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Coastal Zone Management Act

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Title: Coastal Zone Management Act


1
Coastal Zone Management Act Federal Consistency
  • National Oceanic and Atmospheric Administration
    (NOAA)
  • Office of Ocean and Coastal Resource Management
    (OCRM)
  • Coastal Services Center (CSC)
  • www.coastalmanagement.noaa.gov/welcome.html
  • www.coastalmanagement.noaa.gov/consistency/welcome
    .html

2
Federal Consistency Training
  • U.S. Coast Guard / Norfolk, VA / May 2014
  • Why are we here?
  • Provide a basic understanding of the procedures
    and principles of the federal consistency rules
  • Discuss how to identify and analyze federal
    consistency issues
  • Answer your specific questions

3
Introductions
  • Kerry Kehoe
  • J.D., University of Baltimore
  • Chesapeake Bay Foundation
  • Coastal States Organization
  • MD Dept. of Natural Resources
  • NOAA, OCRM and CSC

4
Introductions
  • Jackie Rolleri
  • J.D., Roger Williams University School of Law
  • Master of Marine Affairs, University of Rhode
    Island
  • Presidential Mgmt. Fellow
  • NOAA, OCRM and CSC

5
Introductions
  • Who Are You?
  • Name
  • Office or program
  • Experience with federal consistency
  • A particular question that you might have

6
Introductions
  • Office of Ocean and Coastal Resource Management
  • Administers the CZMA
  • Approves state programs and program changes
  • Awards CZMA grants
  • Evaluates state CZMA programs
  • Provides technical assistance
  • Oversees federal consistency compliance
  • Provides mediation assistance
  • Contributes expertise within national policy
    discussions

7
Todays Agenda
  • The Quiz
  • Overview of CZMA and federal consistency
  • What is federal consistency?
  • What are the procedures for federal
    consistency?
  • Federal consistency analyses

8
Before We Begin
  • Dont be intimidated by the seeming complexity of
    federal consistency
  • Words and phrases may have a unique meaning
    within the context of the CZMA. For example
  • enforceable policies
  • consistent to the maximum extent practicable
  • Stop us and ask questions
  • Tell us if we need to speak up!

9
The Quiz
  • If a state objects to a federal agency activity,
    the federal agency can appeal to the Secretary of
    Commerce
  • True or False?

10
The Quiz
  • The broad scope of state CZMA consistency review
    authority enables states to establish enforceable
    policies to manage activities in federal waters
  • True or False?

11
The Quiz
  • Unlike federal license or permit activities,
    federal agency activities need not be fully
    consistent with state enforceable policies if
    they are consistent to the maximum extent
    practicable
  • True or False?

12
The Quiz
  • States are required to list federal licenses and
    permits for activities they seek to review but
    not projects undertaken by federal agencies
  • True or False?

13
The Quiz
  • Activities occurring on federal lands and waters
    are not subject to CZMA consistency review
  • True or False?

14
The Quiz
  • A federal agency may submit a consistency
    determination in any manner it chooses so long as
    the required information is included
  • True or False?

15
The Quiz
  • A state conditional concurrence may require that
    a federally licensed project undergo additional
    federal consistency review if the state disagrees
    with the determination of the authorizing federal
    agency that the conditions have been met
  • True or False?

16
The Quiz
  • A federal agency and a state can agree to shorten
    or lengthen the consistency review timeframe for
    a federal agency activity
  • True or False?

17
The Quiz
  • A state and federal permit applicant can agree to
    extend the six-month review period
  • True or False?

18
The Quiz
  • A state has six months to review activities
    undertaken by a private contractor for a federal
    agency activity
  • True or False?

19
Coastal Zone Management Act of 1972
  • There are three primary objectives
  • Balances resource protection with economic,
    recreational, and cultural needs
  • Emphasizes the primacy of state decisions
  • Encourages participation by all levels of
    government, from local to federal, as well as
    participation by the public

20
State and Territorial CZM Programs
Federally Approved - 34
Not Participating - 1
21
CZMA Incentives for Participation
  • Voluntary
  • Two incentives
  • Federal financial assistance
  • Federal consistency review authority

22
CZMA Benefits
  • Powerful tool for states
  • Applies state policies to federal actions
  • No geographical or categorical limitations
  • Provides a mechanism for addressing effects
  • Fosters early consultation to avoid costly
    last-minute changes
  • State review with public input can build support
  • Results in state concurrence for 95 percent of
    reviews

23
CZMA National Interest Balance
  • States may review, not manage
  • Only applies if there are effects and enforceable
    policies
  • NOAA approval required
  • Federal Agencies
  • Effects determination made by federal agencies
  • Federal agencies may proceed over objections
  • Presidential exemption available
  • Federal License and Permit Applicants
  • Secretary of Commerce can override state
    objections

24
What Is Federal Consistency?
  • Federal actions, in or outside the coastal zone,
    that affect any land or water use or natural
    resource of a states coastal zone must be
    consistent with the enforceable policies of state
    CZMA programs
  • See CZMA 307 (16 U.S.C. 1456)

25
Federal Action Types
  • Is it a federal action?
  • Federal agency activities and development
    projects
  • CZMA 307(c)(1), (2), 15 C.F.R. 930, subpart C
  • Federal licenses or permits (non-federal
    applicants)
  • CZMA 307(c)(3)(A), 15 C.F.R. 930, subpart D
  • Outer Continental Shelf plans
  • CZMA 307(c)(3)(B), 15 C.F.R. 930, subpart E
  • Federal financial assistance to state or local
    agencies
  • CZMA 307(d), 15 C.F.R. 930, subpart F

26
Federal Actions and Effects
  • Federal Agency
  • Activities

Federal Authorization Activities
Outer Continental Shelf Oil and Gas Plans
27
Coastal Effects
  • Any reasonably foreseeable effect on any coastal
    use or resource of the state

15 C.F.R. 930.11(g)
28
Coastal Effects
  • Reasonably foreseeable
  • Direct
  • Indirect
  • Cumulative
  • Secondary
  • May be adverse or beneficial
  • Reasonably foreseeable ? Likely
  • Note A finding of no effects under other federal
    statutes does not mean that there are no CZMA
    coastal effects

29
Coastal Uses and Resources
  • Uses Public access, recreation, fishing,
    historic, cultural, development, hazards
    management, marinas, and resource creation or
    restoration
  • Resources Air, wetlands and water bodies,
    aquifers, aquatic vegetation, plants, animals,
    land, minerals, and coastal resources of national
    significance
  • Can include uses and resources outside of the
    coastal zone

30
Enforceable Policies
  • Enforceable policies are the key to implementing
    federal consistency
  • An objection can only be based on approved
    enforceable policies
  • The CZMA term enforceable policy has a unique
    meaning

31
Enforceable Policies Three Elements
  • Enforceable policies must
  • Be based on a legally binding state authority
    (enforceable mechanism)
  • Cannot be merely a directive to develop
    regulations
  • Contain a definable standard
  • Be approved by NOAA
  • Policies cannot incorporate unapproved
    policies by reference

32
Enforceable Policies
  • Enforceable policies must not
  • Be preempted by federal law
  • Discriminate against a particular group or
    activity
  • Assert jurisdiction over federal agencies, lands
    or waters
  • Be superseded by subsequent state law

33
Questions?
34
Federal Actions Listed and Unlisted
  • Do states have to identify (list) activities to
    be reviewed?
  • If performed by a federal agency (Subpart C) ? No
  • If authorized by a federal agency (Subpart D) ?
    Yes
  • Can states review unlisted federal
    authorizations?
  • With OCRM approval on a case-by-case basis
    (15 C.F.R. 930.54)

35
Federal Actions Outside Coastal Zone
  • Can states review federal actions outside the
    coastal zone?
  • Yes
  • If conducted by a federal agency and effects
    (listing not required)
  • If authorized by a federal agency
  • state must have an approved geographic location
    description (GLD) of listed activities occurring
    outside of the coastal zone, or
  • request NOAA approval to review the unlisted
    activity

36
Federal Actions On Excluded Lands
  • Can states review activities on excluded
    federal lands?
  • CZMA excludes all federal lands and waters from
    the coastal zone
  • States authorized to review, not manage,
    activities on federal lands and waters
  • Federal consistency still applies to activities
    on excluded federal lands if effects to coastal
    resources or uses of the state

37
Federal Actions Interstate Reviews
Lake Gaston Dispute Virginia and North Carolina
  • City of Virginia Beach, Virginia, needs water
  • Proposed 90-mile pipeline from Lake Gaston
  • Project wholly in Virginia
  • Federal Energy Regulatory Commission
    authorization needed for water withdrawal from
    lake and Roanoke River, which flows into North
    Carolina (NC)

38
Federal Actions Interstate Reviews
Lake Gaston Dispute Virginia and North Carolina
  • NC CZMA review because effects in NC striped
    bass
  • NC objects under CZMA
  • City wins appeal to Secretary of Commerce
  • National interest outweighs effects and
  • No reasonable alternative available

39
Federal Actions Interstate Effects
  • Activities Conducted by Federal Agencies
  • If effects, subject to review regardless of
    location
  • Activities Authorized by a Federal Agency
  • Only if state has NOAA approved
  • Listing of federally authorized actions found to
    have interstate effects and
  • A geographic description of where activities with
    interstate effects are found
  • Note Subpart I authority needed to review
    unlisted activities with interstate effects

40
Pop Quiz!
  • Do activities performed by federal agencies have
    to be listed by a state in order to be reviewed?
  • Nobut a state has the option of listing
    activities undertaken by federal agencies to
    identify the types of activities the state
    expects to have coastal effects

41
Pop Quiz!
  • Do activities authorized by federal agencies
    through the issuance of licenses or permits have
    to be listed by a state in order to be reviewed?
  • Yes

42
Pop Quiz!
  • If a state has not listed a federally authorized
    activity, is there a way that a state can still
    review the activity?
  • Yes by submitting an unlisted activity review
    request to OCRM

43
Remember to Ask
  • For activities conducted by federal agencies
  • Are there reasonably foreseeable coastal
    effects?
  • For licenses and permits authorized by federal
    agencies
  • Is the activity listed?
  • If not listed, what does a state need to do?
  • Answer Submit request within 30 days of notice
    and show reasonably foreseeable coastal effects
  • Okay, lets see how this works

44
CZMA 307(c)(3)(A) License or Permit Map
M.A.
R.I.
State Waters Mass.
State Waters Rhode Island
STATE CZ BOUNDARY 3 MILES
FEDERAL WATERS
FEDERAL WATERS
All Reviews are if Rhode Island is Seeking
Review (Same scenario would apply on land)
45
Coastal Uses and Resources Analysis
  • Application to National Marine Fisheries Service
    (NMFS) for Exempted Fishing Permit for U.S.
    Exclusive Economic Zone 50 to 200 miles offshore
  • What is the federal action?
  • What subpart applies?
  • Unlisted activity
  • What does state need to do?

46
Coastal Uses and Resources Analysis
  • State submits unlisted activity request
  • Assert effects to leatherback turtles
  • Turtles are a Highly Migratory Species (HMS)
  • By what measure are these HMS resources of the
    state?
  • Most do not enter state waters
  • One boat for four runs
  • Endangered Species Act authorization limits take
    to one mortality

47
Coastal Uses and Resources Analysis
  • Result
  • Unlisted activity request denied
  • State did not meet burden of showing reasonably
    foreseeable effects to resources of the state
  • In federal waters, must show impacts affecting
    resources or uses of the state
  • What might have made for a different result?

48
Delawares GLD for renewable energy activities in
federal waters was reduced from the 200 nautical
miles originally proposed to 24 nautical miles
49
Enforceable Policies Preemption
  • Military training flights
  • Low level flights in North Carolina
  • Impacts to wildlife and public enjoyment?
  • State proposes noise and minimum altitude
    policies to apply through federal consistency
  • NOAA denies state request to incorporate
    enforceable policies
  • States preempted from regulating aircraft in
    flight

50
Enforceable Policies Preemption
  • Liquefied natural gas (LNG) siting
  • Energy Policy Act of 2005 Amends the Natural
    Gas Act, preempting regulation of LNG siting
  • New Jersey then submits revised LNG siting
    policies to NOAA
  • NOAA denies New Jerseys program change request
  • Previously approved LNG policies are also now
    non-enforceable

51
Enforceable Policies Discriminatory
  • Whats wrong?
  • No electrical transmission facilities may be
    sited on the waterfront unless the source is from
    renewable energy
  • Effects are the same regardless of the source
  • Also need to consider regional and national
    interests

52
Enforceable Policies Program Changes
  • Enforceable policies may no longer be effective
    if superseded by changes in statutes,
    regulations, or case law
  • Programs and enforceable policies need to be kept
    up-to-date
  • Program and policy changes need NOAA approval

53
Questions?
54
Procedures Subparts C and D
Activities Undertaken by a Federal Agency Federal Licenses and Permits
Submission of a consistency determination (CD) Submission of a consistency certification (CC)
Submitted at least 90 days before final action Submitted with or after license or permit application
State has 60 (plus 15) days to review State has 6 months to review
Review starts when CD received (if complete) Review starts when CC and necessary data and information submitted
Consistent to the maximum extent practicable Fully consistent
Federal agency can proceed over objection If objection, federal agency may not authorize the activity applicant may appeal state objection to Secretary of Commerce
State can bring suit in court to enforce objection and/or seek mediation Either or both parties can bring suit in court only after a decision issued by the Secretary of Commerce on appeal by the license or permit applicant
55
Procedures Subpart C
  • Federal agency activities
  • Federal agency determines coastal effects
  • Agency finds either
  • No effects ? no further action
  • No effects ? submits negative determination
  • Effects ? submits consistency determination (CD)

56
Procedures Subpart C No Effects
  • A no effects and no further action finding is for
    activities for which (A) there are no effects,
    and
  • (B) a negative determination is not required

57
Procedures Subpart C No Effects
  • A negative determination is required to be
    submitted when there is no coastal effect and
  • The state has listed the activity
  • A CD was previously issued for the type of
    activity or
  • The Federal agency conducted a thorough analysis
    of effects and found none

58
Procedures Subpart C - CD
  • If coastal effects, consistency determinations
    shall be
  • Based on --
  • An evaluation of whether the proposed activity is
    consistent to the maximum extent practicable with
    the states enforceable policies
  • And include --
  • A detailed description of the activity and its
    associated facilities
  • Their coastal effects
  • Data and information sufficient to support the
    decision

59
Procedures Subpart C
  • Consistency or negative determination and
    supporting information submitted to state 90 days
    before activity begins
  • Proposed action is the subject of federal
    consistency review, NOT all related actions
    (e.g., National Environmental Policy Act,
    Endangered Species Act, federal permits, and
    others).

60
Procedures Subpart C
  • Activity must be
  • consistent to the maximum extent practicable
    (CMEP)
  • State has 60 (15) days to review
  • State may take the following actions
  • Concur
  • Object
  • Federal agency may proceed over state objection
    if CMEP
  • State may
  • Request mediation
  • File suit to litigate dispute

61
Subpart C CMEP
  • Consistent to the maximum extent practicable
  • Fully consistent unless legally prohibited
    (substantively or procedurally)
  • Federal agency can proceed over state objection
    if CMEP (either fully consistent or legally
    prohibited)
  • What if?
  • Lack of funding
  • Activity is classified
  • There are exigent circumstances

62
Subpart C CMEP
  • Navy Homeport Dredging San Diego Channel
  • U.S.S. Stennis Carrier Group
  • CCC/Navy Agreement -- Place sand on beaches
  • Live ordnance found!
  • Sift sand or dump offshore?
  • Navy, state, OCRM discussions
  • Litigation injunction / Navy not CMEP
  • Settlement Navy agrees to find other source of
    sand for beach renourishment

63
Subpart C CMEP
  • National Marine Fisheries Service (NMFS)
  • approval of fishery management plan (FMP)
  • State objects or issues conditional concurrence
  • Wants changes in size limit, gear restrictions,
    seasons
  • NMFS proceeds without complying
  • Why?
  • NMFS is CMEP
  • Administrative record in this instance does not
    support compliance

64
Questions?
65
Procedures Subpart D
  • Federal License or Permit Activities
  • Non-federal applicants
  • Listed or unlisted in state program
  • Inside or outside coastal zone

66
Procedures Subpart D
  • Consistency certification to state
  • Start of the six-month review
  • Begins when there is a federal application and
    state receives consistency certification and
    necessary data and information
  • Review does not start the date state determines
    complete
  • Necessary data and information
  • Is only that info needed to start review
  • Must be specifically identified and approved by
    NOAA as such

67
Procedures Subpart D
  • Running of the six-month review
  • State needs to pay close attention
  • Start of six-month period
  • 30-day completeness notice
  • End date for six-month review
  • Six-month period cannot be extended
  • It can only be stayed by written agreement
    between state and applicant
  • Needs to meet exact NOAA specifications

68
Procedures Subpart D
  • State decision at end of six-month review
  • State may concur, conditionally concur, or object
  • If state objection, federal agency cannot approve
  • Applicant may appeal objection to Secretary of
    Commerce
  • If no decision by state, concurrence is assumed

69
Procedures Subpart E
  • Outer Continental Shelf Lands Act (OCSLA)
  • CZMA specifically provides for state review
  • Rules on CZMA and OCSLA coordination
  • Subpart C lease sales
  • Subpart D exploration, development, and
    production plans and all licenses or permits

70
Procedures Subpart F
  • Financial assistance activities
  • Only federal financial assistance to state and
    local agencies
  • Other federal financial assistance may be subject
    to Subpart C residual category
  • Types of assistance should be listed
  • Submission to state under Executive Order 12372
    for intergovernmental reviews or state
    clearinghouse
  • Timeframe not specified

71
Procedures Subpart G Mediation
  • Formal mediation by the Office of the Secretary
    of Commerce
  • OCRM mediation (less formal process, as
    determined by the parties)
  • Voluntary participation
  • Non-binding

72
Subpart G Mediation Example
  • Navy radar testing facility
  • High frequency radar emissions
  • Health and marine mammal and bird concerns
  • Negative determination disputed
  • OCRM mediation
  • Technical review panel
  • OCRM report to state and Navy
  • Navy agrees with all but one recommendation
  • State is satisfied resolved

73
Case Study California and Navy Sonar
  • Complex integrated training exercise needed for
    strike force certification
  • Anti-submarine warfare
  • Mid-frequency active sonar
  • NOAA NMFS Marine Mammal Protection Act (MMPA)
    mitigation for whales
  • Consistency determination (CD) to California for
    exercise, but no effects from sonar to whales
    (behavioral modifications from sonar do not rise
    to coastal effects)

74
Case Study California and Navy Sonar
  • California Coastal Commission CZMA Review
  • State disagrees with Navys negative
    determination
  • Believes there will be coastal effects to whales
  • Conditionally concurs with various mitigation
    conditions

75
Case Study California and Navy Sonar
  • Suite of potential issues and alternatives
  • Geographic scope
  • Coastal resources
  • Enforceable policies
  • Consistent to the maximum extent practicable
  • Federal preemption (MMPA)

76
Case Study California and Navy Sonar
  • Outcomes
  • OCRM mediation and litigation
  • CZMA Presidential exemption
  • The rest of the story
  • National Environmental Policy Act (NEPA) and
    Council for Environmental Quality Alternative
    Arrangements
  • Ninth Circuit finds for California on NEPA issue
  • Supreme Court decision overturns Ninth Circuit

77
Subpart H Appeals
  • Only for Subpart D, E or F objections
  • No appeals by federal agencies or third parties
  • De novo review
  • Override decision based on CZMA appeal criteria,
    based on the balance of CZMA objectives or
    national security, not whether state made
    correct decision
  • If overridden
  • Federal agency may approve or fund activity
  • Build record in anticipation of appeals

78
Subpart H Appeals Criteria
  • Consistent with the objectives of the act
  • Furthers the national interest in a significant
    or substantial manner
  • National interest outweighs adverse coastal
    effects
  • No reasonable alternative available that would
    permit the activity to go forward in a
    consistent manner
  • Necessary in the interest of national security

79
Summary of Secretarial Appeals
  • CZMA Secretarial appeal decisions 44 (January
    2013)
  • 14/44 OCS oil and gas plans
  • 2/44 Natural gas pipelines
  • 3/44 Liquefied natural gas terminals or
    pipelines
  • Appeals dismissed or state objections overridden
    on procedural grounds 33
  • Appeals withdrawn, settled, or both 64
  • Total number of appeals filed 141

80
Questions?
81
Ocean Planning and Management
  • Federal consistency
  • State ocean planning and management
  • Coastal and marine spatial (CMS) plans
  • Review of offshore regional projects

82
State Ocean Plans
  • State ocean plans
  • (e.g., Massachusetts, Oregon, and Rhode Island)
  • Some states have GLDs
  • (e.g., Connecticut, Delaware, and Rhode Island)

83
State Ocean Plans
  • Even with a NOAA-approved ocean plan, to review
    activities in federal waters, states need the
    following things
  • Enforceable policies
  • Cannot assert jurisdiction over federal agencies
    or waters
  • A geographic location description for activities
    to be reviewed in contiguous federal waters

84
Geographic Location Description
85
  • Connecticut proposed a GLD for OCSLA offshore
    renewable energy projects effects analysis not
    adequate
  • The GLD was reduced and approved for certain
    fishing areas based on NMFS statistical areas and
    data

86
Regional CMS Plans
  • Ocean Policy Executive Order 13547
  • Established ocean policy and National Ocean
    Council (NOC)
  • States play a role in developing regional CMS
    Plans

87
Regional CMS Plans
  • Federal consistency can ensure consistency
    between CMPs and regional CMS plans
  • Federal consistency administrative efficiencies
    can streamline reviews in these ways
  • Creating thresholds for reviews
  • Using general consistency determinations for
    multiple occurrences of an action
  • Eliminating certain actions from reviews (e.g.,
    beneficial and de minimis effects)

88
Regional CMS Plans
  • Note Regional CMS plans do not change the
    interstate consistency review process
  • However, states may find no need to review a
    federal action in another state because it is
    compatible with the regional CMS plan

89
Atlantic Wind Connection (AWC)
  • Proposed regional electrical transmission project
  • Designed to connect offshore wind power projects
    to the grid and reduce transmission congestion
  • 800-mile right-of-way installed in five phases
  • Offshore five Atlantic states

90
Atlantic Wind Connection (AWC)
  • Multi-State, Multi-Phase, Multi-Year Project
  • How best to do federal consistency?
  • AWC initially provided consistency certification
    for entire project
  • Each subsequent phase requires Bureau of Ocean
    Energy authorization and can be separately
    reviewed
  • Supplemental consistency reviews also available
    if major amendments or significant changes

91
Questions?
92
How Do I Learn More?
  • NOAA federal consistency website
  • www.coastalmanagement.noaa.gov/consistency/welcome
    .html
  • CZMA
  • Federal consistency regulations, 15 C.F.R. Part
    930
  • Preambles to 2000 and 2006 regulations
  • Federal consistency overview
  • State federal consistency Lists
  • Federal consistency appeals
  • Call Us!

93
National Interest Team
  • David Kaiser, Senior Policy Analyst
  • David.Kaiser_at_noaa.gov (603) 862-2719
  • Kerry Kehoe, Federal Consistency Specialist
  • Kerry.Kehoe_at_noaa.gov (301) 563-1151
  • Jackie Rolleri, Coastal Management Specialist
  • Jackie.Rolleri_at_noaa.gov (301) 563-1179
  • NOAA Office of Ocean and Coastal Resource
    Management and Coastal Services Center
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