Coastal Zone Management Act Federal Consistency

Coastal Zone Management Act Federal Consistency
National Oceanic and Atmospheric Administration (NOAA) Office of Ocean and Coastal Resource Management (OCRM) Coastal Services Center (CSC)

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

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

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

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

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 * Explain the office name change.

Today’s Agenda The Quiz Overview of CZMA and federal consistency
What is federal consistency? What are the procedures for federal consistency? Federal consistency analyses

Before We Begin 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!

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

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?

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?

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?

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

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?

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?

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?

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

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

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

State and Territorial CZM Programs
Alaska Hawaii Guam American Samoa N. Mariana Islands Puerto Rico U.S. Virgin Islands Federally Approved - 34 Not Participating - 1

CZMA: Incentives for Participation
Voluntary Two incentives: Federal financial assistance Federal consistency review authority

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

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

What Is “Federal Consistency?”
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)

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

Federal Actions and Effects
Federal Agency Activities Federal Authorization Activities 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 Outer Continental Shelf Oil and Gas Plans State Coastal Uses and Resources

Coastal Effects “Any reasonably foreseeable effect on any coastal use or resource of the state” 15 C.F.R. § (g)

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

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

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

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

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

Questions?

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. § )

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

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

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)

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

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

Pop Quiz! 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! 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! 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

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, let’s see how this works

M.A. R.I. CZMA 307(c)(3)(A) License or Permit Map FEDERAL WATERS
State Waters – Mass. Geographic Location Boundary for R.I. Other State – Subpart I Inside Geo Loc – Listed Effects Presumed – FC Applies Other State – Subpart I Outside Geo Loc – Listed or Unlisted Effects NOT Presumed State Needs NOAA Approval State Waters – Rhode Island Inside CZ – Listed Effects Presumed FC Applies STATE CZ BOUNDARY – 3 MILES Other State NO Subpart I NO FC Review Inside CZ – Unlisted Effects NOT Presumed State Needs NOAA Approval FEDERAL WATERS Outside CZ – Inside Geo Loc Listed – Effects Presumed FC Applies Font should be at least 24. Outside CZ – Inside Geo Loc Unlisted – Effects NOT Presumed State Needs NOAA Approval Outside CZ – Outside Geo Loc Listed or Unlisted Effects NOT Presumed State Needs NOAA Approval FEDERAL WATERS All Reviews are if Rhode Island is Seeking Review (Same scenario would apply on land)

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?

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

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?

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

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

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

Enforceable Policies: Discriminatory
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

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

Questions?

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

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)

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

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 IMPORTANT: If none of those are met, federal agency doesn’t have to provide negative determination.

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 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

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).

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

Subpart C – CMEP Consistent to the maximum extent practicable What if?
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

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

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

Questions?

Procedures: Subpart D Federal License or Permit Activities
Non-federal applicants Listed or unlisted in state program Inside or outside coastal zone

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

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

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

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 GLD May be required if activity is so far offshore – state still has to show effects (see preamble to 2006 regs).

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 for intergovernmental reviews or state clearinghouse Timeframe not specified

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 Litigation can occur at same time as mediation – put in TPs

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

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)

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

Suite of potential issues and alternatives Geographic scope Coastal resources Enforceable policies Consistent to the maximum extent practicable Federal preemption (MMPA)

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

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

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

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

Questions?

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

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

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

Geographic Location Description

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

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

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)

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

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

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

Questions?

How Do I Learn More? NOAA federal consistency website Call Us!
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!

National Interest Team
David Kaiser, Senior Policy Analyst (603) Kerry Kehoe, Federal Consistency Specialist (301) Jackie Rolleri, Coastal Management Specialist (301) NOAA Office of Ocean and Coastal Resource Management and Coastal Services Center

Coastal Zone Management Act Federal Consistency

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