Appendix 6 Review of U.S. Ocean and Coastal Law

Chapter 1: Setting the Stage

• NEPA Application: NEPA applies to federal actions affecting the environment in the U.S. Exclusive Economic Zone (EEZ).

• Court Findings:

  • LWAD (Low Frequency Active Sonar) planning is not subject to NEPA review.

  • Individual LWAD sea tests are federal actions subject to NEPA requirements.

• Scope of the Chapter:

  • Discusses international, national, and state marine boundaries and authorities for ocean and coastal resource management.

  • Covers areas: Great Lakes, coastal waters, high seas, estuaries, beaches, coastal zones, offshore federal waters.

Chapter 2: Coastal Management

Introduction

• Management of coastal areas influenced by a mix of local, state, and federal laws.

• Key federal laws affecting coastal management include:

  • Coastal Zone Management Act (CZMA)

  • Clean Water Act

  • Magnuson-Stevens Fishery Conservation and Management Act

  • Oil Pollution Act

  • Marine Mammal Protection Act

  • Endangered Species Act

• Readers directed to related chapters for detail on pollution and oil/gas development.

Governing Statutes: Coastal Zone Management Act (CZMA)

• Background:

  • Established in response to population growth and coastal resource degradation.

  • Aims to preserve, protect, and enhance coastal resources for future generations.

• Partnership Model:

  • Encourages voluntary federal-state partnerships balancing conservation and development.

  • Administered by NOAA, providing incentives and consistency authority for states' coastal programs.

• State Responsibilities under CZMA:

  • Address natural and cultural resource protection, hazard mitigation, prioritizing coast-dependent uses, public access, and water quality improvement.

• National Estuarine Research Reserve System:

  • Established for long-term ecological research and education; areas designated by state governors with NOAA oversight.

Amendments and Enhancements to CZMA

• Major Amendments:

  • 1976 amendments focused on coastal development and energy facility siting post-oil crisis.

  • 1980 modifications emphasized state implementation of national interests in coastal planning.

  • 1990 amendments clarified federal consistency provisions, allowing states to assert policies on federal activities.

  • Introduction of a grant program to enhance coastal management concerning wetlands and energy facility siting.

  • 1996 revisions were minor with no substantive changes.

National Flood Insurance Act

• Established NFIP to combat flooding in coastal areas through federal building standards and incentives.

• FEMA administers the program, offering insurance for compliant communities.

• Consequences of Non-compliance: Federal assistance denied for non-participating communities; stricter state/local regulations encouraged.

Coastal Barrier Resources Act (CBRA)

• Implemented to minimize federal expenditure and ecological damage from coastal barriers.

• Established the CBRS to discourage development through restricted federal assistance.

• Maps of designated areas are updated every five years based on land changes.

Selected Issues in Coastal Management

State Coastal Management Program Development

• States implement federal coastal management via individual programs, addressing diverse issues.

• States have primary jurisdiction over land use, which is crucial for implementing coastal programs.

• 99% of marine and Great Lakes coasts governed by state programs; only Illinois lacks federal approval.

CZMA Federal Consistency Requirement

• Section 307: Federal actions affecting coastal zone land or resources must align with state policies.

• All federal agency activities that foreseeably affect coastal environments are subject to state consistency reviews.

• Effects Test: Every federal activity must determine case-by-case impacts on coastal resources.

Consistency Procedures

• Federal licenses or permits must be accompanied by a state consistency certification to verify adherence to state policies.

• Secretarial Appeals Process: Allows for overrides of state objections based on national interest or compliance with CZMA objectives.

Coastal Development Regulation

• Sensitive coastal areas prone to erosion and environmental degradation require careful regulation.

• Regulatory methods include withholding funding for developments in sensitive areas and direct growth controls.

Takings and Beach Access

Takings Issues

• Takings clause restricts government property acquisition without compensation; regulations affecting property must consider economic viability.

• Case laws shape the understanding of when property regulations constitute a taking.

Public Access to Beaches

• Coastal development limits available public beach access despite the trust doctrine governing the wet sand area.

• States encouraged to legislate public access routes; conditions on development permits may challenge property rights.