1 Coastal Zone Management Act Federal Consistency National Oceanic and Atmospheric Administration...

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Coastal Zone Management ActFederal 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

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U.S. Coast Guard / Oakland, CA / June 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

Federal Consistency Training

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Introductions

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

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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

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

Introductions

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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

Introductions

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• The Quiz• Overview of CZMA and federal consistency

What is federal consistency? What are the procedures for federal consistency? Federal consistency analyses

Today’s Agenda

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• Don’t 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!

Before We Begin

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1. If a state objects to a federal agency activity, the federal agency can appeal to the Secretary of Commerce

True or False?

The Quiz

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2. The broad scope of state CZMA consistency review authority enables states to establish enforceable policies to manage activities in federal waters

True or False?

The Quiz

3. 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?

The Quiz

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4. 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?

The Quiz

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5. Activities occurring on federal lands and waters are not subject to CZMA consistency review

True or False?

The Quiz

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6. A federal agency may submit a consistency determination in any manner it chooses so long as the required information is included

True or False?

The Quiz

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7. 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?

The Quiz

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8. A federal agency and a state can agree to shorten or lengthen the consistency review timeframe for a federal agency activity

True or False?

The Quiz

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9. A state and federal permit applicant can agree to extend the six-month review period

True or False?

The Quiz

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10. A state has six months to review activities undertaken by a private contractor for a federal agency activity

True or False?

The Quiz

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Coastal Zone Management Act of 1972

There are three primary objectives:1.Balances resource protection with economic, recreational, and cultural needs2.Emphasizes the primacy of state decisions3.Encourages participation by all levels of government, from local to federal, as well as participation by the public

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Hawaii

GuamAmerican Samoa

N. MarianaIslands

Alaska

Puerto Rico

U.S. Virgin IslandsFederally Approved - 34

Not Participating - 1

State and Territorial CZM Programs

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• Voluntary• Two incentives:

Federal financial assistanceFederal consistency review authority

CZMA: Incentives for Participation

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Federal actions, in or outside the coastal zone, that affect any land or water use or natural resource of a

state’s coastal zone must be consistent with the enforceable policies of state CZMA programs

See CZMA § 307 (16 U.S.C. § 1456)

What Is “Federal Consistency?”

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Remember to Ask

1. Is there a federal action?

2. Are there reasonably foreseeable coastal effects?

3. Is the federal action consistent with the enforceable policies?

Is there 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 plansCZMA § 307(c)(3)(B), 15 C.F.R. 930, subpart E

•Federal financial assistance to state or local agenciesCZMA § 307(d), 15 C.F.R. 930, subpart F

Federal Actions: Types

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Military facilities

Dredging

Wildlife Refuge Expansion

Fishery Plans

Gas Pipelines

Outer Continental Shelf Oil and Gas

Leasing

Timber Sales

Navigation Aids

Hydro-electric Licenses

Land Disposal

Wetland Alteration

Endangered Species Act

Permits

Liquefied Natural Gas Terminals

Airport Layout Plans

StateCoastal

Uses andResources

Federal Agency Activities

Federal Actions with EffectsFederal Authorization

ActivitiesOuter Continental Shelf Oil

and Gas Plans

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“Any reasonably foreseeable effect on any coastal use or resource of the state”

Coastal Effects

15 C.F.R. § 930.11(g)

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“Reasonably foreseeable”•Direct•Indirect

CumulativeSecondary

•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

Coastal Effects

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• 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

Coastal Uses and Resources

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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

Enforceable Policies

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Enforceable policies must:1. Be based on a legally binding state authority

(enforceable mechanism) Cannot be merely a directive to develop regulations

2. Contain a definable standard 3. Be approved by NOAA Policies cannot incorporate unapproved policies by

reference

Enforceable Policies: Three Elements

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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

Enforceable Policies

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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

Enforceable Policies: Preemption

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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 Jersey’s program change request •Previously approved LNG policies are also now non-enforceable

Enforceable Policies: Preemption

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What’s 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

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Enforceable Policies: Discriminatory

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

Enforceable Policies: Program Changes

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Powerful tool for states•Applies state policies to federal actions

o Based on effects not locationo No categorical limitations

•State-Federal coordination and cooperationo Avoids costly “last-minute” changes

•Can build state and public support for federal actions•Results in state concurrence for 95 percent of reviews

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CZMA: Benefits

• States may review, not manage • Only applies if there are effects and enforceable policies• NOAA approval required

Federal Agency Activities• Effects determination made by federal agencies• Federal agencies may proceed over state’s objection• Presidential exemption available

Federal Authorizations• Secretary of Commerce can override state’s objection

CZMA: National Interest Balance

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Questions?

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Remember to Ask

1. Is there a federal action?

2. Are there reasonably foreseeable coastal effects?

3. Is the federal action consistent with the enforceable policies?

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)

Federal Actions: Listed and Unlisted

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

Federal Actions: Outside Coastal Zone

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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 activity affects coastal resources or uses of the state

Federal Actions: On Excluded Lands

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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

Federal Actions: Interstate Effects

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• 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)

Federal Actions: Interstate ReviewsLake Gaston Dispute – Virginia and North Carolina

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• NC CZMA review because effects in NC: striped bass

• NC objects under CZMA• City wins appeal to

Secretary of CommerceNational interest outweighs effects

and No reasonable alternative available

Federal Actions: Interstate ReviewsLake Gaston Dispute – Virginia and North Carolina

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Do activities performed by federal agencies have to be listed by a state in order to be reviewed?

No—but 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

Pop Quiz!

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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

Pop Quiz!

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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

Pop Quiz!

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For activities conducted by federal agenciesAre 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 reasonable, foreseeable coastal effects

Okay, let’s see how this works

Remember to Ask

Subpart C – Federal agency activity Subpart D – Federal license or permit activity

Are there reasonably foreseeable coastal effects?

Yes No

State can review activity regardless of location, even interstate

Federal agency provides consistency determination to state

Is the activity listed or did state notify federal agency?(Note: states are not required to list federal agency activities)

Yes

No

Federal agency provides negative determination to state

Did federal agency previously issue a consistency determination to this state for a similar type of activity?

No

Did federal agency do a thorough CZMA/coastal effects analysis (e.g., for NEPA)?

No further action required No

Where is license or permit activity located?

Inside state’s CZ

Outside any state’s CZ

In other state’s CZ (Subpart I)

Is the activity listed?

Yes

State can review activity

Applicant provides consistency certification to state

Does the state have a GLD?

No

Does the state have an interstate GLD?

Yes

Is the activity listed in interstate GLD?

No

State cannot review activity

Yes

State can request UAR 1. Are there coastal effects, AND 2. Is the request timely?

No

State cannot review activity

Yes

Subpart C – Federal agency activity Subpart D – Federal license or permit activity

Are there reasonably foreseeable coastal effects?

Yes No

State can review activity regardless of location, even interstate

Federal agency provides consistency determination to state

Is the activity listed or did state notify federal agency?(Note: states are not required to list federal agency activities)

Yes

No

Federal agency provides negative determination to state

Did federal agency previously issue a consistency determination to this state for a similar type of activity?

No

Did federal agency do a thorough CZMA/coastal effects analysis (e.g., for NEPA)?

No further action required No

Where is license or permit activity located?

Inside state’s CZ

Outside any state’s CZ

In other state’s CZ (Subpart I)

Is the activity listed?

Yes

State can review activity

Applicant provides consistency certification to state

Does the state have a GLD?

No

Does the state have an interstate GLD?

Yes

Is the activity listed in interstate GLD?

No

State cannot review activity

Yes

State can request UAR 1. Are there coastal effects, AND 2. Is the request timely?

No

State cannot review activity

Yes

Inside CZ – UnlistedEffects NOT Presumed

State Needs NOAA Approval

Inside CZ – ListedEffects Presumed

FC Applies

STATE CZ BOUNDARY – 3 MILES

State Waters – Rhode Island

R.I.

M.A.

FEDERAL WATERS

All Reviews are if Rhode Island is Seeking Review(Same scenario would apply on land)

Geographic Location Boundary for R.I.

Outside CZ – Inside Geo LocUnlisted – Effects NOT Presumed

State Needs NOAA Approval

Outside CZ – Inside Geo LocListed – Effects Presumed

FC Applies

Other State – Subpart I

Inside Geo Loc – Listed

Effects Presumed – FC Applies

Outside CZ – Outside Geo Loc

Listed or Unlisted

Effects NOT Presumed

State Needs NOAA Approval

Other State – Subpart I

Outside Geo Loc – Listed or Unlisted

Effects NOT Presumed

State Needs NOAA Approval

Other State

NO Subpart I

NO FC Review

State Waters – Mass.

FEDERAL WATERS

CZMA 307(c)(3)(A) License or Permit Map

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?

Coastal Uses and Resources: Analysis

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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

Coastal Uses and Resources: Analysis

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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?

Coastal Uses and Resources: Analysis

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Questions?

Procedures: Subparts C and DActivities Undertaken by a Federal Agency Federal Licenses and Permits

Federal agency submits consistency determination (CD)

Applicant submits consistency certification (CC)

Federal agency decides whether there are coastal effects

State decides whether there are coastal effects

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

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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)

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Procedures: Subpart C

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

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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

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Procedures: Subpart C – No Effects

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 state’s 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

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Procedures: Subpart C - CD

• 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).

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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

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Procedures: Subpart C

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

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Subpart C – CMEP

Navy Homeport Dredging – San Diego ChannelU.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

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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

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Subpart C – CMEP

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Questions?

Federal License or Permit Activities•Non-federal applicants•Listed or unlisted in state program•Inside or outside coastal zone

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Procedures: Subpart D

1. Consistency certification to state2. 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 reviewMust be specifically identified and approved by

NOAA as such

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Procedures: Subpart D

3. Running of the six-month review• State needs to pay close attention

Start of six-month period30-day completeness noticeEnd date for six-month review

• Six-month period cannot be “extended” It can only be “stayed” by written agreement

between state and applicantNeeds to meet exact NOAA specifications

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Procedures: Subpart D

4. 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

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Procedures: Subpart D

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

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Procedures: Subpart E

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

Procedures: Subpart F

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• Formal mediation by the Office of the Secretary of Commerce

• OCRM mediation (less formal process, as determined by the parties)

• Voluntary participation• Non-binding

Procedures: Subpart G – Mediation

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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

Subpart G: Mediation Example

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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)

Case Study: California and Navy Sonar

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California Coastal Commission CZMA Review•State disagrees with Navy’s negative determination

Believes there will be coastal effects to whales•Conditionally concurs with various mitigation conditions

Case Study: California and Navy Sonar

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Suite of potential issues and alternatives

•Geographic scope•Coastal resources•Enforceable policies•Consistent to the maximum extent practicable•Federal preemption (MMPA)

Case Study: California and Navy Sonar

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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

Case Study: California and Navy Sonar

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• Only for Subpart D, E or F objectionsNo 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 overriddenFederal agency may approve or fund activity

• Build record in anticipation of appeals

Subpart H: Appeals

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• Consistent with the objectives of the actFurthers the national interest in a significant or

substantial mannerNational interest outweighs adverse coastal effectsNo reasonable alternative available that would

permit the activity to go forward in a consistent manner

• Necessary in the interest of national security

Subpart H: Appeals Criteria

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Questions?

Federal consistency•State ocean planning and management

•Coastal and marine spatial (CMS) plans

•Review of offshore regional projects

Ocean Planning and Management

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• State ocean plans (e.g., Massachusetts, Oregon, and Rhode Island)

• Some states have GLDs (e.g., Connecticut, Delaware, and Rhode Island)

State Ocean Plans

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Even with a NOAA-approved ocean plan, to review activities in federal waters, states need the following things:

1.Enforceable policies Cannot assert jurisdiction over federal agencies or waters

2.A geographic location description for activities to be reviewed in contiguous federal waters

State Ocean Plans

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Geographic Location Description

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Delaware’s GLD for renewable energy activities in federal waters was reduced from the 200 nautical miles originally proposed to 24 nautical miles

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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

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

Regional CMS Plans

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• 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 actionEliminating certain actions from reviews

(e.g., beneficial and de minimis effects)

Regional CMS Plans

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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

Regional CMS Plans

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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

Atlantic Wind Connection (AWC)

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Multi-State, Multi-Phase, Multi-Year ProjectHow 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

Atlantic Wind Connection (AWC)

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Questions?

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NOAA federal consistency websitewww.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!

How Do I Learn More?

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David Kaiser, Senior Policy Analyst• David.Kaiser@noaa.gov (603) 862-2719

Kerry Kehoe, Federal Consistency Specialist• Kerry.Kehoe@noaa.gov (301) 563-1151

Jackie Rolleri, Coastal Management Specialist• Jackie.Rolleri@noaa.gov (301) 563-1179

NOAA Office of Ocean and Coastal Resource Management and Coastal Services Center

National Interest Team

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