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Federal Consistency, Geographic Location Descriptions (GLDs) and Coastal & Marine Spatial Planning (CMSP) presented May 25, 2011 at The Workshop to Learn Ocean Planning Tools and Techniques
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Federal Consistency, Geographic Federal Consistency, Geographic Location Descriptions (GLDs) Location Descriptions (GLDs) and Coastal & Marine Spatial and Coastal & Marine Spatial
Planning (CMSP)Planning (CMSP)
David Kaiser, Senior Policy AnalystDavid Kaiser, Senior Policy AnalystOffice of Ocean and Coastal Resource ManagementOffice of Ocean and Coastal Resource ManagementNational Oceanic and Atmospheric AdministrationNational Oceanic and Atmospheric Administrationhttp://coastalmanagement.noaa.gov/welcome.htmlhttp://coastalmanagement.noaa.gov/welcome.htmlhttp://coastalmanagement.noaa.gov/consistency/welcome.html
Rhode Island Ocean SAMP & CMSP Workshop
Wednesday, May 25, 2011
NOAA SAMP ApprovalNOAA SAMP Approval Discussions with CRMC on meeting OCRM’s Discussions with CRMC on meeting OCRM’s
program change requirements: program change requirements: early and oftenearly and often.. Usual program change considerations: Usual program change considerations:
Enforceable Policies (EPs) contain standards Enforceable Policies (EPs) contain standards (“shall” not “should,” etc.);(“shall” not “should,” etc.);
EPs do not apply to federal agencies or federal EPs do not apply to federal agencies or federal waters; waters;
EPs are not federally preempted on their face;EPs are not federally preempted on their face; EPs do not discriminate against specific uses;EPs do not discriminate against specific uses; Other EP considerations for the SAMP: Other EP considerations for the SAMP:
directives to state agencies, creation of directives to state agencies, creation of advisory boards, “necessary data & advisory boards, “necessary data & information.”information.”
NOAA SAMP ApprovalNOAA SAMP Approval Two meetings (11/2010 & 5/2011) with OCRM, Two meetings (11/2010 & 5/2011) with OCRM,
CRMC, and Stakeholders to explain OCRM’s CRMC, and Stakeholders to explain OCRM’s comments.comments.
Routine Program Change (RPC) submitted to Routine Program Change (RPC) submitted to OCRM by CRMC. State RPC analysis focuses on: OCRM by CRMC. State RPC analysis focuses on: what is the change (the what is the change (the ΔΔ) between current ) between current program/EPs and what the SAMP adds.program/EPs and what the SAMP adds.
On May 3, CRMC adopts SAMP with OCRM’s On May 3, CRMC adopts SAMP with OCRM’s changes.changes.
OCRM approves the incorporation of the SAMP OCRM approves the incorporation of the SAMP into the RICRMP: May 11, 2011. SAMP EPs now into the RICRMP: May 11, 2011. SAMP EPs now apply through CZMA Federal Consistency reviews.apply through CZMA Federal Consistency reviews.
Now the fun begins....Now the fun begins....
Reviewing Federal License or Permit Reviewing Federal License or Permit Activities Outside the Coastal Zone:Activities Outside the Coastal Zone:Geographic Location DescriptionsGeographic Location Descriptions
15 C.F.R. § 930.53 15 C.F.R. § 930.53 a. States have FC lists of federal license or permit
activities.• To review listed activities outside CZ, state
must describe geographic location of such activities (GLDs).
b. GLD must be based on reasonably foreseeable coastal effects from the listed activity in the proposed GLD. Therefore, different listed activities may have different GLDs.
• Federal lands within the CZ boundary are automatically GLDs.
c. If no GLD approved by OCRM, state may request OCRM approval to review activities outside the CZ on a case-by-case basis as an unlisted activity (15 C.F.R. § 930.54).
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)
Hypothetical 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
GLD Approval Based on Showing of GLD Approval Based on Showing of EffectsEffects
Proposed GLDs must be geographically specific, apply to specific listed federal license or permit activities, and based on an analysis showing that effects on the state’s coastal uses or resources are reasonably foreseeable.
Effect analysis does not have to show proof of coastal effects, but must show a reasonable causal connection. The effects analysis cannot be based on speculation or conclusory statements.
A GLD does not need to delineate the boundary of where effects are reasonably foreseeable and where they are not; it only needs to show that within the area described that effects are reasonably foreseeable.
Delaware based its findings of coastal effects from offshore alternative energy projects on potential migration disruptions to avian species, acoustic and electromagnetic disturbances to marine species; the effects of exclusion zones on commercial and sport fishing; interference with electronic communications; and increased navigational risks due to the rerouting of vessel traffic.
Avian impacts reduced after challenge from BOEMRE.
Delaware’s final GLD for federal waters was reduced to the BOEMRE MD/VA boundary line as effects from alternative energy projects not reasonably foreseeable in federal waters off VA.
24 n.m. seaward boundary is based on the area of potential environmental effects described in the BOEMRE PEIS (2007) for its offshore alternative energy program.
Connecticut initially proposed a much larger GLD for OCSLA offshore renewable energy projects authorized by BOEMRE – effects analysis not adequate.
The GLD was reduced to certain fishing areas based on NMFS statistical areas/data, which provided a reasonable basis for effects to commercial fishing in these areas from potential renewable energy development.
RI Ocean SAMP study area in federal waters and likely GLD
Federal Consistency and Federal Consistency and Regional Coastal and Marine Regional Coastal and Marine
Spatial Plans (CMSP)Spatial Plans (CMSP) Ocean Policy Executive Order (E.O.) 13547, 75 Fed. Reg.
43022-43027 (July 22, 2010), establishing ocean policy, CMSP and National Ocean Council (NOC).
State CMPs, state ocean management plans and state marine spatial planning efforts, as well as state-led multi-state regional efforts, are expected to play a role in the development of regional CMSPs.
States can use the CZMA federal consistency provision to ensure consistency between CMPs and regional CMSPs certified by the NOC.
o States can use in their CMPs (and state OM Plans) administrative efficiencies in NOAA’s regulations to facilitate and streamline federal consistency reviews. These administrative efficiencies include, e.g., creating thresholds for when a federal action would be subject to state CZMA review, use a “general consistency determination” that would cover multiple occurrences of a federal action, and eliminate certain federal actions from consistency reviews (beneficial coastal effects, de minimis coastal effects)).
Federal Consistency and Federal Consistency and Regional Coastal and Marine Regional Coastal and Marine
Spatial Plans (CMSP)Spatial Plans (CMSP)o Regional Planning Bodies (RPBs) could agree to formally
incorporate these CZMA federal consistency administrative efficiencies into a regional CMS Plan;
o A regional CMS Plan could include measures to ensure that it is consistent to the maximum extent practicable with the enforceable policies of the relevant states’ coastal management programs and, vice-versa, states could consider potential changes to the enforceable policies of their coastal management programs to achieve agreed-upon regional CMS Plan objectives;
o States will likely be able to use the federal consistency provision to concur with a NOC-certified regional CMS Plan as consistent with the enforceable policies of a state’s coastal management program.
Federal Consistency and Federal Consistency and Regional Coastal and Marine Regional Coastal and Marine
Spatial Plans (CMSP)Spatial Plans (CMSP)o A regional CMS Plan will not change the interstate
consistency process. If a state already has interstate consistency approval from NOAA, that approval will not change.
o A regional CMS Plan may, however: (1) inform another state’s review of an interstate activity, e.g., if the reviewing state agreed to the regional CMS Plan, the state may choose not to review a federal action in another state, because it is compatible with the regional CMS Plan; and/or (2) mean that a state may choose to not seek interstate consistency authority from NOAA.
http://coastalmanagement.noaa.gov/consistency/welcome.htmlhttp://coastalmanagement.noaa.gov/consistency/welcome.html
David Kaiser, Senior Policy AnalystDavid Kaiser, Senior Policy [email protected] -- 603-862-2719 -- 603-862-2719
Kerry Kehoe, Federal Consistency SpecialistKerry Kehoe, Federal Consistency [email protected] -- 301-563-1151 -- 301-563-1151
Carleigh Rodriguez, Coastal Management SpecialistCarleigh Rodriguez, Coastal Management [email protected] -- 301-563-1125 -- 301-563-1125
Office of Ocean and Coastal Resource ManagementOffice of Ocean and Coastal Resource ManagementNational Oceanic and Atmospheric AdministrationNational Oceanic and Atmospheric Administration
