Presentation on theme: "Coastal Zone Management Act Federal Consistency"— Presentation transcript:
1 Coastal Zone Management Act Federal Consistency National Oceanic and Atmospheric Administration (NOAA)Office of Ocean and Coastal Resource Management (OCRM)Coastal Services Center (CSC)
2 Federal Consistency Training U.S. Coast Guard / Norfolk, VA / May 2014Why are we here?Provide a basic understanding of the procedures and principles of the federal consistency rulesDiscuss how to identify and analyze federal consistency issuesAnswer your specific questions
3 Introductions Kerry Kehoe J.D., University of Baltimore Chesapeake Bay FoundationCoastal States OrganizationMD Dept. of Natural ResourcesNOAA, OCRM and CSC
4 Introductions Jackie Rolleri J.D., Roger Williams University School of LawMaster of Marine Affairs, University of Rhode IslandPresidential Mgmt. FellowNOAA, OCRM and CSC
5 Introductions Who Are You? Name Office or program Experience with federal consistencyA particular question that you might have
6 Introductions Office of Ocean and Coastal Resource Management Administers the CZMAApproves state programs and program changesAwards CZMA grantsEvaluates state CZMA programsProvides technical assistanceOversees federal consistency complianceProvides mediation assistanceContributes expertise within national policy discussions* Explain the office name change.
7 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
8 Before We BeginDon’t be intimidated by the seeming complexity of federal consistencyWords 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 questionsTell us if we need to speak up!
9 The QuizIf a state objects to a federal agency activity, the federal agency can appeal to the Secretary of CommerceTrue or False?
10 The QuizThe broad scope of state CZMA consistency review authority enables states to establish enforceable policies to manage activities in federal watersTrue or False?
11 The QuizUnlike 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 practicableTrue or False?
12 The QuizStates are required to list federal licenses and permits for activities they seek to review but not projects undertaken by federal agenciesTrue or False?
13 The QuizActivities occurring on federal lands and waters are not subject to CZMA consistency reviewTrue or False?
14 The QuizA federal agency may submit a consistency determination in any manner it chooses so long as the required information is includedTrue or False?
15 The QuizA 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 metTrue or False?
16 The QuizA federal agency and a state can agree to shorten or lengthen the consistency review timeframe for a federal agency activityTrue or False?
17 The QuizA state and federal permit applicant can agree to extend the six-month review periodTrue or False?
18 The QuizA state has six months to review activities undertaken by a private contractor for a federal agency activityTrue or False?
19 Coastal Zone Management Act of 1972 There are three primary objectives:Balances resource protection with economic, recreational, and cultural needsEmphasizes the primacy of state decisionsEncourages participation by all levels of government, from local to federal, as well as participation by the public
20 State and Territorial CZM Programs AlaskaHawaiiGuamAmericanSamoaN. MarianaIslandsPuerto RicoU.S. Virgin IslandsFederally Approved - 34Not Participating - 1
22 CZMA: Benefits Powerful tool for states Applies state policies to federal actionsNo geographical or categorical limitationsProvides a mechanism for addressing effectsFosters early consultation to avoid costly “last-minute” changesState review with public input can build supportResults in state concurrence for 95 percent of reviews
23 CZMA: National Interest Balance States may review, not manageOnly applies if there are effects and enforceable policiesNOAA approval requiredFederal AgenciesEffects determination made by federal agenciesFederal agencies may proceed over objectionsPresidential exemption availableFederal License and Permit ApplicantsSecretary of Commerce can override state objections
24 What Is “Federal Consistency?” Federal actions, in or outside the coastal zone, that affect any land or water use or natural resource of a state’s coastal zone must be consistent with the enforceable policies of state CZMA programs See CZMA § 307 (16 U.S.C. § 1456)
25 Federal Action: Types Is it a “federal action?” Federal agency activities and development projectsCZMA § 307(c)(1), (2), 15 C.F.R. 930, subpart CFederal licenses or permits (non-federal applicants)CZMA § 307(c)(3)(A), 15 C.F.R. 930, subpart DOuter Continental Shelf plansCZMA § 307(c)(3)(B), 15 C.F.R. 930, subpart EFederal financial assistance to state or local agenciesCZMA § 307(d), 15 C.F.R. 930, subpart F
26 Federal Actions and Effects Federal Agency ActivitiesFederal AuthorizationActivitiesMilitary facilitiesDredgingWildlife Refuge ExpansionFishery PlansGas PipelinesOuter Continental Shelf Oil and Gas LeasingTimber SalesNavigation AidsHydro-electric LicensesLand DisposalWetland AlterationEndangered Species Act PermitsLiquefied Natural Gas TerminalsAirport Layout PlansOuter Continental Shelf Oil and Gas PlansStateCoastalUses andResources
27 Coastal Effects“Any reasonably foreseeable effect on any coastal use or resource of the state”15 C.F.R. § (g)
28 Coastal Effects “Reasonably foreseeable” Direct Indirect CumulativeSecondaryMay be adverse or beneficial“Reasonably foreseeable” ≠ “Likely”Note: A finding of no effects under other federal statutes does not mean that there are no CZMA coastal effects
29 Coastal Uses and Resources Uses – Public access, recreation, fishing, historic, cultural, development, hazards management, marinas, and resource creation or restorationResources – Air, wetlands and water bodies, aquifers, aquatic vegetation, plants, animals, land, minerals, and coastal resources of national significanceCan include uses and resources outside of the coastal zone
30 Enforceable PoliciesEnforceable policies are the key to implementing federal consistencyAn objection can only be based on approved enforceable policiesThe CZMA term “enforceable policy” has a unique meaning
31 Enforceable Policies: Three Elements Enforceable policies must:Be based on a legally binding state authority (enforceable mechanism)Cannot be merely a directive to develop regulationsContain a definable standardBe approved by NOAAPolicies cannot incorporate unapproved policies by reference
32 Enforceable Policies Enforceable policies must not: Be preempted by federal lawDiscriminate against a particular group or activityAssert jurisdiction over federal agencies, lands or watersBe superseded by subsequent state law
34 Federal Actions: Listed and Unlisted Do states have to identify (list) activities to be reviewed?If performed by a federal agency (Subpart C) NoIf authorized by a federal agency (Subpart D) YesCan states review unlisted federal authorizations?With OCRM approval on a case-by-case basis (15 C.F.R. § )
35 Federal Actions: Outside Coastal Zone Can states review federal actions outside the coastal zone?YesIf conducted by a federal agency and effects (listing not required)If authorized by a federal agencystate must have an approved geographic location description (GLD) of listed activities occurring outside of the coastal zone, orrequest NOAA approval to review the unlisted activity
36 Federal Actions: On Excluded Lands Can states review activities on “excluded” federal lands?CZMA “excludes” all federal lands and waters from the coastal zoneStates authorized to review, not manage, activities on federal lands and watersFederal consistency still applies to activities on “excluded” federal lands if effects to coastal resources or uses of the state
37 Federal Actions: Interstate Reviews Lake Gaston Dispute – Virginia and North CarolinaCity of Virginia Beach, Virginia, needs waterProposed 90-mile pipeline from Lake GastonProject wholly in VirginiaFederal Energy Regulatory Commission authorization needed for water withdrawal from lake and Roanoke River, which flows into North Carolina (NC)
38 Federal Actions: Interstate Reviews Lake Gaston Dispute – Virginia and North CarolinaNC CZMA review because effects in NC: striped bassNC objects under CZMACity wins appeal to Secretary of CommerceNational interest outweighs effects andNo reasonable alternative available
39 Federal Actions: Interstate Effects Activities Conducted by Federal AgenciesIf effects, subject to review regardless of locationActivities Authorized by a Federal AgencyOnly if state has NOAA approved:Listing of federally authorized actions found to have interstate effects andA geographic description of where activities with interstate effects are foundNote: Subpart “I” authority needed to review unlisted activities with interstate effects
40 Pop Quiz!Do activities performed by federal agencies have to be listed by a state in order to be reviewed? 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
41 Pop Quiz!Do activities authorized by federal agencies through the issuance of licenses or permits have to be listed by a state in order to be reviewed?Yes
42 Pop Quiz!If a state has not listed a federally authorized activity, is there a way that a state can still review the activity?Yes – by submitting an unlisted activity review request to OCRM
43 Remember to Ask For activities conducted by federal agencies Are there reasonably foreseeable coastal effects?For licenses and permits authorized by federal agenciesIs 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 effectsOkay, let’s see how this works
44 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 IInside Geo Loc – ListedEffects Presumed – FC AppliesOther State – Subpart IOutside Geo Loc – Listed or UnlistedEffects NOT PresumedState Needs NOAA ApprovalState Waters – Rhode IslandInside CZ – ListedEffects PresumedFC AppliesSTATE CZ BOUNDARY – 3 MILESOther StateNO Subpart INO FC ReviewInside CZ – UnlistedEffects NOT PresumedState Needs NOAA ApprovalFEDERAL WATERSOutside CZ – Inside Geo LocListed – Effects PresumedFC AppliesFont should be at least 24.Outside CZ – Inside Geo LocUnlisted – Effects NOT PresumedState Needs NOAA ApprovalOutside CZ – Outside Geo LocListed or UnlistedEffects NOT PresumedState Needs NOAA ApprovalFEDERAL WATERSAll Reviews are if Rhode Island is Seeking Review(Same scenario would apply on land)
45 Coastal Uses and Resources: Analysis Application to National Marine Fisheries Service (NMFS) for “Exempted Fishing Permit” for U.S. Exclusive Economic Zone 50 to 200 miles offshoreWhat is the federal action?What subpart applies?Unlisted activityWhat does state need to do?
46 Coastal Uses and Resources: Analysis State submits unlisted activity requestAssert effects to leatherback turtlesTurtles are a Highly Migratory Species (HMS)By what measure are these HMS “resources of the state”?Most do not enter state watersOne boat for four runsEndangered Species Act authorization limits take to one mortality
47 Coastal Uses and Resources: Analysis ResultUnlisted activity request deniedState 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 stateWhat might have made for a different result?
48 Delaware’s GLD for renewable energy activities in federal waters was reduced from the 200 nautical miles originally proposed to 24 nautical miles
49 Enforceable Policies: Preemption Military training flightsLow level flights in North CarolinaImpacts to wildlife and public enjoyment?State proposes noise and minimum altitude policies to apply through federal consistencyNOAA denies state request to incorporate enforceable policiesStates preempted from regulating aircraft in flight
50 Enforceable Policies: Preemption Liquefied natural gas (LNG) sitingEnergy Policy Act of 2005 – Amends the Natural Gas Act, preempting regulation of LNG sitingNew Jersey then submits revised LNG siting policies to NOAANOAA denies New Jersey’s program change requestPreviously approved LNG policies are also now non-enforceable
51 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 sourceAlso need to consider regional and national interests
52 Enforceable Policies: Program Changes Enforceable policies may no longer be effective if superseded by changes in statutes, regulations, or case law Programs and enforceable policies need to be kept up-to-date Program and policy changes need NOAA approval
54 Procedures: Subparts C and D Activities Undertaken by a Federal AgencyFederal Licenses and PermitsSubmission of a consistency determination (CD)Submission of a consistency certification (CC)Submitted at least 90 days before final actionSubmitted with or after license or permit applicationState has 60 (plus 15) days to reviewState has 6 months to reviewReview starts when CD received (if complete)Review starts when CC and necessary data and information submitted“Consistent to the maximum extent practicable”Fully consistentFederal agency can proceed over objectionIf objection, federal agency may not authorize the activity – applicant may appeal state objection to Secretary of CommerceState can bring suit in court to enforce objection and/or seek mediationEither or both parties can bring suit in court only after a decision issued by the Secretary of Commerce on appeal by the license orpermit applicant
55 Procedures: Subpart C Federal agency activities Federal agency determines coastal effectsAgency finds eitherNo effects no further actionNo effects submits negative determinationEffects submits consistency determination (CD)
56 Procedures: Subpart C – No Effects A no effects and no further action finding is for activities for which (A) there are no effects, and (B) a negative determination is not required
57 Procedures: Subpart C – No Effects A negative determination is required to be submitted when there is no coastal effect andThe state has listed the activityA CD was previously issued for the type of activity orThe Federal agency conducted a thorough analysis of effects and found noneIMPORTANT: If none of those are met, federal agency doesn’t have to provide negative determination.
58 Procedures: Subpart C - CD If coastal effects, consistency determinations shall beBased on --An evaluation of whether the proposed activity is consistent to the maximum extent practicable with the state’s enforceable policiesAnd include --A detailed description of the activity and its associated facilitiesTheir coastal effectsData and information sufficient to support the decision
59 Procedures: Subpart CConsistency or negative determination and supporting information submitted to state 90 days before activity beginsProposed action is the subject of federal consistency review, NOT all related actions (e.g., National Environmental Policy Act, Endangered Species Act, federal permits, and others).
60 Procedures: Subpart C Activity must be consistent to the maximum extent practicable (CMEP)State has 60 (+15) days to reviewState may take the following actions:ConcurObjectFederal agency may proceed over state objection if CMEPState mayRequest mediationFile suit to litigate dispute
61 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 fundingActivity is classifiedThere are exigent circumstances
62 Subpart C – CMEP Navy Homeport Dredging – San Diego Channel U.S.S. Stennis Carrier GroupCCC/Navy Agreement -- Place sand on beachesLive ordnance found!Sift sand or dump offshore?Navy, state, OCRM discussionsLitigation – injunction / Navy not CMEPSettlement – Navy agrees to find other source of sand for beach renourishment
63 Subpart C – CMEP National Marine Fisheries Service (NMFS) approval of fishery management plan (FMP)State objects or issues conditional concurrenceWants changes in size limit, gear restrictions, seasonsNMFS proceeds without complyingWhy?NMFS is CMEPAdministrative record in this instance does not support compliance
65 Procedures: Subpart D Federal License or Permit Activities Non-federal applicantsListed or unlisted in state programInside or outside coastal zone
66 Procedures: Subpart D Consistency certification to state Start of the six-month reviewBegins when there is a federal application and state receives consistency certification and necessary data and informationReview 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
67 Procedures: Subpart D Running of the six-month review State needs to pay close attentionStart of six-month period30-day completeness noticeEnd date for six-month reviewSix-month period cannot be “extended”It can only be “stayed” by written agreement between state and applicantNeeds to meet exact NOAA specifications
68 Procedures: Subpart D State decision at end of six-month review State may concur, conditionally concur, or objectIf state objection, federal agency cannot approveApplicant may appeal objection to Secretary of CommerceIf no decision by state, concurrence is assumed
69 Procedures: Subpart E Outer Continental Shelf Lands Act (OCSLA) CZMA specifically provides for state reviewRules on CZMA and OCSLA coordinationSubpart C – lease salesSubpart D – exploration, development, and production plans and all licenses or permitsGLD May be required if activity is so far offshore – state still has to show effects (see preamble to 2006 regs).
70 Procedures: Subpart F Financial assistance activities Only federal financial assistance to state and local agenciesOther federal financial assistance may be subject to Subpart C – residual categoryTypes of assistance should be listedSubmission to state under Executive Order for intergovernmental reviews or state clearinghouseTimeframe not specified
71 Procedures: Subpart G – Mediation Formal mediation by the Office of the Secretary of CommerceOCRM mediation (less formal process, as determined by the parties)Voluntary participationNon-bindingLitigation can occur at same time as mediation – put in TPs
72 Subpart G: Mediation Example Navy radar testing facilityHigh frequency radar emissionsHealth and marine mammal and bird concernsNegative determination disputedOCRM mediationTechnical review panelOCRM report to state and NavyNavy agrees with all but one recommendationState is satisfied – resolved
73 Case Study: California and Navy Sonar Complex integrated training exercise needed for strike force certificationAnti-submarine warfareMid-frequency active sonarNOAA NMFS Marine Mammal Protection Act (MMPA) mitigation for whalesConsistency determination (CD) to California for exercise, but no effects from sonar to whales (behavioral modifications from sonar do not rise to coastal effects)
74 Case Study: California and Navy Sonar California Coastal Commission CZMA ReviewState disagrees with Navy’s negative determinationBelieves there will be coastal effects to whalesConditionally concurs with various mitigation conditions
75 Case Study: California and Navy Sonar Suite of potential issues and alternativesGeographic scopeCoastal resourcesEnforceable policiesConsistent to the maximum extent practicableFederal preemption (MMPA)
76 Case Study: California and Navy Sonar Outcomes:OCRM mediation and litigationCZMA Presidential exemptionThe rest of the story:National Environmental Policy Act (NEPA) and Council for Environmental Quality “Alternative Arrangements”Ninth Circuit finds for California on NEPA issueSupreme Court decision overturns Ninth Circuit
77 Subpart H: Appeals Only for Subpart D, E or F objections No appeals by federal agencies or third partiesDe novo reviewOverride decision based on CZMA appeal criteria, based on the balance of CZMA objectives or national security, not whether state made correct decisionIf overriddenFederal agency may approve or fund activityBuild record in anticipation of appeals
78 Subpart H: Appeals Criteria 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 mannerNecessary in the interest of national security
79 Summary of Secretarial Appeals CZMA Secretarial appeal decisions = 44 (January 2013)14/44 = OCS oil and gas plans2/44 = Natural gas pipelines3/44 = Liquefied natural gas terminals or pipelinesAppeals dismissed or state objections overridden on procedural grounds = 33Appeals withdrawn, settled, or both = 64Total number of appeals filed = 141
81 Ocean Planning and Management Federal consistencyState ocean planning and managementCoastal and marine spatial (CMS) plansReview of offshore regional projects
82 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)
83 State Ocean PlansEven with a NOAA-approved ocean plan, to review activities in federal waters, states need the following things:Enforceable policiesCannot assert jurisdiction over federal agencies or watersA geographic location description for activities to be reviewed in contiguous federal waters
85 Connecticut proposed a GLD for OCSLA offshore renewable energy projects —effects analysis not adequate The GLD was reduced and approved for certain fishing areas based on NMFS statistical areas and data
86 Regional CMS Plans Ocean Policy Executive Order 13547: Established ocean policy and National Ocean Council (NOC)States play a role in developing regional CMS Plans
87 Regional CMS PlansFederal consistency can ensure consistency between CMPs and regional CMS plansFederal consistency administrative efficiencies can streamline reviews in these ways:Creating thresholds for reviewsUsing “general consistency determinations” for multiple occurrences of an actionEliminating certain actions from reviews (e.g., beneficial and de minimis effects)
88 Regional CMS PlansNote: Regional CMS plans do not change the interstate consistency review processHowever, states may find no need to review a federal action in another state because it is compatible with the regional CMS plan
89 Atlantic Wind Connection (AWC) Proposed regional electrical transmission projectDesigned to connect offshore wind power projects to the grid and reduce transmission congestion800-mile right-of-way installed in five phasesOffshore five Atlantic states
90 Atlantic Wind Connection (AWC) Multi-State, Multi-Phase, Multi-Year ProjectHow best to do federal consistency?AWC initially provided consistency certification for entire projectEach subsequent phase requires Bureau of Ocean Energy authorization and can be separately reviewedSupplemental consistency reviews also available if major amendments or significant changes
92 How Do I Learn More? NOAA federal consistency website Call Us! CZMAFederal consistency regulations, 15 C.F.R. Part 930Preambles to 2000 and 2006 regulationsFederal consistency overviewState federal consistency ListsFederal consistency appealsCall Us!
93 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