evidence from botanists and data able.566 The introduciton of nontidal constituents into the calculation gathered from a river gauge.562 No one method was considered con- process, however, may compromise the reliability of the vertical datum. clusive. Recently a Delaware court seemed willing to accept geologist's core samples as evidence of the mean low water line; however, a The masking of the tidal effect by nontidal forces such as sciche request to conduct the necessary drillings was denied for reasons of is an example of this condition. Sciche, which occurs in bays and har- estoppel.563 The core sample method, if proven accurate, could be a bors, is the oscillation of water due to barometric pressure, earthquakes, useful supplement to othe coastal mapping techniques in artificially and other nonastronomic forces.567 Arguably, sciche should be ignored filled areas. in determining mean high water,568 and there is some legal support for Such techniques include aerial photography. Federal, state, and this position.569 private firms have conducted aerial surveys, particularly in coastal regions, for about 50 years. Research of such courses will frequently (ii) The mean water level line produce high-quality photographs that in themselves or when compared to current tidal controlled aerial photography will indicate the extent In those areas where the range of the tide is small or where tidal of artifical fill. Survey records, including those used in the preparation effects are masked by meteorological conditions or fresh-water runoff, of NOS nautical charts and geological survey quadrangles, as well as NOS computes the mean water level instead of the mean high water those prepared by local surveyors, county land records, records of ______________________________________________________________________________________ historical societies, newspapers and recollections of local residents have 564. See, e.g., United States v. Stocco Homes, Inc., 498 F.2d 597, 603 (3d Cir, __________________________________________________________________________________ 1974); United States v. Keevan & Son, Inc., Civil No. 74-69 (S.D. Fla; June 27, 1974). 559. Testimony of J. Guth, In re Committee Meeting Estero Bay Land Transac- 565. There is, however, evidence in many areas of a rise in mean sea level due to tions, Committee on Natural Resources, at 241 (Lee County, Fla., Nov. 15, 1973). subsidence of the ocean floor and other causes. Levin & Cronan, The Impending Sub- 560. See notes 532-49 and accompanying text supra. mergence of the Coastal Zone, 1973 PROCEEDINGS OF THE AM. SOC'Y OF PHOTOGRAM- 561. Hawkins v. Alaska Freight Lines, Inc., 410 P.2d 992 (Alas. 1966). METRY 57, 57-58 (Fall Convention). This may affect the long-term accuracy of the 562. City of Cedar Rapids v. Marshall, 199 Iowa 1262, 203 N.W. 932 (1925). vertical elevatio. H. MARMER, supra note 77, at 87. 563. State ev rel. Buckson v. Pennsylvania R.R., 273 A,2d 268 (Del. 1971). 566. A. SHALOWITZ, supra note 5, at 89. 567. See Corker, Where Does the Beach Begin, and to What Extent is This a Fed- eral Question, 42 WASH. L. REV/ 33, 64 (1966); H. MARMER, supra note 77, at 39. 568. H. MARMER, supra note 77, at 41-42. 569. City of Los Angeles v. Borax Consol, Ltd., 20 F. Supp 69 (S.D. Cal. 1937), aff'd 102 F.2d 52 (9th Cir. 1939). On appeal, the court of appeals decided the case on other grounds. 102 F.2d at 57-58. 260 NORTH CAROLINA LAW REVIEW [Vol, 53 1974 COASTAL BOUNDARIES 261 datum.570 This elevation is determined by averaging the height of the to the weight of authority, the ordinary high water mark is the line that water level athourly intervals over an appropriate period of time.571 the water impresses upon the soil by covering it for sufficient periods The intersection of this datum with the shore is known as the mean to deprive it of vegetation and to destroy its value for agriculture.573 water level line. Since the mean water level line may appear on NOS Unlike the mean high water line or the mean water level line, the ordin- maps produced in conjunction with state coastal mapping programs, nary high water mark does not represent the intersection of a particular some discussion of the legal validity ofits use as a property boundary vertical datum with the shore. Instead, it is a physical mark caused is necessary. by the action of the water on the land, and refers to a point at which In some bays and lagoons, where the range of the tide does not the character of the soil and vegetation, if any, differs from that of the exceed a tenth of a foot, the daily or semidaily high and low waters upland.574 cannot be distinguished with sufficient accuracy to meet NOS standards. Moreover, the ordinary high water mark refers to the usual or In such situations, the mean water level is much easier toobtain and, ordinary water level and does not extend to lands temporarily sub- as a practical matter, does notdiffer significantly from either the mean merged by flood waters.575 The federal courts have also rejected high or mean low water datums. Since the vertical elevations of mean claims that the ordinary high water mark of a river is the level of annual high water andmean water level are virtually identical, it follows that flooding.575 Thus, it seems clear that the mean water levelline cannot the mean water levelline could serve as the legal equivalent of the be used in lieu of the ordinary high water mark for boundary determi- mean higher water line. nation purposes in fresh waters. For example, if floodlevels are in- However, where the tidal influence in a tidal river or stream is cluded along with usual water levels in the calculation of the mean masked by interference from fresh water runoff, a mean water level water level, the resulting mean water level line maybe located a con- off, even where it results from seasonal flooding,is not a cyclical or siderable distance landward of the ordinary high water mark. It recurrent condition in any regular sense. More importantly, it is not follows, therefore, that the freshwater boundary cannont be determined offset by other phenomena in the same way as are the purely tidal con- by means of a mathematical average ofthe daily water levels. stituents that make up mean high water. Consequently, the inclusion of elevations caused primarily by fresh water runoff in the mean water (3) Other Statutory Provisions level datum would create the same forms of inaccuracy in the vertical datum as the presence of sciche in the mean high water elevation. The Model Act requires that surveys be made only by licensed Therefore, if the mean water level is to be used as the equivalent of surveyors or by approved federal employees.577 It also requires that mean high water, water levels caused by runoff should be eliminated copies of all private coastal surveys be sent to the agency within ninety from the computation of this datum. If it is not practical to do so, ar- days after completion if they are tobe recorded orused in any judicial guably, the watercourse should be treated as fresh water. This would require the use of the ordinary high water mark concept for boundary Streams--Water Rights in a Water Wonderland, 10 U. FLA. L. REV. 294, 275 (1957); determination purposes. Annot., 74 A.L.R. 597 (1931). "The thread of thestream" when called for as a bound- ary line for private estates, is the middle line between shores, irrespective of the depth (iii) The ordinary high water mark of the chanel, taking them in the natural and ordinarystage of the water, at medium height, neither swollen by freshets nor shrunk by droughts." State v. Muncie Pulp Co., The ordinary high water mark is the usual boundary between the 119 Tenn. 47, 78 104 S.W. 437, 445 (1907), quoting Branbam v. Bledsoe Creek Turn- bed of a navigable watercourse and the adjacent upland.572 According pike Co., 69 Tenn. 704, 706 (1878). 573. Howard v. Ingersoil, 54 U.S. (13 how.) 380, 415 (1851). 570. W. HULL, supra note 4, at 3. 574. Borough of Ford City v. United States, 345 F.2d 645, 648 (3d Cir.), cert. de- 571. p. SCHUREMAN, supra note 76, at 36. nied. 382 U.S. 902 (1965). 572. In the absence of special circumstances, the title of landowners along non- 575. Paine Estates Co. v. United States, 55 F. 854, 864 (C.C.E.D. Wis. 1893). navigable streams extends to the thread of the stream. Maloney & Piager, Florida's 576. United States v. Claridge, 279 F. Supp. 87, 91 (D. Ariz. 1967), alt'd per curdam, A16 F24 933 (9th Cir. 1969), cert. denied. 397 U.S. 961 (1970); Willis v. United States, 50 F. Supp. 99 (S.D.W. Va. 194), alt'd, 141 P.2d 214 (4th Cir. 1944); Kelley's Creek & N.R.R. v. United States, 100 Ct. Cl. 396 (1943). 577. Model Act 12. 262 NORTH CAROLINA LAW REVIEW (Vol. 53 or administrative proceeding. This will enable the agency to obtain and preserve this type of useful data. There are no criminal sanctions in the Model Act. The Act's suc- cess substantially depends on the cooperation of the professional sur- veyors. A powerful enforcement tool, however, is a provision which declares that no map or survey concerned with coastal boundaries and made after the adoption of the Act shall be admissible as evidence in any judicial or administraative proceeding unless it complies with the Act's requirements. D. The Coastal Mapping Program Section 6 of the Model Act directs the agency to conduct a com- prehensive program of coastal boundary mapping. the program will involve the determination of local tidal datums, such as mean high water, at appropriate intervals along the entire coastline of the state. In addition, the agency will publish a series of photogrammetic maps of the state's coastline, of suitable scale, on which the mean high water line will be represented. In connection with the mapping program, the agency may serve as the coordinating state agency for any program of tidal surveying or coastal mapping conducted by the federal government. Moreover, the agency may contract with any federal, state or local agency or with private parties for the performance of surveys, studies, investigations, mapping or related activities associated with the program. The Act contemplates, but does not specifically require, a joint federal-state pro- gram in which most of the actual surveying and mapping activities would be performed by NOS. The program authorized by the Model Act was inspired by a joint coastal mapping program currently sponsored by NOS and the State of Florida. The program originated in a 1969 agreement between the State of Florida and the NOS for establishing tidal datum planes and mapping the Florida coastal zone. Under this program NOS assumed responsibility for establishing tide stations, determining tidal datums, and producing, printing, and distributing a series of maps which ac- curately portray the mean low-water line and, insofar as practical, the mean high-water line. The tidal datums and maps are to be used by Florida as source data for selecting baseline points to establish coastal boundaries in- cluding seaward boundaries and boundaries between sovereignty land and upland subject to private ownership. For NOS, the survey will fur- nish base maps and related data for its marine charting program. Since public acceptance is largely dependent on the accuracy, availability and official status of the maps, the proposed act has dealt with each of these matteres. The question of accuracy has been men- tioned before in connection with survey methodology. The procedure by which tidal elevations are determined in connection with the map- ping program is the most accurate practicable method available, and the maps themselves conform to national map accuracy standards. Moreover, in order to insure the continuing reliability of the maps, the agency must review its data at least every twenty-five years, and where necessary, publish updated and revised maps. In addition, when natural processes or human activities cause sudden shoreline alteration, the agency is authorized to investigate and issue revised maps. To insure that the maps will be readily available to the general public, the Act provides for their publication and requires that they be filed among the public land records of each affected county. The proposed act also gives official sanction to coastal maps pro- duced under the program. Upon formal adoption and publication by 578. Id. 13. 579. Id. 16. 580. "The (agency) is authorized and directed to conduct a comprehensive program of coastal boundary mapping with the object of providing accurte surveys of the coast- line of the state at the earliest possible date." id. 6. 581. Maps produced under the NOS-Florida coastal mapping program are published at a 1:10,000 scale. A.Powell, supra note 485, at 5. 582. Model Act 5(b). 583. Id. at 5(d). 584. A. Powell, supra note 485, at 8. 585. W. HULL, supra note 4, at 2. 586. NOS has undertaken to compute the vertical datum within a tolerance of 0.1 foot. Id, at 3. 587. Model Act 7. "National map accuracy standards' means a set of guidelines published by the office of management and budget of the United States to which maps produced by the United States government usually adhere." Id. 3(21). See L. SWAN- SON, TOPOGRAPHIC MANUAL, PART II (U.S. Coast & Geodetic Survey Spec. Pub. No. 249, 1949). 588. Model Act 9(1). 589. Id. 9(2). The agency may also publish supplemental maps of a larger scale. Id. 9(3). Revised or large-scale supplemental maps may be designated "approved coastal zone maps" following action by the agency in accordance with the procedures established in section 8, Id. 9(4). 590. Id. 8. About 400 copies of each map are published by NOS in connection with the NOS-Florida coastal mapping program. Maps may be purchased from NOS for $2.50 apiece. 264 NORTH CAROLINA LAW REVIEW [Vol. 53 1974 COASTAL BOUNDARIES 265 Where the location of the mean high water line is obscured by the agency, the maps are designated "approved coastal zone maps. vegetration, as in the case of marshland or mangroves, NOS normally Section 10(1) expressly provides for the admissibility of approved maps only the apparent shoreline.598 The apparent shoreline rep- coastal zone maps as evidence in all judicial or administrative pro- resents "the intersection of the mean high-water datum with the outer limits of vegetation is and appears to the navigator as the shoreline.597 ceedings throughout the state. This provision avoids the possible re- Where vegetation is quite extensive the actual mean high water line quirement that a cartographer from NOS attend each trial or adminis- may be considerably landward of the apparent shoreline.598There- V. CONCLUSION trative proceeding to lay the foundation for the admission of a map or fore the apparent shoreline, as depicted on the maps, has no legal sig- maps. 593 Since the mean high water line, as depicted on the maps, nificance and is not treated as a property line under the Model Act.599 may vary as much as sixteen feet from the actual mean high water line.594 landowners who wish to ascertain their coastal boundaries with greater precision should make a field survey. When performed in V. Conclusion accordance with the provisions of section 14 of the model Act, the re- The period of uncoordinated and wasteful use of coastal resources sults of such a survey may be introduced as evidence to contest the ac- appears to be ending. Government at all levels is responding to public curacy of an approved coastal zone map. 595 concern over the coastal environment by assuming a greater role in the 591. Id. 8. The Florida Coastal Mapping Act of 1974, ch. 74-56. 8.[1974] process of coastal zone management. A viable regulatory effort, how- Fla. Laws 37. provides for a public hearing prior to formal approval by the agency ever, requires a rational administrative structure, a framework for plan- (1) Upon completionof a map or series of maps, the department shall trans- ning and policy making and an effective implementation scheme.600 mit a copy fo the mapor maps to the clerk of the circuit court for the country An essential prerequisite to the developmnet of such a program in which the land shown on the map is locted. In addition, the department is determination of the respective legal interests of both private shall publish in a newspaper of general circulation in the affectd area at leas landowners and the public in coastal areas. This involves a considera- once a week for four consecutive weeks a notice that a copy of the proposed properly and the physical delimitation of private and public ownership. be held at a specified time and place as provided in subsection The former subject is embraced within the notion of riparian rights in (2) Before a proposed map shall become in effective, the department shall hold the ease of private prperty and within the concept of the public trust a public hearing in the county or counties in which the land shown on the map doctrine in the case of state owned submerged lands. This article has is located concerned itself primarily with th later topic-the problem of coastal (3) After such public hearing the department may approve the proposed map boundaries and will conclude with a brief discussion of the relatin- with or without amendments or may withdraw it for further ship between coastal mapping and an overall management program. (4) The dcecision of the department these maps shall be known as approved The accurate determination an representation of coastasl boundaries is coastal zone maps" and copies thereof shall be filled among the public land rec- an important aspect of both the planning and implementation phases ords of all affected counties. of coastal zone management. 001 In the planning process, the maps are 592. Approved coastal zone maps shall be admissible as evidence in proceedings neccessary to represent existing or proposed land use patterns. They before any court. tribunal or agency of state or local govenment. The location of the 596. 2 A Shalowitz, supra note 5,at 177-82 mean-high or mean-low water lines represented on such maps may be more, precisly 597. Model Act 3(2). identified by the introduction of field surveys made in accordance withthe standars 598. see 2 A. Shatowitz supra note 5, at 176.77. and procedures set forth in sections 13 through 15 of this act" Model Act 10(1) 599. "Where approved coastal zone maps do not designate the mean high-water line but instead depicit an apparent shoreline, the apperent shoreline is not intended to repre- This provision was not included in the Florida Coastal mapping Act as a result of object- sent the mean high-water line. In such cases the mean high-water line may be located tions at the legeislative hearings, but the authors feel its inclusion is desirable and fully by field surveys of the type referred to in subsection (1) above Model Act 10(2) justified. 600 Schagnhann public Rights and Coastal Zone Management 51 N.C.I Rev I. 593 Starutes which provide for exeptions to the hearsay rule for official records 23.30 (1972) may eliminate the requierments for an in-court appearance by a cartographer in fedral 601. W. HULL supra note 4. courts see 28 U.S.C. 1733 (1970): Fed r. Civ.P. 44 see also Fla. Stat. 92.32 (1973) . But see Florida S. Ry.v. Parsons, 33 Fla. 631 15 So.338 (1894; AM. JUR,. PROOF OF FACTS 602(1960; 13 Fla Sen Evdience 298 (1957). 594. National Map Accuracy Standards require maps of a scale of 1:10,000 to be accurate to within 25 feet. NOS vouches map accuracy of this scale of within 16 feet. in Florida have so far revealed a maximum error of within 9 feet. Testimony of Com- mander Wesley N. Hall NOAA. Chef. Coastal Mapping Division. Nation Ocean sur- vey. Gorvernor's Coastal Mapping Conf. Tallahassee. Florida (Dec. 15,1973). 595. See Model Act 10(1). S 266 NORTH CAROLINA LAW REVIEW [Vol. 53 may also be used to depict biological and mineral resources, and to lo- cate problem areas. This ingormation is also required for planning in connection with beach nourishment and land acquisition activities. Maps and survey data is also required for regulatory purposes. At the federal level, for example, the administration of the dredge and fill permit programs under the Rivers and Harbors Act602 generates a great demand for such information. About 17,000 permit applications will be processed this year,603 and in each, the limit of the Corps of Engineers' jurisdiction, the mean high water line, must be ascertained and depicted.604 Similar data may be utilized by the Environmental Protection Agency for the purpose of enforcing the provisions of the Federal Water Pollution Control Act.605 The administration of com- parable programs at the state level also requires accurate coastal bound- dary date, as does the implementation of coastal construction set-back line requirements, shoreline zoning, and wetland protection provisions. This article has examined some of the difficulties associated with the ascertainment of coastal boundaries. It is hoped that the proposed Model Act will provide solutions to some of these problems. The authors recommend that the states:(1) define coastal boundaries for purposes of private ownership in terms of the mean high or mean low water line which has a scientifically recognized meaning;(2) require the development and use of a coastal survey methodology which will insure that property boundaries are determined with all possible ac- curacy; and (3) provide for a comprehensive program of coastal zone mapping. The implementation of these proposals, coupled with an ef- fective coastal zone management program, cannot fail to contribute to a better utilization of the nation's coastal resources. 602. 33 U.S.C. 401-66(1970). 603. H. Dolan. Coastal Problems Related to Water Levels(presentation to Seventh GEOP Research Conf., Ohio State Univ. June 6-7, 1974). 604. While the Corps utilizes every available source of information in checking the accuracy of permit applications, actual tidal observations are necessary for proper deci- sion making. While the use of the Sea Level Datum (National Geodetic Datum) eleva- tion in near shore areas is inadequate for these purposes, if no other data are available, the Corps uses it. Id, at 4-5. 605. 33 U.S.C. 1251-1376 (Supp. 1974). But see United States v. Holland,373 P. Supp.665 (M.D. Fla.1974). The Environmental Protection Agency in the Holland case argued that filling operations in the waters of Papy's Bayou near St. Petersburg, Florida, violated the provisions of the Federal Water Pollution Control Act. In that legislation "navigable waters" were defined as "waters of the United States, including the territorial seas." 33 U.S.C. 1362(7)(Supp. 1974). The court held that the dis- charging of sand, dirt and dredge spoil on land which was periodically inundated with the waters of Papy's Bayou violated the Act even though the land was located above the mean high-water line. 1974] COASTAL BOUNDARIES 267 VI Appendix Model Coastal Mapping Act An act relating to coastal mapping; providing definitions; providing powers and duties of the [agency], providing a comprehensive and continuous program of coastal boundary mapping which will permit ac- curate surveys; providing standards for establishment of local tidal datums and methods of determining mean high-water and mean low- water lines; providing for admissibility as evidence; providing for sever- ability; providing an effective date. Be It Enacted by the Legislature of the State of __________________: Section 1. Short title.--This act shall be cited as the "[Name of state]coastal mapping act of [year]." Section 2. Declaration of policy.--The legislature hereby de- clares that accurate maps of coastal areas are required for many public purposes including but not limited to the promotion of marine naviga- tion, the enhancement of recreation, the determination of coastal bound- aries, and the implementation of coastal zone planning and manage- ment programs by state and local governmental agencies. Accordingly, a state coastal mapping program is declared to be in the public interest. The legislature further recognizes the necessity of uniform standards and procedures with respect to the establishment of local tidal datums and the determination of the mean high-water and mean low-water lines, and therefore directs that such uniform standards and procedures be developed. Section 3. Definitions.--The following words, phrases or terms used herein, unless the context otherwise indicates, shall have the fol- lowing meanings: (1) "Agency" means [Specify agency which will administer the act]. (2) "Apparent shoreline" means the line drawn on a map or chart in lieu of the mean high-water line in areas where the mean high- water line may be obscured by marine vegetation. This line represents the intersection of the mean high-water datum with the outer limits of vegetation and appears to the navigator as the shoreline. (3) "Approved coastal zone map" means a map approved by the [agency]. (4) "Comparison of simultaneous observations" means a method of determining mean values by comparison of short-period observations 268 NORTH CAROLINA LAW REVIEW [Vol. 53 at a station with simultaneous observations made at a station for which mean values, based on long-period observations, are available. (5) "Control tide station" means a place so designated by the [agency] or the national ocean survey at which continuous tidal obser- vations have been taken or are to be taken over a minimum of nineteen years to obtain basis tidal data for the locality. (6) "Datum" means a reference point, line, or plane used as a basis for measurements. (7) "Datum plane" means a surfacr used as referance from which heights or depths aree reckoned, The plane is called a tidal datum when defined by a phase of the tide, for example, high water or low water. (8) "Demarcation" means the act of setting and marking limits or boundaries on the ground. (9) :Durnal tides: means tides having a period or cycle of ap- proximately one tidal day. (10) "Foreshore" means the strip of land between the mean high-water and mean low-water lines that is alternately covered and un- covered by the flow of the tide. (11) "Geodetic bench mark" means a permanently monumented and precisely referenced and escribed mark, usually a bronze tablet or copper or bronze bolt, leaded or comented into amasonry structure, which is established to give a definite high piint on the monument ot which geodetic elevations are referred. (12) "Interpolated water elevation" means a point between two adjacent tide stations where the water elevation has been determined by interpolation from established datums at the two tide stations. (13) "Leveling" means the opeeration of determining differences of elevations between points on the surface of the earth; the determina- tion of the elevations of points relative to some arbitrary or natural level surface called a datum. (14) "Local tidal datum" means the datum established for a specific tide station through use of tidal observations made at that sta- tion. (15) "Mean-high watere" means the average height of the high waters over a nineteen-year period; or for shorter periods of observa- tions, the average height of the high waters after corrections are applied to climinate known variations and to reduce the result to the equivalent of a mean nineteen-year value. 1974 COASTAL BOUNDARIES 269 (16) "Mean high water line" means the intersection of the tidal plane of mean high water with the shore. (17) "Mean low-water" means the average height of the low waters over a nineteen-year period; or for shorter periods of observa- tions, the average height of low waters after corrections are applied to eliminate known variations and to reduce the result to the equivalent of a mean nineteen-year value. (18) "Mean low-water line" means the intersection of the tidal plane of meqn low water with the shore. (19) "Mean range difference" means the variation of the mean range of the tide at two different tide stations. (20) "Mixed tide" means the type of tide in which the presence of a diurnal wave is conspicuous by a large inequality in either the high or low water heights with two high waters and two low waters usually occurring each tidal day. The name is usually applied to the tides in- termediate to those predominantly diurnal and those predominantly senidiurnal. (21) "National map accuracy standards" means a set of guide- lines published by the office of management and budget of the United States to which maps produced by the United States government usually adhere. (22) "Nineteen-year tidal cycle" means the period of time generally reckoned as constituting a full tidal cycle. (23) "Nonperiodic forces" means those forces that occur without regard to a fixed cycle. (24) "Photogrammetry" means the science of making precise measurements from photographs. (25) "Semidiurnal tides" means tides having a period of approxi- mately one-half a tidal day. (26) "Tidal bench mark" means a standar disk or other accept- able fixed point in the general vicinity of a tide station used for the purpose of preserving tidal information, to which the tide staff at the tide station and the tidal datums determined from observations at the tide station are originally referred. (27) "Tidal datum" means a plane of reference for elevations determined from the rise and fall of the tides. (28) "Tidal day" means the time of the rotation of the earth with respect to the moon, or the interval between two successive upper transits of the moon over the meridian of a place. 0 270 NORTH CAROLINA LAW REVIEW [Vol. 53 (29) "Tide" means the periodic rising and falling of the waters of the earth that result from the gravitational attraction of the moon and the sun acting upon the rotating earth. (30) "Tide station" means a place at which continuous tide observations have been taken or are to be taken to obtain tidal data for the locatlity. (31) "Time difference" means the variation in time between the occurrences of the same phase of the tide at two side stations. Section 4. Legal significance of the mean high-water line.- (1) The mean-high water line [along the shore of land immedi- ately bordering on navigable waters] is recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and upland subject to private ownership, provided, however, that no provision of this act shall be deemed to constitute a waiver of state ownership of sovereignty submerged lands, nor shall any provision of this act be deemed to impair the title to privately-owned submerged lands validly alienated by the state or its legal predocessors. (2) No provision of this act shall be deemed to modify the com- mon law of this state with respect to the legal effects of accretion, relic- tion, erosion or avuision. Section 5. Powers and duties of the [agency].- (1) The provisions of this act shall be administered by the [agency] (2) In addition to such powers as may be specifically delegated to it under the provisions of this act, the [agency] is authorized to per- form the following functions: (a) To coordinate the efforts of all public and private agencies and organizations engaged in the making of tidal surveys and maps of the coastal areas of this state with the object of avoiding un- necessary duplication and overlapping; (b) To serve as a coordinating state agency for any program of tidal surveying and mapping conducted by the federal government; (c) To assist any court, tribunal, administrative agency, or political subdivision, and to make available to them, information regard- ing tidal surveying and coastal boundary determinations; (d) To contract with federal, state or local agencies or with private parties for the performance of any surveys, studies, investiga- tions or mapping activities, for preparation and publication of the results thereof, or for other authorized functions related to the objectives of this act; 1974] COASTAL BOUNDARIES 271 (e) To develop permanent records of tidal surveys and maps of the state's coastal areas; (f) To develop uniform specifications and regulations for tidal surveying and mapping coastal areas of the state; (g) To collect and preserve appropriate survey data from coastal areas; and (h) To act as a public repository for copies of coastal area maps and to establish a library of such maps and charts. Section 6. Authorization of coastal mapping program.- The [agency] is authorized and directed to conduct a comprehensive program of coastal boundary mapping with the object of providing ac- curate surveys of the coastline of the state at the earliest possilbe date. Section 7. Mapping standards.-All maps produced under the provisions of this act shall conform at least to minimal national map ac- curacy standards. Section 8. Approval of maps by the [agency].-Maps produced under provisions of this act shall be designated as 'approved coastal zone maps" upon adoption and publication by the [agency] copies of such maps shall be filed among the public land records of each affected county. Section 9. Revised and supplemental maps.- (1) The [agency] shall endeavor to maintain the accuracy of its mapping program by reviewing its data at least every twenty-five years, and where necessary, issuing revised approved coastal zone maps. (2) Any private person or government official may advise the [agency] in writing of any instance in which significant shoreline alteration has occured as the result of natural conditions or human ac- tivities. Upon notification therof, or on its own initiative, the [agnecy] may investigate such cases and, where appropriate, authorize the pro- duction of a revised approved coastal zone map of the affected area. (3) Where appropriate and when needed or desirable for par- ticular areas, the [agency] may publish supplemental maps of a scale larger than the standard scale. (4) Revised or larger scale maps shall become approved coastal zone maps following approval by the [agency] in accordance with the provisions of section eitht. Section 10. Evidentiary effect of approved coastal zone maps.- (1) Approved coastal zone maps shall be admissible as evidence in proceedings beforge andy court, tribunal or agency of state or local 0 272 NORTH CAROLINA LAW REVIEW [Vol. 53 government.The location of the mean-high or mean-low water lines represented on such maps may be more precisely identified by the in- troduction of field surveys made in accordance with the standards and procedures set forth in sections 13 through 15 of this act (2) Where approved coastal zone maps do not designate the mean high-water line but instead depict an apparent shoreline, the apparent shoreline is not intended to represent the mean high-water d . line. In such cases the mean high-water line may be located by field surveys of the type referred to in sub-section (1) above Section 11. Standards and procedures; applicablility,--The es- tablishment of local tidal datums and determination of the location of the mean high-water line or thte mean low-water line, whether by federal, state or local agencies or private parties, shall be made in ac cordance with the standards and procedures set forth in section 13 through 15 of this act and in accordance with supplementary regulations promulgated by the agency. Section 12. Works to be permormed only by authorized personnel. -The establishment of local tidal datums and the determination of the location of the mean high-water line or the mean of low-water line shall be performed by qualified personnel licensed by the state or by the [agency]. Section 13. Notification to [agency].- Any surveyor undertak- ing to establish a local tidal datum and to determine the location of the mean high-water line or the mean low-water line shall submit a copy of the results therof to the [agency] within ninety days after the com- pletion of such work if the same is to be recorded or submitted to any court or agency of state or local government. Section 14. Standards for establishment of local tidal datums- (1) Unless otherwise allowed by this act or regulations promul- gated hercunder, a local tidal datum shall be established from a scries of tide observations taken at a tide station established in accordance with procedures approved by the [agency]. In establishing such pro- cedures full consideration will be given to the national standards and procedures established by the National Ocean Survey. (2) Records acquired at control tide stations, which are based on mean nineteen-year values, comprise the basic data from which tidal datums shall be determined. (30 Observations at a tide station other than a control tide station 1974] COASTAL BOUNDARIES 273 shall be reduced to mean nineteen-year values through comparison with simultaneous observations at the appropriate control tide station. the observations shall be made continuously and shall exten over such period as shall be provided for in [agency] regulations. (4) When a local tidal datum has been established, it shall be preserved by referring it to tidal bench marks in the manner prescribed by the [agency]. (5) A local tidal datum may be established between two tide sta- tions by interpolation where the time and mean range differences of the tide between the two tide stations are within acceptable standards as determined by the [agency]. The methods for establishing the loca tidal datum by interpolation shall be prescribed by regulations of the [agency]. (6) A local tidal datum property established through the use of continuous tide observations meeting the standards described in this section shall be presumptively correct when it differs from a local tidal datum established by interpolation. (7) the [agency] may approve the use of tide observations made prior to the effective date of this act for use in establishing local tidal datums. Section 15. Determination of mean high-water line or mean low- water line.-The location of the mean high-water line or the mean low- water line shall be determined by methods which are approved by the [agency] for the area concerned. Geodetic bench marks shall not be used unless approved by the [agency]. Section 16. Admissibility of maps and surveys.-No map or sur- vey prepared after the effective date of this act and purporting to establish local tidal datums or to determine the location of the mean high-water line or the mean low-water line shall be admissible as evi- dence in any court, administrative agency, political subdivision, or tri- buanl in this state unless made in accordance with the provisions of this act by persons described in section 12 hereof. Section 17. Severability.- If any provision of this act or the ap- plication therof to any person of circumstance is held invalid, the in- validity shall not affect without the invalid provision of application, and to this end the provisions of this act are declared severable. Section 18. Effective date-This act shall take effect on [appro- priate date]. 0 Comments BOUNDARIES OF THE COASTAL ZONE: A SURVEY OF STATE LAWS J. MICHAEL ROBBINS* and MARC J. HERSHMAN** Abstract A survey of coastal state legislation reveals several types of statutes affecting activities occuring in coastal regions: coastal management statutes, welland statutes, and shoreline stat- utes. Each coastal state has adopted methods to delineate coastal areas or features, whether an entire coastal zone, a limited feature such as wetlands, or shorelands. Boundary delineation is done ac- cording to linear measurements, political boudnaries, roads, and highways, vegatation, elevation, tidal flow, and other factors. An appendix is provided containing state statutory provisions relating to boundary-delincation techniques. Definitive inquiry into the natural processes, benefits, and characteristics of the coastal zone began in earnest on a national level in 1968, when the coastal zone as an area of special concern was noted in the annual report of the National Council on Marine Resources and Engineering Development.1 Impetus was added the following years with publication of the report of the Commission on Marine Science, Engineering and Resources entitled Out Nation and the Sea ("Stratton Report").2 During this same period, a series of studies were conducted under the suspices of the United States Department of the laterior. These studies con- cerned all aspects of estuarine areas, from biological and physical regimes *Research Associate, L.S.U Sea Grant Legal Program: member, Louisaina State Bar Associa- tion. Research for this article sponsored in part by the National Sea Grant Progaram (National Occanic and Atmospheric Administration, U.S. Department of Commerce). **Research Director, Coastal Resources Law, L.S.U, Sea Grant Legal Programs; and Assistant Professor of Law and Marine Science, L.S.U. 1 John M. Armstrong(ed.) Dimiensions of Coastal Zone Management [Ann Arbor, Michigan: Advisory Services Division of the University of Michigan Sea Grant Program] 19 (1972). 2 United States Commission on Marine Science, Engineering and Resources, Our Nation and the Sea (Washington; Government Printing Office), 1-305 (1969) [Ilereinafres Station Report]. Coastal Zone Management Journal, Volume 1, Number 3 Copyright 1974 by Crane, Kuscak & Company, Inc, 306 J.MICHAEL ROBBINS AND MARC J. HERSHMAN Comments through socioeconomic development, and were compiled into the National are subject to decisions made in fulfillment of other requirements of the Act Estuary Study and the National Estuarlue Pollution Study. and this subpart...." The Stration Report and the two studies comiled by the Interior Depart- The purpose herein is to present state approaches which identify the boundaries ment stated the principal concerns regarding coastal environments. These con- of, or describe certain features of, the coastal zone. Many states have not yet cerns and others were combined in the Federal Coastal Zone Management Act enacted legislation dealing specifically with the coastal zone as anticipated under (CZMA). This act provides monetary grants to coastal states to assist in the the CZMA. Therefore, definitions concerning wetlands and other coastal features are development of coastal zone management programs. However, these Federal used. These other definitions are found primarily in dredge-and-full legisla- tion, site-selection laws, and certain zoning provision. grants will not continue unless six mandatory provisions are contained in the A close reading of the definition of coastal zone in the CZMA indicates that state program. This survey is concerned only with the first provision, which three aspects of the coastal zone should be identified in any subsequent state requires that the state program include: "an identification of the boundaries of the coastal zone subject to the [state] management program". The CZMA offers little guidance in defining the coastal zone. Coastal zone is described as: legislation seeking management program development grants. First, there must "The coastal waters (including the lands therein and thereunder) and the be a seaward limitation of the coastal zone not to exceed the outer limits of the influenced by each other and in proximity to the shorelines of the several territorial sea. Second, there should be an identification of coastal formations or waters, to the international boundary between the United States and Canada and, physical features present in the coastal zone. Third, and perhaps most critically, in other areas, seaward to the outer limit of the United States territorial sea. a state should clearly and precisely establish the inland boundary of its coastal zone. It is principally within theis latter context that state legislation defining or The zone extends inland from the shore lines only to the extent necessary to affecting the coastal zone is examined in the following sections. Thirty states, seven United States territories, and the commonwealth of the use of which is by law subject solely to the direction of or which is held Final rules, Coastal Zone Management Program Development Grants, 15 C.F.R. Pt. 960, in trust by the federal government, its officers or agents." N.O.A.A. Dept. of Commerce. 38 F.R. 330-43 (Nov. 29,1973) [Herinafter Final Rules], The act is open as to precise limits because Congress intended that individual This article wad designed to present a wide spectrum of boundary delineation techniques coastal States determine more precisely their own coastal zone boundaries. used in coastal regions. Many state statues have been enacted to handle certain aspects of Federal rules and procedures for qualifying for devepopment grants expressly coastal zone use, including criminal juridictional provisions, submerged lands legislation, state: and water pollution laws. It would have been impossible to locate every state statue which "The definition of the coastal zone in the Act recognizes that no single directly, or indirectly, might have affected the state's particular coastal area. Therefore, we geographic definition will satisfy the management needs of all coastal States, selected state laws enacted in recent years which cober generic coastal zone management because designation of the coastal zone for management purposes must take problems. It is believed that the types of statues researched and the delineation techniques discussed are sufficiently broad to cover the available methods a state might use in defining into account the diverse natural, institutional, and legal characteristics that the boundaries of its coastal zone. There are many ways to classify the boundary delimitation method employed by coastal states. For instatnce, one technique would be to use particular characteristics adopted by states(such as elevation, vegetation, or political boundaries) and group them according to similarities. This would take into consideration all types of state statues which affect the coastal area. Another, the approach used here, is to view the general purpose for which the law was enacted and the boundary delineation technique used for that particular type of 3 United States Department of the Interior, National Estuary Study, reprinted as II.R.Doc. statue. The difficulty of classifying boundary delineation techniques stems from the 374 and 286 (Washington:Government Printing Office) 1970. different types of statues passed by states, each of which affects different types of coastal United States Department of the Interior, National Estuarine Pollution Study (Washing- resources (wetlands, beaches, shorelines). Once all states have a coastal zone bounded under ton:Government Printing Office)1970.. the CZMA, a much more meaningful comparison can be made. Coastal Zone Management Act of 1972,P>L> 92-583,86 Stat 1280,16 U.S.C. 1451 et seq. The seven United States territories include the following islands: American Samoa, Guam, Ibid., 16 U.S.C. 1456 (Supp.II 1972). Johnston Atoll, Midway Islands, Navassa Island, Virgin Islands, and Wake Island. Two other Id., 16 U.S.C. 1455 (Supp.II 1972). political entities are also under partial juridiction of the United States. These are the Id. Panama Canal Zone, which is a territory under United States jurisdiction and control, and Id., 16 U.S.C. 1454 (Supp.111972). the Trust Territory of the Pacific Islands, which is a United Nations trusteeship administered by the United States. 308 J. MICHAEL ROBBINS AND MARC J. HERHMAN Puerto Rico border on the oceans or the Great Lakes. Some began legislative protection of their coastal areas even before passage of the CZMA. Today, nearly every coastal state has enacted statutory provisions to plan, regulate, or manage aspects of their coastal environments. A coatal state matrix (Appendix A) has been prepared identifying types of legislation affecting activities likely to occur in the coastal region. the matrix are selected coastal features which have been defined by various state laws and the method adopted by each state to designate inland and seaward coastal boundaries. Pertinent sections of each state statue which defines or describes the coastal zone appear adlphabetically by state in Appendix B. Seaward Boundaries With the passage of the Submerged Lands Act in 1953, Congress con- firmed,granted, and quitclaimed to each coastal state the land, mineral or other natural resources underlying inland navigable waters, the ocean waters for a certain distance seaward of each state's coastline. Under the terms of that act, the Atlantic and Pacific coastal states were limited to seaward boundaries of 3 geographical miles. Great Lakes states were permitted jurisdiction contermin- ous with the international boundary between the United States and Canada. States in the Gulf of Mexico region were permitted the opportunity to prove a right to 3 leagues. Only Texas, and Florida have been sucessfull in establishing a gulfward boundary at this 3-league mark. However, regardless of the outcome of current Submerged Lands Act litigation relating to seaward boundaries, Congress clearly restricted seaward limits of state coastal zones under the Coastal Zone Management Act to the outer limits of the United States territorial seas. Submerged Lands Act, 67 Stat. 29, 43 U.S.C. 1301-1315 (1970). ID. ID. United States v. Lousiiana, ex al. 363 U.S. 1. 136-140 (1960). ID., at 147-148. 16 U.S.C. 1454 (Supp. II 1972). With regard to the territorial sea, the past policy of the United States has been to limit these seas to a breadth of these nautical miles from the baseline as determined under the 1958 Geneva Convention on the Territoral Sea and the Contiguous Zone, done Aps. 29, 1958, (1964) 2 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205 (in force for U.S. Sept. 10, 1964). However, the United States is likely to extend their territorial seas policy to twelve miles as is indicated from the draft articles submitted for consideration at the forthcoming Third United Nations Conference on the Law of the Sea, Article 1 of that proposal states the following: 1. Each State shall have the right, subject the provisions of Article II, to establish the breadth of its territorial sea within limits of no more than 12 nautical miles, measured in accordance with the provisions of the 1958 Geneva Convention on the Territorial Sea and Contigous Zone. 2. In instances where the breadth of the territorial sea of the State is less than 12 309 All coastal states are free to establish their seaward coastal zone boundaries according to any method they choose However those states which enacted the more comprehensive coastal zone legislation simply extended the seaward boun- dary to the limit of their territorial jurisdiction. Coastal features and Inland Boundaries The second and third aspects of the coastal zone include coastal features and inland boundaries and are covered simultaneously. This is necessary because many states use coastal features in describiing, as well as delimiting, their coastal zones. Also a number of states have statutes which relate to wetlands, marsh- lands, or other types of coastal features, rather than a specific coastal zone. The Stratton Report the Coastal Zone Management Act, and the recently promul- gated rules and procedures for obtaining development grants suggest guidelins for inland delimitation of the coastal zone. In the Stratton Report, it is sugested that the minimum inland boundary could be the landward extent of the tidal waters along the coast. The finall rules and procedures for obtaining grants, promulgated by the Office of Coastal Zone Management, National Oceanic and Atmospheric Administraton, offer several factoers which should be considered by the state when establishing inland coastal zone boundaries. These sugges- tions are not specific and ultimately leave inland boundaries to determina- tion of individual states. E area. Most of these states have enacted legislation For purposes of this discussion, state legisltion has been divided into three subsections: coastal management statues, wetlands statutes, and shorelands , without specifically seeking to develop Comprehensive .72 statutes. Coastal management statuates are found in ten states which define a coastal zone or coastal area. Most of these states have enacted legislation specifically designed to comply with CZMA grant provisions. Wetlands starutes are found in states which have legislation relating to coastal wetlands or marshlands, without specifically seeking to develop comprehensive coastal managemenet programs. shoreland statutes include primarily legislation in Great Lakes states which EE nautical miles, State may establish a fisheries zone contigious to its territorial sea X K Such State may exercise within such a zone in in respect to fisheries as it has in its poriArticles o (if (lie provided, however, that the total breadth of the territorial sea and fisheries zone shall not exceed 12 nautical miles. Such State may exercise within such a zone the same rights in respect to fisheries as it has in its territorial sea. Draft Articles on the Breadth of the Territorial Sea. Straits. and Fisheries Submitted to Sub-Committee II by the United States of America, U.N. Doc A/AC 138/SC.II/O.4 (1971). From Knight, The 1971 International Straits, 51 Ore L. Rev. 729,760 at fn. 6. "Ala. Act 1274-1973: Calif., 3 pub. Res. Code 27000 et seq. (Decring 1973): Dek., 7 Del. C.A. 7001 ct seq. (1972); Fla fla. Stat. Ann 370.0211 et seq (1960); La, La Rev Stat. .CA 7001 72); Fla., Fla. Sidi. Ann e. (19 60); La., La. Rep. Slat. Ann. 51:1361 ; Ore ., Act 608-1971; R.1. Gen laws. Ann. 2-1-13 to 2-1-17 (1965); Tex., Vernon's Ann Civ. Stat. art. 5415e-1 et seq (Suppl. 3, 1973). Stratton Report, P.51 Final Rules 15 C.F.R. 960.11 ZZ 311 310 J. MICHAEL ROBBINS ASHMAN COMMENTS Alabama copies much of its definition from the CZMA and the mississippi regulates certain aspects of their lands bordering on the Great Lakes. None of these have enacted coastal zone management legislation. Washington and Hawaii, wetlands law, Is neither any more precise laws of Florida although included in the final subsections, have legislation which is not and Louisiana. The Alabama coastal area inland boundary is denoted as inland easily categorized . New Jersey, Maine, also are discussed under from the shorelines ... to tile extent necessary to control shorelands... It is probable that Alabama, whose act became effective on February 21, 1974 two subsections because they have more than one statute which designates a specific coastal area for regulation. will experience tile same difficulty in determining the inland boundary for Coastal Management Statutes management purposes met by Louisana and Florida. Eight of ten statutes presented in this subsection have been enacted The new Wetlands Law of Mississippi describes that state's coastal wetlands to accommodate the federal act. They refer to the coastal zone varioulsly as as all publicly owned lands subject to the ebb and flow of the tide and situated below ordinary high tide. Also included as a coastal wetlands are all publicly ..coastal zone," "coastal wetlands," or "coastal area." Several approaches, or owned accretions above tile high water mark. A lengthy section in the act combintions or approaches, have been used to designate inland boundaries of provides exemptions for a large number of interests,, including coastal these coastal regions. wetlands within 5 feet of private property. However, all persons exempt from 24 25 Louisiana and Florida use the extent of maritime or marine influences as the regulatory provisions are required to follow the policies set forth in the the landward boundary in their planning statues. Both identify certain coastal tundary istatutes. Both identify certain coastal Wetlands Law and to advise the approprate State agency of the proposed formations, such as bays, estuaries, and lagoons to illustrate what are considered activity, Similarly, Alabama provides a number of exemptions from its new minimal influences. The planning commissions for both state said there was law some difficulty involved in demiting an area which was so vaguely defined. .26 Texas passed a Coastal Public Lands Management Act which defines its coastal area as comprimisingf all counties having any tidewater shoreline, including La Rev. Stat. Ann 51:1361. the bed and waters of all counties having any tidewater shoreline, including fla Stat. Ann 370.0211 Louisiana created a two-year advisory commission on Coastal and Marine Resourceso the bed and waters of the Gulf of Mexico within Texas jurisdiction. (LACCMR) TO prepare recommendations for a comprehensive coastal management plan The Coastal Zone Act of Oregon uses coastal counties to designate the These recommendations were completed in September 1973 and are embodied in the report entitled Lousiana Wetlands Prospectors. coastal zone, which is divided into four districts. Oregon and California. During the Commissions first meetings, the impracticality of settling and defining boundaries of selected Census Enumeration Districts. Defined in this way, Florida's coastalng zone has an inland boudary varying from two to twenty-five miles from the coastline, with simply "marine influences became readily apparent. LACCMR originally considered as the the seaward boundary being the limit of Florida's territorial sea. inland boundary U.S. 190, an east-west highway that nicely divided the entire coastal region B. Johnson. The Role of State Government in Coastal Management Mapping-Florida isiana from the rest of the state. However, it was discovered that some of these areas Photogramantly,Potomac Division ( Fall Church, Virginia: American Society of Photo- grammetry, 1972), pp 40-41 were not coastal. Also, by dividing parshies in such a manner there became evident likelihood of jurisdicitional and enforcement problems. LACCMR also recognized that many activities arising distinctly beyond the coastal zone in other areas of the state could have a direct and significant impact on the coastal zone. The Commissioon finally resolved the problem by recommending a twy approach. The coastal zone for planning problems by recommending a two-fold boundary approach. The Coastal zone for planning 29 Coastal Area Act Ala. Act 1274 of 1973 Miss Code Ann. 49-27-1 et seq. Coastal Area Act 3,Ala Act 1274 of 1973. Id. 11 Miss Code Ann 49-27-5 rposes would consist of twenty-six coastal parishes in within one or more of several Id coastal features or influences could be tracted. These coastal parishes constitute approxi- Coastal Area Act 4. Ala Act1274of 1973 mate, one-half of the total number of parishes in the state. The jurisdiction of any coastal Tex., vernon's Ann Civ.Stat, art.5415e-1es seq (Supp.3,1973) zone management commission (LACCMR) suggested creating a single Coastal Reveures Id, art 5415c-4. Commission) was recommended to be statewide for all uses of lands and waters outside the an area defies delineation. Council was assigned the arduous task of delimiting maritime Coastal Zone Act, Ore. Act 608 of 1971 coastal zone which might measurebly alter or adverdely alfect the coastal zone. Floridas Coastal Coordinating Council,directed by Mr. Bruce Johnson found that such an area defies delineation. This Xouncil was assigned the arduous task of delimiting maritime Influences along Florida's hundreds or miles of Atlantic and Gulf coasts. After discarding use of salt-water flow, the Council found that such physical terms as drainage basins, flood zones. ancient shorelines, salt-water-fresh-water interface, or any other strictly physical Id., 4 consideration did not include compatible sociocconomic data. Starting that such data was an Calif.. 3 . Res, Code 27000 (Deering 1973) absolute neccessity, it was decieded to use physical characteristics in combination wit 313 312 MICHAEL ROBBINS AND MARIAN also limits areas which might otherwise qualify as wetlands to those areas whose both define the eastern or landward boundaries of their coastal zones as the crest surface is at or below an elevation of I foot above local extreme high water." or highest elevation of the coastal mountain range. Both definitions have Several other states use a similar vegetation-elevation method to define their exceptions which designate a slightly different eastern boundary in three areas 40 but none affect the substantive application of the two laws. California wetlands, although most do not use the sixty-one flora species and 1-foot elevation of Connecticut. These slates, with the number of plants species and has also included a special interim permit area which differs from its coastal elevation stated inparentheses are: Georgia (three species, 5.6 feet above mean zone. The California permit area is that portion of the coastal zone lying tide level)," New Hamphire (seventeen species 3.5 feet above local mean high between tile seaward limit of state jurisdiction and yards from tide), New Jersey (sixteen species, I foot above local extreme high water).54 the line of mean high tide 42 Although there are certain exclusions, the law and Virginia (three species, 1.5 times the mean tide range at tile site in question Specifically includes in the permit area tidal and submerged lands, beaches, and measured from mean low tide).5 lots immediately adjacent to the inland extent of any beach, or of tile mean high North Carolina identifies its marshlands on tile basis of ten vegetation tide line where there is no beach.43 species, while New York identifies its tidal wetlands" on the basis of physical Delaware's Coastal Zone Act 44 and New Jersey's Coastal Area Facility features: banks, bogs, salt marsh,swamps, meadows, flats, or lowlands subject to Review Act 45 use a landward boundary described alon a highway and roads Review Act landward boundary described along a system. Rhode Island which was the first state to make application for federal Three states use a linear approach in determining the inland extent of their funds under CZMA,46 passed a Coastal Management Act in 1971. 47 This act coastal region Rhode Island"' limits its coastal wetlands to contiguous. upland created an agency with planning and management powers over development or operations within, above, or beneath tdal water below the mean high water are used to determine which iands are considered coastal wetlands. Rhude Island mark, extending over land to areas necessary to conduct effective resources legislation also defines an intertidal salt marsh as,prima facie, an area supporting management programs. 48 New Jersey and Rhode Island have additional legisla- one or more of nine named varieties of saline vegetation. tion pertaining to their wetlands, which are dciscussed below. Another state using a linear approach is Washington. Washington considers as wetland all lands within 200 feet in all directions from the ordinary high Wetlands Statutes deltas, and flood plains) which might be located at greater distances from Many coastal states, which have not yet enacted coastal zone managment ordinary high water are also defined as wetlands ts coastal statutes, do not have legislation pertaining to dredge-and-fill and other activities that Hawaii also uses linear measurements to delimit boundaries in its coastal might occur in, or endanger, coastal wetlands and similar coastas features.' zone, both inland and seaward. The approaches used by Hawaii and Washing- Practically all of these use vegitation as one factor in delimiting the landward ton are treated more throughly in the shorelands subsection below. One of the most comprehensive definitions of wetlands is that contained in Tidal Wetlands Act49 of Connecticut. This definition 50 lists sixty-one 51Id, species of vegetation, including their popular and scientific names. Connecticut 52Ga Code Ann 45-136 er seq (1957) Coastal Zone Act, �4, Ore. Act 608-19. Res. Code 27000 (Deering 53N.H. Rev Star. Ann. 483-A:1-a et seq. (Supp. 1972) 1973). 54 Coastal Area facility Review Act, N.J. Act 1429 of 1973 " Calif., 3 Pub 27104 (Deering 1973) 55 Va Code Ann. 62.1-13.1 et seq (Supp.1970). 46 5 Coastal Zone Management 7, February 13,1974,at 1. 56 N.C. Gen Stat 113-229 (1966) is incorporated by referenc into the Wetlands Protec- 47 R.I. Gen Laws Ann. 46-23-1 et seq. (Supp. 1972). tion Act, N.C. Gen Stat 113-230 (1966) 48 Id. 46-23-6B 57 N.Y. Env. Conserv. Law 25-0101 et seq. (Mc Kinney 1973). 49 Conn. Gen. Stat.Ann 22a-28 et seq. (1972). 58 R.I. Gen Laws Ann 2-1-13 to 2-1-17 (1965) 50 Id 22a-29 59 Id. 2-1-14 Conn. Ge2 60 Wash. Rev.Code Ann. 90.58.010 et seq (Supp. 1971) 61 Id. 62 Hawaii Rev.Stat. 25-05et seq. (1950) as amended by Act 107 of 1973 63 fd., 205-31 and 33 314 J. MICHAEL ROBBINS AND MARC J. HERS COMMENTS 315 Maine, as discussed above, also authorizes municipalities to zone land areas Massachussetts,64 Maryland 65 and Maine66 use other criteria to define the extent of their wetlands. Massachusetts uses physical coastal features as well as within a specified distance of a body of water. In Maine's case this includes tidal flow to describe its coastal wetlands." Maine and Maryland use only tidal shoreland areaas within 250 feet of feet of water mark of any pond, action or tidal flow to describe their wetlands. 68 No physical features are used river, or salt-water body.78 in either of the two state statutes. Washington and Hawaii, as noted above, are also unique in their manner of However, Maryland" treats state wetlands differently from controlling coastal activities affecting shorelines. Washington manages its shore- Private wetlands 70 The two differ primarily in ownership, lines through the 1971 Shoreline Management Act.' A lengthy definition is with the aadded requirements that private wetlands must be able to support some provided in that statue. but basically shorelines means all water areas of the form of aquatic growth.71 state, their associated wetlands, and the lands underlying them. Excepted from coverage are shorelines of state-wide significance, shorelines on stream segments Shorelands Statues upstream of a point where average flow is less than 20 feet per second, and Only Michigan, Minnesota, and Wisconsin of the eightr states which border on shorelines and wetlands associated with lakes of less than 20 acres.80 The protected shoreline area icludes all land area between tile the Great Lakes have implmented legislation designed to protect their shore- shoreline and the shoreline setback line. Shoreline is defined as the upper lands, whether lake, pond, flowage, river, or stream, from overdevelopment or reaches of tile normal wash of waves or the upper lines of debris left by the other Significant activity. All three employ a shorelands definition that includes normal wash of waves. The setback line to be established by file appropriate all lands within a stated distance inland from the shore of a water bodv state or country agency, is to run from 20 to 40 feet inland from, and parallel to, Shorelands as defined by the Michigan Shorelands Protection and Manage the shoreline at a horizontal plane. ment Act72 include lands within 1,000 feet of the high water mark of aGreat Lake or connecting waterway. However, several definitions 73 in that act must be One provision in the Hawaii act prohibits certain activities within the setback read together to understand clearly the area intended for coverage. area and the coastal waters immediately adjacent thereto. More specifically, Minnesota74 and Wisconsin75 use practically identical languafe in defining their respective shorelands. Both define their shorelands as land located within the new Act disallows removal of any beach materials within 1000 feet seaward 1,000 feet of the high water mark of a lake, pond, or flowage and land of the setback area or in ocean water 30 or less feet in depth. The act seems to within 300 feet of a river or stream. Wisconsin's Shoreland Protection Act76 define an area possissing inland and seaward boundaries, both of which are adds the provision that if the navigable water is a glacial pothole lake, the defined generally according to linear distances. One new element introduced by distance shall be measured from the high water mark thereof.77 the Hawaiian legislation is the use of a certain water depth (30 feet or less) to 64 Mass Ann. Laws ch. 130 105 (1972) designate parts of the seaward boundary limitations83 65 Md . Ann.Code art. 66C 718 et seq. (1970) 66Mc. Rev.Stat. Ann tit. 12. 4701et seq. (1964) This article has described boundary delineation techniques used by coastal 67 Mass. Ann. Lawsch. 130 105 (1972) and Great Lakes states, territories, and possessions to define protected areas 68 Me. Rev.Stat. Ann tit 12 4701 (1964): Md. Ann Code art.66C 719 (1970). within the coastal and shoreland regions. As states continue the refinement or 69 Md. Ann Code art. 66C 718 et seq. (1970). development of coastal or shoreland management programs, previous efforts at 70 Id 719 boundary delineation may be useful in future efforts at defining the coastal 71 Id. zone. 78 Me. Rev. Stat Ann tit.12 4811 (Supp. 4,1973 79 Wash. Rev. Code Ann 90.58.010 et seq (Supp. 1971). 80 Id. 90.58.030 81 Hawaii Rev. Stat. 205-31 (1950) as amended by Ha. Act 107 of 1973 82 Id., 205-33 83 Id. NOAA COASTAL SEIRV.CES CTR LIBRARY 3 6668 14110318 6