Coastal Zone Management Act and Related Legislation
Purpose and Organization
In recognition of the increasing pressures of development on the nation's coastal resources, Congress enacted the Coastal Zone Management Act (CZMA) in 1972 and has amended it several times (16 U.S.C. 1450 et seq.). The CZMA encourages states to preserve, protect, develop, and, where possible, restore or enhance valuable natural coastal resources such as wetlands, floodplains, estuaries, beaches, dunes, barrier islands, and coral reefs, as well as the fish and wildlife using those habitats. A unique feature of the CZMA is that participation by states is voluntary. To encourage their participation, the act makes federal financial assistance available to any coastal state or territory, including those on the Great Lakes, that is willing to develop and implement a comprehensive coastal management program.
The Secretary of Commerce delegated the administration of the CZMA to the National Oceanic and Atmospheric Administration (NOAA). NOAA's Office of Ocean and Coastal Resource Management (OCRM) administers individual state programs. OCRM oversees programs in 34 of the 35 coastal states and territories; Illinois, the only state not participating as of early 2006, is also considering developing a program. The CZMA does not apply to states that are not CZMA participants or whose programs have not received OCRM approval.
The CZMA specifies that coastal states may protect coastal resources and manage coastal development. A state with an OCRM-approved program can deny or restrict any development that is inconsistent with its coastal zone management program. This specification affects DOE development activities and may influence ongoing DOE activities. The section of the act most significant to DOE is Section 307, "Coordination and Cooperation."
Provisions for Federal Agency Actions
Congress ensured the representation of federal agency interests when implementing the CZMA by providing administrative grants only to those states that allowed full participation of relevant federal agencies in the development of their management programs (Section 306[d]). After such participation in the development of its state management program, Section 307(c)(1)(A) mandates that:
Each federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved state management programs.
An extensive review and evaluation process (implemented by regulations at 15 Code of Federal Regulations [CFR] part 930) ensures such "federal consistency." The process includes preliminary measures, project review guidelines, and notification and consultation. DOE must comply with federal consistency requirements when construction or other activities potentially affect the coastal zone.
Federal consistency is required for federal agency actions that include:
- federal agency activities, including development projects (15 CFR part 930, subpart C) (see definitions below);
- actions requiring a federal license or permit (15 CFR part 930, subpart D);
- outer continental shelf (OCS) exploration, development, and production activities (15 CFR part 930, subpart E); and,
- federal assistance to state and local governments (15 CFR part 930, subpart F).
"The term 'federal agency activity' means any function performed by or on behalf of a federal agency in the exercise of its statutory responsibilities." (15 CFR 930.31[a]) The term encompasses a wide range of federal agency activities that initiate an event or series of events where coastal effects are reasonably foreseeable (e.g., a proposal to physically alter coastal resources, a proposed plan that would direct future agency actions, a proposed rulemaking that would alter uses of the coastal zone). The term does not include issuing a federal license or permit to an applicant or person or granting federal assistance to an applicant agency.
"The term federal 'development project' means a federal agency activity involving the planning, construction, modification, or removal of public works, facilities, or other structures and includes the acquisition, use, or disposal of any coastal use or resource." (15 CFR 930.31[b])
Section 306(d)(2)(H) of the CZMA requires state management programs to include plans for anticipated impacts from energy facilities. The term energy facilities includes, but is not limited to: electric generating plants; petroleum refineries and associated facilities; gasification plants; facilities used for the transport, conversion, treatment, transfer, or storage of liquefied natural gas; uranium enrichment or nuclear fuel processing facilities; oil and gas facilities, including platforms, assembly plants, storage depots, tank farms, crew and supply bases, and refining complexes; facilities for the transfer of petroleum, including deepwater ports; pipelines and transmission facilities; and terminals that are associated with any of the foregoing. (Section 304)
The CZMA contains environmental compliance implications for DOE projects and programs "directly affecting" the states' coastal zones. "The term 'effect on any coastal use or resource' means any reasonably foreseeable effect on any coastal use or resource resulting from a federal action�. Effects are not just environmental effects, but include effects on coastal uses. Effects include both direct effects [that] result from the activity and occur at the same time and place as the activity, and indirect (cumulative and secondary) effects [that] result from the activity and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects are effects resulting from the incremental impact of the federal action when added to other past, present, and reasonably foreseeable actions, regardless of what person(s) undertake(s) such actions." (15 CFR 930.11[g])
Federal property is not included in the definition of the states' coastal zones, but activities occurring on federal property that directly affect the states' coastal zones must comply with the CZMA. Thus, applicable DOE actions must be consistent with NOAA's federal consistency regulations (15 CFR part 930). Most DOE actions requiring federal consistency will be federal agency activities, including development projects.
Regulations in subpart C of 15 CFR part 930 require that all DOE activities, including development projects, be consistent to the maximum extent practicable with federally approved state coastal zone management programs. DOE must review its activities to determine which directly affect the coastal zone of states with approved plans and provide a written "consistency determination" to the authorized state coastal zone management agency for all such activities. When DOE actions that normally require a consistency determination do not need one because of circumstances specified in 15 CFR part 930.35(d), DOE must write a "negative determination" and provide it to the state. In general, negative determinations are required if the activity was previously identified by the state as having reasonably foreseeable coastal effects, if the activity is similar to activities for which DOE prepared a consistency determination in the past, or if DOE undertook a consistency assessment and developed initial findings on the coastal effects of the activity.
While states have no veto power over DOE activities, CZMA consistency regulations provide for state review and comment on DOE consistency statements. States must respond within 60 days, unless an extension has been approved by DOE as detailed in 15 CFR 930.41(b). Procedures found at 15 CFR part 930, subpart G allow the Secretary of Commerce to mediate serious DOE-state disagreements on consistency determination issues. Federal agency activities, including DOE's energy-related activities, may be eligible for exemption from compliance with state coastal zone management programs if the President determines that such activities are in the paramount interest of the United States [Section 307(c)(1)(B)]. This exemption was added to the statute in 1990 but, as of early 2006, had never been used.
The 1990 CZMA Amendments
On November 5, 1990, President H. W. Bush signed the CZMA Reauthorization Amendments (subtitle C of Title VI of Pub. L. 101-508). The amendments codified certain existing NOAA regulations, but had little effect on federal consistency requirements.
Under a new section on nonpoint source controls (Section 306b[g]), states were required to issue management measures for certain categories of runoff and erosion. Section 306b also required states to evaluate nonpoint sources and to identify coastal areas that would be negatively affected by specified land uses. NOAA was to evaluate the adequacy of each state's existing state CZMA boundary to determine whether it included nonpoint sources that have a significant impact on coastal waters. Section 306b(g) required EPA to develop guidance for state implementation of nonpoint source pollution management measures. EPA's Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters (EPA 840-B-92-002) was published in January 1993. Please click here to view this EPA guidance document. It provides management measures for the following major categories of nonpoint sources: agricultural sources; forestry; urban areas; marinas and recreational boating; hydromodification (i.e., channelization and channel modification, dams, and streambank and shoreline erosion); and wetlands, riparian areas, and vegetated treatment systems. It also provides monitoring and tracking techniques to accompany management measures. The states were required to prepare a Coastal Nonpoint Pollution Control Program and submit it for approval to the Secretary of Commerce and the Administrator of EPA not later than 30 months after EPA published the final guidance.
Coastal Zone Protection Act of 1996
When Congress amended the CZMA in 1996, it added section 319 that set deadlines for the Secretary of Commerce's action on appeals of consistency decisions. (Other changes dealt mainly with grants to states.) The Secretary must publish a notice in the Federal Register as soon as the decision record has been closed on an appeal and must decide the appeal within 90 days of that notice or publish another notice detailing why a decision cannot be issued within the 90-day period. In the latter case a decision must be issued within 45 days of the second notice.
Energy Policy Act of 2005
Section 319 of the CZMA was amended by section 381 of the Energy Policy Act of 2005 (Pub. L. No. 109-58) to mandate deadlines for decisions on appeals of consistency determination under the CZMA. Section 382 specified that the initial record to be used for CZMA appeals of energy projects is the record consolidated by the lead federal permitting agency.
Coastal Barrier Resources Act
The Coastal Barrier Resources Act (CBRA) (16 USC 3501 et seq.), enacted October 18, 1982, may have compliance implications for DOE activities within the Coastal Barrier Resources System (CBRS). The CBRS includes undeveloped coastal barriers on the Atlantic and Gulf coasts and the Great Lakes. Coastal barriers include bay barriers, barrier islands, and other geological features that protect mainland aquatic habitats from direct wind and waves. In general, no new federal expenditures or financial assistance will be made available for development activities within the CBRS. The act contains exemptions for essential military operations, necessary oil and gas exploration, maintenance of channel improvements, establishment and maintenance of air and water navigational devices, scientific studies, and non-structural shoreline stabilization similar to natural stabilization systems.
Regulations implementing the CZMA statute are found in Title 15 of the CFR.