Coastal Zone Management Act Federal Consistency

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) www.coastalmanagement.noaa.gov/welcome.html www.coastalmanagement.noaa.gov/consistency/welcome.html

2. Federal Consistency Training 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

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

4. 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

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

6. 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

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 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!

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

10. 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?

11. 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?

12. 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?

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

14. 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?

15. 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?

16. 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?

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

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

19. 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

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

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

22. What Is “Federal Consistency?” Federal actions, in or outside the coastal zone, that affectany land or water use or natural resource of a state’s coastal zone must be consistent with the enforceable policiesof state CZMA programs See CZMA § 307 (16 U.S.C. § 1456)

23. Remember to Ask • Is there a federal action? • Are there reasonably foreseeable coastal effects? • Is the federal action consistent with the enforceable policies?

24. Federal Actions: Types 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 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

25. Federal Actions with Effects Military facilities Outer Continental Shelf Oil and Gas Leasing Hydro-electric Licenses State Coastal Uses and Resources Dredging Gas Pipelines Navigation Aids Airport Layout Plans Timber Sales Liquefied Natural Gas Terminals Land Disposal Endangered Species Act Permits Fishery Plans Wildlife Refuge Expansion Wetland Alteration Federal Authorization Activities Outer Continental Shelf Oil and Gas Plans Federal Agency Activities

26. Coastal Effects 15 C.F.R. § 930.11(g) “Any reasonably foreseeable effect on any coastal use or resource of the state”

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. CZMA: Benefits Powerful tool for states • Applies state policies to federal actions • Based on effects not location • No categorical limitations • State-Federal coordination and cooperation • Avoids costly “last-minute” changes • Can build state and public support for federal actions • Results in state concurrence for 95 percent of reviews

37. CZMA: National Interest Balance 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

38. Questions?

39. Remember to Ask • Is there a federal action? • Are there reasonably foreseeable coastal effects? • Is the federal action consistent with the enforceable policies?

40. 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. § 930.54)

41. 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

42. 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 activity affects coastal resources or uses of the state

43. 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

44. 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)

45. 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

46. 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

47. 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

48. 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

49. 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 reasonable, foreseeable coastal effects Okay, let’s see how this works

50. Subpart C – Federal agency activity Subpart D – Federal license or permit activity Are there reasonably foreseeable coastal effects? Where is license or permit activity located? Yes No In other state’s CZ (Subpart I) Outside any state’s CZ Inside state’s CZ State can review activity regardless of location, even interstate Is the activity listed or did state notify federal agency? (Note: states are not required to list federal agency activities) Does the state have a GLD? Is the activity listed? Yes Does the state have an interstate GLD? No Federal agency provides consistency determination to state No Yes Did federal agency previously issue a consistency determination to this state for a similar type of activity? Yes No Yes State can request UAR 1. Are there coastal effects, AND 2. Is the request timely? Is the activity listed in interstate GLD? State cannot review activity No Federal agency provides negative determination to state No State can review activity State cannot review activity Did federal agency do a thorough CZMA/coastal effects analysis (e.g., for NEPA)? Applicant provides consistency certification to state Yes No further action required No