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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. - PowerPoint PPT Presentation
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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 / 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
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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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
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CZMA: Benefits
• 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
CZMA: National Interest Balance
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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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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 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 Action: 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 and 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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Questions?
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
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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 effects to coastal resources or uses of the state
Federal Actions: On Excluded Lands
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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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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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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 reasonably foreseeable coastal effects
Okay, let’s see how this works
Remember to Ask
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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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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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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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Questions?
Procedures: Subparts C and DActivities 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
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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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• CZMA Secretarial appeal decisions = 44 (January 2013)14/44 = OCS oil and gas plans2/44 = Natural gas pipelines3/44 = 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
Summary of Secretarial Appeals
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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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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• [email protected] (603) 862-2719
Kerry Kehoe, Federal Consistency Specialist• [email protected] (301) 563-1151
Jackie Rolleri, Coastal Management Specialist• [email protected] (301) 563-1179
NOAA Office of Ocean and Coastal Resource Management and Coastal Services Center
National Interest Team
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