Federal Consistency Under the Coastal Zone Management Act: An Emerging Focus of Environmental Controversy in the 1980's

Eldon V. C. Greenberg

Partner, Tuttle & Taylor, Washington, D.C. and Los Angeles, Cal.; formerly General Counsel, National Oceanic and Atmospheric Administration, U.S. Department of Commerce (1978-1981).

[11 ELR 50001]

The federal consistency provisions embodied in §§ 307(c) and 307(d) of the Coastal Zone Management Act (CZMA),¹ have, for almost a decade, been a lurking presence in the federal coastal zone management program. These provisions were designed to ensure that actions for which the federal government has responsibility conform to state coastal zone management objectives. Although the interaction in the consistency process among federal agencies such as the Department of the Interior, the U.S. Army Corps of Engineers, and the Environmental Protection Agency, state coastal management authorities, and private developers has been characterized as on the "frontiers of governmental processes,"² the potential of these provisions for effectuating state management objectives has been largely untapped, and analysis of the implications of § 307 has fallen mainly in the realm of speculation.

In the last eighteen months, a dramatic change has occurred. First, many more state programs have been approved under § 306 of the CZMA by the responsible federal agency, the National Oceanic and Atmospheric Administration (NOAA).³ Through the end of 1978, only 13 programs had been approved by NOAA.⁴ In 1979, six states had programs approved,⁵ and in 1980 six more were added to the federally approved list.⁶ Second, as states have become experienced in managing operational programs, they have begun to realize how the consistency provisions — always a "hypothetical" benefit of the program — can be used. Significant controversies have arisen over such diverse issues as offshore oil and gas leasing, the disposal of a surplus Air Force base, the relocation of Cuban and Haitian refugees, the siting of oil pipelines, and the grant of waivers by the Environmental Protection Agency of the requirements for secondary treatment of wastewater. In each case, the state has been asserting requirements for projects which it determined to be more consonant with its management program than those acceptable to or adopted by the federal government.

This development comes at a critical juncture. A fundamental shift appears to be occurring in the balance between federal and state environmental responsibilities. In the 1970s, federal agencies, acting under a wave of new environmental mandates from Congress, were often on the leading edge in formulating and implementing measures designed to regulate development affecting the nation's natural resources. The promise of the new Administration, however, is for relaxation of numerous federal regulations and a disposition on the part of federal agencies more favorable to applicants for federal licenses and permits. In this changed atmosphere, state and local governments, rather than the federal government, may find themselves taking the stronger regulatory position. Federal consistency could well prove to be one of the most important mechanisms for state and local governments to assert their developmental and environmental objectives against an unsympathetic federal government.⁷

After first describing briefly how the consistency provisions work, this article explores some of the basic expectations which Congress has had for their operation. In then proceeds to measure those expectations against the facts of four recent controversies. Its goal is to show that federal consistency is indeed a powerful tool for states which are committed to assuring wise stewardship of the coastal zone.

I. Federal Consistency: A Brief Introduction

Sectionns 307(c) and 307(d) establish essentially four classes of activities for which a consistency determination is required: direct federal activities and development projects,⁸ federal licenses and permits,⁹ outer continental shelf (OCS) exploration, development, and production plans,¹⁰ and federal assistance to states and local governments.¹¹ Because consistency operates differently in each category, it is worthwhile to examine each separately.¹²

[11 ELR 50002]

The first category — federal activities and development projects — is the simplest statutorily. Federal agencies are required to conduct or support their activities which directly affect the coastal zone in a manner which is, or "insure" that their projects in the coastal zone are, "to the maximum extent practicable, consistent with approved state management programs." Under §§ 307(c)(1) and 307(c)(2), the federal government makes the consistency determination, and the obligation to be consistent is limited by a practicality standard.¹³ Only activities "in" or "directly affecting" the coastal zone are covered.¹⁴ Under the system established by the CZMA regulations, federal agencies make a consistency determination and provide it to a reviewing state agency at least 90 days prior to final approval of the action. The state then has 45 days to respond, with a 15-day extension available upon request. If there is a disagreement which cannot be worked out, mediation by the Secretary of Commerce under § 307(h) is a possibility, and ultimately, recourse to the courts may be sought.¹⁵

The second category — federal licenses and permits — involves certification by a license or permit applicant, incorporated in the application to the federal agency, that a proposed activity affecting the coastal zone "complies with the state's approved program and that such activity will be conducted in a manner consistent with the program."¹⁶ This certification is provided to a reviewing state agency, which must concur or object within six months, or concurrence is conclusively presumed. If a state objects, the federal agency may not issue the license or permit. If the dispute cannot be resolved informally, an applicant may appeal to the Secretary of Commerce. The Secretary has the authority to allow the federal agency to issue the license or permit if he finds that the activity is "consistent with the objective" of the CZMA or "otherwise necessary in the interest of national security."¹⁷

The third category — OCS exploration, development and production plans — is similar to the previous one. The person submitting a plan to the Secretary of the Interior for approval under the Outer Continental Shelf Lands Act¹⁸ must certify that the plan "complies" with the state program and "will be carried out in a manner consistent with such program."¹⁹ Once again, the state has six months to object or concur, or concurrence is conclusively presumed. However, if the state takes more than three months to act and does not advise the Secretary of the Interior by the of that three-month period of the status of the review and the basis for the delay, concurrence is also conclusively presumed. Appeal to the Secretary of Commerce may be taken where an objection cannot be resolved by mutual agreement. If the Secretary finds that "each activity" described in the plan is "consistent with the objectives" of the CZMA or " otherwise necessary in the interests of national securitiy," then the Interior Department may issue necessary permits and licenses.²⁰

The fourth category — federal assistance — is intended to assure that states, in effect, act consistently with their own plans. Sectionn 307(d) requires that state or local government applications for federal assistance must "indicate the views of the appropriate state or local agency as to the relationship of such activities to the approved management program for the coastal zone."²¹ Federal agencies are prohibited from approving inconsistent projects. Reviewing state agencies are notified through the Office of Management and Budget A-95 process.²² If no objection is made prior to conclusion of the A-95 process, the federal agency may grant the assistance. If an objection is filed, then the same appeals procedure under the same standards as exists for licenses, permits, and OCS plans may be invoked.²³

II. Federal Consistency: Congressional Expectations

Recognizing that rapid growth was putting increasing pressures on the productive but delicate coastal areas of the United States, Congress determined in 1972 that the federal government should assist the states in developing programs and administrative mechanisms that would help insure wise development in the coastal zone. The fundamental stimulus for this legislative initiative came from two major studies undertaken in the late 1960s: the so-called Stratton Report²⁴ and the Department of the Interior's NATIONAL ESTUARINE POLLUTION STUDY.²⁵ Of central importance, in particular, to the Stratton Report was its conclusion thatt if there was to be effective management of the coastal zone, state management authorities, with overall responsibility for planning and coordination, would have to be at the core of the new system.

The legislation adopted by Congress essentially followed that fundamental recommendation of the Stratton Report. While the CZMA establishes general standards and guidelines for the development of coastal zone management programs, it is the states that have the ultimate responsibility to develop and implement those programs. Designed to be responsive to the immensely complex problems of managing the coastal zone, the CZMA [11 ELR 50003] leaves each state with substantial flexibility to develop a program tailored to its own specific needs.²⁶

At the heart of this system from the beginning was federal consistency.Congress determined that if the states are to be the primary actors in determining what should or should not be done in the coastal zone, giving adequate consideration to the "national interest involved in planning for, and in the siting of, facilities … which are necessary to meet requirements which are other than local in nature"²⁷ and "assuring that local land and water use regulations within the coastal zone do not unreasonably restrict or exclude land and water uses of regional benefit,"²⁸ then necessarily federal actions should also be consistent with those basic state decisions. In some sense, this has been such a self-evident proposition that it has been little disputed on the three occasions in which Congress has considered the CZMA in a comprehensive manner. Indeed, it is probably fair to say that the congressional expectation was that consistency would and should be invoked and that, in the ordinary course, this should not be cause for alarm.

(a) The 1972 Legislative History

From the release of the Stratton Report in January 1969 until President Nixon's signing of the CZMA on October 27, 1972, the desirability of federal consistency was scarcely contested.²⁹ Early versions of the legislation contained consistency provisions much like those finally enacted.³⁰ Administration witnesses, without reservation, supported these provisions. Thus, for example, Russell Train, Chairman of the President's Council on Environmental Quality, stated before the Senate Commerce Committee on May 5, 1971, that he viewed federal consistency as "a very substantial incentive for the States" to adhere to the program.³¹

In 1972, both responsible congressional committees endorsed consistency enthusiastically. The Senate Commerce Committee concluded that it was "essential that Federal agencies administer theirprograms, including developmental projects, consistent with the State's coastal zone management program."³² The House Committee on Merchant Marine and Fisheries, after voicing similar conclusions, noted: "It is not anticipated that there will be any considerable number of situations where as a practical matter a Federal agency cannot conduct or support activities without deviating from approved State management programs."³³

Differences between the House and Senate bills were ironed out in conference without major substantive change.³⁴ Consistency was not debated during final Senate and House consideration of the legislation.³⁵ It was not noted by the President on signing the bill.³⁶

(b) The 1976 Legislative History

Congress net examined CZMA's consistency provisions in 1975 and 1976.³⁷ While there was concenr about the proper application of these provisions in the OCS leasing process, the basic congressional perspective on the desirability and efficacy of consistency had not changed.³⁸

As passed in 1972, the CZMA contained no explicit reference to the OCS leasing process. Following the 1973 oil embargo and the Nixon Administration's decision to accelerate OCS leasing,³⁹ however, it was felt by many that explicit reference to OCS development, which obviously could affect the coastal zone in a major way, would be desirable.⁴⁰ Thus, in 1976, Congress, while not departing from its original intent that § 307(c)(1) generally applies to all federal activities directly affecting the coastal zone, enacted § 307(c)(3)(B).

The Senate Report on S.586, a bill which would have specifically added the word "lease" to § 307(c)(3) of the CZMA, stressed, "The leverage they [the states] will gain [11 ELR 50004] over Federal activities affecting their coastal zones at that point is a powerful incentive for completion of the State program development process."⁴¹ It went on to restate the positive expectation that the availability of consistency "provides an effective mechanism for guaranteeing that Federal activities, including those supported by, and those carried on pursuant to, Federal authority (license, lease, or permit) will accord with a rational management plan for protection preservation and development of the coastal zone."⁴²

The House Committee on Merchant Marine and Fisheries saw things no differently.⁴³ Its report states the view once again that the consistency provisions constitute "one of the principal incentives for the states and local governments to take part in the Coastal Zone Management Program."⁴⁴ And the House Committee strongly supported the application of consistency to OCS oil and gas development: "The Committee believes that it would break faith with the states not to state plainly its clear intent to include major federal actions as Outer Continental Shelf leasing under the 'federal consistency' section."⁴⁵

Although the Senate passed the version of the bill approved by the Commerce Committee, adding the word "lease" to § 307(c)(3),⁴⁶ when the bill approved by the House Merchant Marine and Fisheries Committee reached the floor of the House, with the identical provision, that provision was sricken on the motion of Congressman DuPont (R-Del.). The purpose of this action was not to reject the concept of the application of consistency to the OCS process in general or leasing in particular but rather to allow more time for evaluation.⁴⁷ As Congressman DuPont stated:

By striking it in the House bill and leaving it in the bill that has already passed the Senate we will be giving ourselvesa little bit of flexibility in the conference to either adopt the language as the Senate put it in or adopt some other langauge we feel would be more beneficial and at the same time protect the rights of the States. So the purpose of this amendment is not to get rid of the word "lease" but to allow us time to work on the problem a little bit longer.⁴⁸

The Conference Report adopted by both Houses divided § 307(c)(3) into two parts. Sectionn 307(c)(3)(A) constituted the original § 307(c)(3), providing for a state consistency certification review of federal licenses and permits. Sectionn 307(c)(3)(B) provided for a separate coordinated and consolidated state consistency certification review of all licenses and permits described in OCS exploration and development/production plans. The intent of this change was to accelerate offshore operations and reduce burdens on the energy industry by eliminating state certification review under § 307(c)(3) for each industry lease bid as well as for each separate, subsequent federal license and permit described in OCS plans.⁴⁹ These changes, while not altering any general application of § 307(c)(1), for example, to Department of the Interior pre-lease activities such as tract selection or choice of lease stipulations, were responsive to Interior's expressions of concern that the proper time for certification by lease applicants should occur at the OCS plan phase.⁵⁰

The changes made in to way reflect on Congress' basic expectations for federal consistency. The congressional mood was positive, only tempered by the recognition that it was still too early to evaluate in any definitive way the efficacy of § 307.⁵¹

(c) The 1980 Legislative History

When Congress next took a detailed look at the CZMA in 1979 and 1980,⁵² while the consistency provisions were the subject of substantial discussion and debate in hearings,⁵³ in the end Congress reiterated the presumed benefits of consistency and determined that no changes should be made in § 307.

[11 ELR 50005]

In its report on the Senate version of the 1980 amendments, S.2622, the Senate Committee on Commerce, Science and Transportation restated the assessments of the benefits of § 307 articulated in previous Congresses. The Committee noted its belief "that significant benefits have been produced through the federal consistency clause;" that, absent federal consistency, "wasteful expenditures may occur that do not serve the public interest;" and that these provisions provide "a significant opportunity for States to influence, within the confines of the Act, federal activities in the coastal zone, and serve as an inducement for voluntary State participation in this most important national program."⁵⁴ The committee further pointed out that through 1979 there had been "no specific instance … where a consistency certification carried out by the State agency administering coastal zone management caused a serious delay or impediment to industry …,"⁵⁵ and it concurred in the "conclusion of most witnesses … that the provision has worked well to date and no amendment is necessary."⁵⁶

The House echoed much the same conclusion. In its Report on the Coastal Zone Management Improvement Act of 1980, the House Committee on Merchant Marine and Fisheries took note of subcommittee chairman Studds' judgment that the consistency provisions "appeared to be working" and that no changes were needed, stressed the "consensus" of the witnesses before the committee that no change was needed and that "the hearing record does not support any such change;" and could point to only one significant disagreement to date.⁵⁷ It concluded its consideration of § 307 stating:

The benefits of this system are significant. First, it fosters consultation between Federal and State agencies at the earliest practicable time. This, in turn, enhances the ability of the States to plan for and manage the coastal zone effects which are directly linked to Federal activities. It also allows Federal agencies to avoid the irretrievable commitment of resources for Federal activities likely to lead to results inconsistent with the requirements of approved State programs.

Secondly, the broad opportunities for States to influence Federal activities enhance the incentive of the consistency provisions, thereby reinforcing voluntary State participation in the national program. Finally, an expansive interpretation of the threshold test is compatible with the amendment to Sectionn 303 calling for Federal agencies and others to participate and cooperate in carrying out the purposes of the act.⁵⁸

In sum, eight years into implementation of the CZMA but still with little practical experience, Congress remained strongly committed to a fundamental belief in the benefits of federal consistency and continued to hold the assumption that intractable problems would not arise in the application of these provisions. Whether this committment to a somewhat abstract concept will survive the test of events is the question now at hand.

III. Some Early Skirmishes on the Consistency Battlefront

Before this past year, there had been few concrete disputes about the application of federal consistency.⁵⁹ Three disputes, all of which revolved around the OCS leasing process should be mentioned, however, for they gave some hint of the potential (and worries about the potential) of § 307.

First, the American Petroleum Institute, the Western Oil and Gas Association, and certain individual petroleum companies challenged the approval of the California Coastal Zone Management Program in part on the grounds that, in exercising its § 307 powers, the state would frustrate energy development. The plaintiffs, however, presented no anticipated objections to specific activities. The court found that this issue, as a result, was not ripe for review, concluding, "Whether the state will utilize its consistency powers improperly to retard or halt energy development are [sic] wholly speculative."⁶⁰ But notice was given of the degree of concern which the oil industry had for the effects of § 307 in the OCS context.

Second, NOAA and the Department of the Interior engaged in a protracted battle over whether § 307(c)(1) applied to Interior's OCS pre-lease activities (e.g., tract selection and choice of lease stipulations). ⁶¹ Ultimately the dispute was submitted to the Justice Department for resolution. The Justice Department rendered a solomonic decision, concluding that pre-lease sale activities are covered by § 307(c)(1) to the extent they "directly affect" the coastal zone, but NOAA regulations, which defined the phrase "directly affect" to mean "significantly affect," were invalid.The question whether OCS pre-lease activities "directly affect" the coastal zone was, the Justice [11 ELR 50006] Department declared, a factual one which it left open.⁶² In responding, NOAA amended its consistency regulations to delete the offending definition,⁶³ but the regulations' actual application to pre-lease sale activities remained unresolved, and the importance of that application remained to be tested in a concrete context.

Third, in June 1979, the State of California challenged the Department of the Interior's determination, following the Justice Department opinion, that pre-lease activities associated with OCS Lease Sale No. 48 (in the Santa Barbara Channel) did not "directly affect" the California coastal zone.⁶⁴ The Department of the Interior argued that because intervening lessee action was necessary to develop mineral resources following the lease sale, pre-lease sale activities could not themselves "directly affect" the coastal zone within the meaning of the CZMA. California, taking a contrary position, requested that the Secretary of Commerce mediate the disagreement, as provided for by § 307(h) of the CZMA and implementing regulations.⁶⁵

While the mediation effort is interesting from a legal perspective, the particular controversy was essentially hypothetical. The State of California did not in fact assert that pre-lease sale activities were inconsistent with the state's approved program and, indeed, did not object to the sale itself. When the mediation failed, no further steps were taken.⁶⁶ The power of consistency remained to be vindicated in another setting.

IV. Four Recent Disputes: Consistency Applied

For the most part, application of the federal consistency provisions appears to be taking place routinely, without much fuss and without undue delay to the federal decisionmaking process, even when major projects are involved.⁶⁷ Without intending to overshadow this routine (and relatively amicable) conduct of consistency reviews, it is instructive to examine as well how consistency is working when conflict does arise. Four recent disputes over the application of § 307 have, in fact, for the first time demonstrated the utility of this section as a tool for asserting the objectives of approved programs. Each of these is described below:⁶⁸

(a) Offshore Drilling in the Santa Barbara Channel: A Successful Assertion of Consistency

In the summer of 1980, the State of California objected successfully to a consistency determination made in connection with a proposed OCS activity.

The activity at issue involved an exploration plan prepared by Chevron USA, Inc., for drilling a delineation well to determine the size and extent of an oil field in the Santa Barbara Channel. The proposed site was 5.7 nautical miles north of Anacapa Island in approximately 770 feet of water. It was situated approximately 400 feet from (and thus within the 500 meter buffer zone of) the north bound vessel traffic lane established by a Coast Guard Vessel Traffic Separation Scheme.

There could be little question that the proposed activity would take place in an environmentally sensitive area. Anacapa Island is the only stable breeding colony in California for the endangered brown pelican. Key foraging areas extend at least six miles from the island. The State of California had designated the territorial waters surrounding Anacapa Island and other islands as Marine Life Refuges, Oil and Gas Sanctuaries, and areas of Special Biological Significance. Further, Anacapa Island and surrounding waters within one nautical mile were recently named part of the new Channel Islands National Park. Finally, the exploration site fell within the boundaries of NOAA's proposed Channel Islands Marine Sanctuary.⁶⁹

The California Coastal Commission staff examined in detail the consistency certification made by Chevron. In a 16-page report,⁷⁰ the staff assessed the oil spill risks and concluded that, even with all reasonable mitigation efforts, Chevron's activities still would leave the endangered [11 ELR 50007] brown pelican vulnerable to an unacceptable risk of harm. The staff also found that feasible, less environmentally damaging alternatives were available that would still allow Chevron to explore and exploit the field. Finally, the staff noted that an objection was compatible with the objectives of NOAA's Channel Islands Marine Sanctuary.

Acting on the staff report and recommendations, on August 19, 1980, the California Coastal Commission unanimously adopted a resolution objecting to Chevron's consistency certification and finding that Chevron's plan of exploration failed to meet a number of specific requirements of the California Coastal Act.⁷¹ By letter dated August 25, 1980, the resolution was transmitted by the Executive Director of the California Coastal Commission to Chevron, which was advised that it had a right to appeal to the Secretary of Commerce⁷² within 30 days of receipt of the objection. Despite substantial publicity surrounding the California Coastal Commission's actions,⁷³ and early indications from Chevron that itwould appeal, no appeal was in fact filed. The first objection to an OCS plan had prevailed.⁷⁴

(b) Challenging the Disposal of Federal Lands: What To Do With A Used Air Force Base.

Efforts by the General Services Administration (GSA) to dispose of Hamilton Air Force Base in Marin County, California provide another perspective on federal consistency.

Airport development has long been a matter of concern in the San Francisco Bay area. Because, as a practical matter, airport development can only take place along the margins of the Bay itself, that development necesarily generates pressures to fill in portions of the Bay. If an existing runway, however, such as Hamilton Air Force Base, were preserved for future aviation use, other areas of the Bay could be protected.

In response to this problem, the approved plan of the San Francisco Bay Conservation and Development Commission (BCDC) designates Hamilton Air Force Base as an "airport priority use area." An accompanying policy note reads, "If and when not needed by the Air Force, site should be evaluated for commercial or industrial airport use as part of regional airport system study …." In BCDC's view, its program required the retention of commercial/industrial aviation options upon disposal unless and until the designation was altered by virtue of the outcome of a comprehensive study of aviation policy for the North Bay.

GSA, however, was undoubtedly anxious to dispose of the property and perhaps worried about how long it would take for local authorities to study all the options. On June 24, 1980, the GSA Administrator thus decided to transfer a portion of the 2,000-acre base, comprising low-lying areas, some uplands, and part of the runway, to the U.S. Fish and Wildlife Service as a wildlife refuge. This transfer would ensure, in effect, that the rest of the runway would be too short for use by jets. The majority of the upland portion of the base, including the remainder of the runway, would be turned over the Marin County to develop as it pleased.The remainder of the base would be parceled out to other local agencies. No consistency determination was filed with BCDC.⁷⁵

BCDC immediately objected. On July 19, 1980, the Executive Director of BCDC wrote the Administrator of GSA and stated that it was "essential" for a consistency determination to be submitted for action which he characterized as potentially having "significant impacts on the entire Bay Area." BCDC advised GSA that, in its judgment, "a serious disagreement exists" and, further, should GSA not respond affirmatively by July 24, BCDC would seek a temporary restraining order and a preliminary injunction.⁷⁶

Subsequently, on July 30, 1980, a suit was filed in the Northern District of California challenging GSA's decision.⁷⁷ Asserting that the GSA decision, if implemented, would "forever preclude the use of Hamilton Air Force Base for commercial aviation, an option which the federal managment program for San Francisco Bay provides must be kept open until completion of a study of regional aviation needs," the complaint charges that such decision is not consistent with BCDC's program and that failure to file a consistency determination violates §§ 307(c)(1) and 307(c)(2) of the CZMA. The complaint seeks both injunctive relief and relief in the form of mandamus against the responsible GSA officials.

Although the State of California moved for a temporary restraining order and a preliminary injunction, the case was not heard by the court, and the parties engaged in active settlement discussions. In practical terms, the litigation had its effect.GSA did not dispose of the property, and studies of regional airport needs were allowed to be completed. BCDC is now in the process of amending its program so as to achieve a final resolution of the conflict. In the interim, invocation of federal consistency has preserved options which the state authorities believed were more compatible with their coastal management objectives than those chosen by the federal government.

[11 ELR 50008]

(c) Sewage Treatment: A State-Local Conflict

Consistency is also proving its worth in conflicts between state governments and local government applicants for federal permits.

On September 13, 1979, the City of Gloucester, Massachusetts, filed with the United States Environmental Protection Agency (EPA) an application under § 301(h) of the Clean Water Act⁷⁸ for a modified permit with would constitute a waiver from the Act's requirements for secondary treatment of wastewater. As required by § 307(c)(3) of the CZMA and 15 C.F.R. § 930.57, the city submitted to the Commonwealth of Massachusetts a certification that the proposed activity would be consistent with the state coastal zone management program.

Gloucester's proposal was to construct a primary treatment system utilizing an extended outfall for the discharge of treated wastewater instead of constructing a secondary treatment system. The city stated, in its certification, that the grant of the waiver is one specifically permitted under the Clean Water Act. It asserted that the proposed system would both upgrade the existing water quality situation in the Gloucester Harbor and meet all water quality and marine resource standards under the Clean Water Act.It also claimed that the proposed system would meet state water quality standards. The proposal, it contended, was thus fully consistent with the CZMA and the state's approved program.

The Commonwealth of Massachusetts, in responding, took a different view. On March 11, 1980, the Massachusetts Coastal Zone Management Office advised the City of Gloucester that it had completed the review of the consistency certification. It objected to the consistency certification because there was not sufficient data to support a conclusion thatt the effluent from the proposed primary treatment plant would comply with the Massachusetts Clean Water Act.⁷⁹ In these circumstances, the Commonwealth of Massachusetts could not find that the application of the City was consistent with Policy III of the Massachusetts Coastal Zone Management Plan, which reads:

Support attainment of the national water quality goals for all waters of the coastal zone through coordination with existing water quality planning and management agencies. Ensure that all activities endorsed by CZM in its policies are consistent with federal and state effluent limitations and water quality standards.⁸⁰

The letter went on to say that the state would withdraw its objection if a water pollution analysis demonstrated that water quality standards would be met and the Division of Water Pollution Control issued a water quality certification. Subsequently, on October 6, 1980, the Massachusetts Department of Water Pollution Control issued a water quality standard certification for the proposed Gloucester primary treatment system, thereby obviating the objection.

This withdrawal, surprisingly, did not end the matter. On November 19, 1980, the state again objected to the consistency certification. This time it maintained an objection to the consistency determination on the grounds that the installation of a primary treatment plant would contravene the Massachusetts Oceans Sanctuaries Act⁸¹ and thus Policy III of the state program as well. No reasons were given for the state's not having found a problem under the Oceans Sanctuaries Act six months earlier.

On December 15, 1980, the City of Gloucester filed a notice of appeal with the Secretary of Commerce pursuant to 15 C.F.R. § 930.125.That appeal has yet to be heard.⁸² In the meantime, however, plans for a primary wastewater facility are stalled, and EPA has not taken action on the Gloucester's waiver application. The state, at least for the interim, has been effective in seeking to ensure that a higher degree of environmental protection would be applied to wastewater treatment in the City of Gloucester than the city fathers themselves were seeking and than the responsible federal agency might have been willing to accept.

(d) Refugee Resettlement in Puerto Rico: Consistency in An Unexpected Context

A final example of the recent use of § 307 is found in a challenge by the Commonwealth of Puerto Rico to federal plans for resettlement of Cuban and Haitian refugees. It indicates the extent to which federal consistency may prove valuable in unexpected contexts.

In Commonwealth of Puerto Rico v. Muskie,⁸³ the court dealt with a challenge by the Commonwealth of Puerto Rico to a proposed decision to construct a refugee camp for Cuban and Haitian refugees at Fort Allen, a military facility in Puerto Rico. The Commonwealth contended that the Departments of State and Defense, which were responsible for the resettlement program, violated § 307(c)(1) of the CZMA because the consistency determination filed by the agencies did not consider potential waste discharges into the coastal watershed and coastal waters which would likely result from the proposed use of Fort Allen.

Although the defendants had purportedly filed a letter with the Commonwealth asserting consistency in general terms, the court gave this short shrift while strictly construing the requirements of NOAA's regulations. The court indicated that a state must be given enough information to reach an informed decision, which means full compliance with the requirements of 15 C.F.R. § 930.39(a).⁸⁴ Further, the court emphasized the defendants [11 ELR 50009] were required under NOAA's regulations⁸⁵ to wait "at least 90 days after … filing before transferring refugees to Fort Allen."⁸⁶

The court rejected the federal government's contention that a consistency determination was not required because Fort Allen is federal property specifically excluded from the definition of "coastal zone" in § 304(1) of the CZMA. Adopting the interpretation of the CZMA found in NOAA's regulations,⁸⁷ the district court held that the proposed action "directly affected" the coastal zone because the use of Fort Allen would necessarily result in wastewater discharges into coastal waters and waste discharge in the coastal watershed.

Finally, the court concluded that activities at Fort Allen would be inconsistent with Puerto Rico's coastal zone program. As the court stated, "The inevitable result of overloading the capacity of the waste-water treatment facility will be the release of partially treated sewage into the coastal zone," and the solid waste "will be dumped into an already severely overloaded landfill that has difficulty with flooding and has been known to permit solid waste to be carried downstream through the coastal zone."

In light of these and other findings, the Muskie court enjoined further transfers to Fort Allen. A program of high political visibility and national concern was halted because of the failure of the federal government to consider adequately the degree to which that program would be consistent with a particular state's long-term objectives for its coastal zone.

V. Conclusion: The Future of Consistency

The controversies of the past year give some hint as to the importance which the federal consistency provisions might play in the ensuing decade. Whether there will be funds availale, however, at least in a number of states, to maintain program eligibility and thus be able to invoke the requirements of § 307 is today an open question.⁸⁸

If § 306 program grants,⁸⁹ together with the coastal energy impact program (CEIP),⁹⁰ disappear, the last federal incentive for program adherence will be § 307. In the 1980s, as the federal government moves away from a strong regulatory stance but as state governments continue to seek to pursue their chosen objectives for managing development in the coastal zone, this incentive should be more powerful than ever. Conflicts appear bound to arise,⁹¹ and consistency is certainly one of the most potent tools for asserting state interests in the management of the coastal zone against an insensitive or distant federal bureaucracy. The challenge to concerned coastal states is to act on this recognition and generate enough budgetary support, at the state if not the federal level, to keep the nation's fledgling coastal zone management programs from faltering.

Appendix I

Coastal Zone Management Act § 307(c) & (d)

(c)(1) Each Federal agency conducting or supporting activities directly affecting the coastal zone shall conduct or support those activities in a manner which is, to the maximum extent practicable, consistent with approved state management programs.

(2) Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the project is, to the maximum extent practicable, consistent with approved state management programs.

(3)(A) After final approval by the Secretary of a state's management program, any applicant for a required Federal license or permit to conduct an activity affecting land or water uses in the coastal zone of that state shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the state's approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the state or its designated agency a copy of the certification, with all necessary information and data. Each coastal state shall establish procedures for public notice in the case of all such certifications and, to the extent it deems appropriate, procedures for public hearings in connection therewith. At the earliest practicable time, the state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to the applicant's certification. If the state or its designated agency [11 ELR 50010] fails to furnish the required notification within six months after receipt of its copy of the applicant's certification, the state's concurrence with the certification shall be conclusively presumed. No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant's certification or until, by the state's failure to act, the concurrence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the applicant, finds, after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the state, that the activity is consistent with the objectives of this title or is otherwise necessary in the interest of national security.

(b) After the management program of any coastalstate has been approved by the Secretary under section 306, any person who submits to the Secretary of the Interior any plan for the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act (43 U.S.C. § 1331 et seq.) and regulations under such Act shall, with respect to any exploration, development, or production described in such plan and affecting any land use or water use in the coastal zone of such state, attach to such plan a certification that each activity which is described in detail in such plan complies with such state's approved management program and will be carried out in a manner consistent with such program. No Federal official or agency shall grant such person any license or permit for any activity described in detail in such plan until such state or its designated agency receives a copy of such certification and plan, together with any other necessary data and information, and until —

(i) such state or its designated agency, in accordance with the procedures required to be established by such state pursuant to subparagraph (A), concurs with such person's certification and notifies the Secretary and the Secretary of the Interior of such concurrence;

(ii) concurrence by such state with such certification is conclusively presumed as provided for in subparagraph (A), except if such state fails to concur with or object to such certification within three months after receipt of its copy of such certification and supporting information, such state shall provide the Secretary, the appropriate federal agency, and such person with a written statement describing the status of review and the basis for further delay in issuing a final decision, and if such statement is not so provided, concurrence by such state with such certification shall be conclusively presumed; or

[(ii) revised by PL 95-372, September 18, 1978]

(iii) the Secretary finds, pursuant to subparagraph (A), that each activity which is described in detail in such plan is consistent with the objectives of this title or is otherwise necessary in the interest of national security.

If a state concurs or is conclusively presumed to concur, or if the Secretary makes such a finding, the provisions of subparagraph (A) are not applicable with respect to such person, such state, and any Federal license or permit which is required to conduct any activity affecting land uses or water uses in the coastal zone of such state which is described in detail in the plan to which such concurrence or finding applies. If such state objects to such certification and if the Secretary fails to make a finding under clause (iii) with respect to such certification, or if such person fails substantially to comply with such plan as submitted, such person shall submit an amendment to such plan, or a new plan, to the Secretary of the Interior. With respect to any amendment or new plan submitted to the Secretary of the Interior pursuant to the preceding sentence, the applicable time period for purposes of concurrence by conclusive presumption under subparagraph (A) is 3 months.

(d) State and local governments submitting applications for Federal assistance under other Federal programs affecting the coastal zone shall indicate the views of the appropriate state or local agency as to the relationship of such activities to the approved management program for the coastal zone. Such applications shall be submitted and coordinated in accordance with the provisions of title IV of the Intergovernmental Coordination Act of 1968 (82 Stat. 1098). Federal agencies shall not approve proposed projects that are inconsistent with a coastal state's management program, except upon a finding by the Secretary that such project is consistent with the purposes of this title or necessary in the interest of national security.

1. The Coastal Zone Management Act of 1972, as amended, 16 U.S.C. §§ 1451-1464, ELR STAT. & REG. 41701.The consistency provisions are found at § 307(c) & (d), 16 U.S.C. § 1456(c) & (d), ELR STAT. & REG. 41704. These provisions are set out in full in Appendix I.

2. Karp, Consistency Review of OCS Activity Off California, in COASTAL ZONE '80 2103 (B. Edge ed. 1980).

3. Approval by NOAA, based on findings that the state program meets the federal standards found in §§ 305 & 306 of the CZMA, not only makes states eligible to receive federal grants for program implementation but also triggers the availability of § 307.

4. Washington, Oregon, California, Rhode Island, Maine, Massachusetts, Maryland, North Carolina, Puerto Rico, Wisconsin, Michigan, Hawaii, and New Jersey.

5. Delaware, Suth Carolina, Alabama, Virgin Islands, Alaska, and Guam.

6. Connecticut, Mississippi, Louisiana, Pennsylvania, American Samoa, and the Northern Marianas.

7. It is ironic that this comes at a time when termination of federal funding for CZMA programs appears likely. In the budget sent to Congress on March 10, 1981, the Administration would eliminate the total amount of funds ($34 million) which had been included in the Carter budget for § 306 program grants in Fiscal Year 1982. See Executive Office of the President, Office of Management and Budget, The Fiscal Year 1982 Budget Revisions 49 (March 10, 1981). If the cuts are voted by Congress, states may not have the money to continue to maintain all the elements of an approved program. Should § 306 eligibility be lost, of course, so too would be the availability of federal consistency.

8. Sectionn 307(c)(1) & (2).

9. Sectionn 307(c)(3)(A).

10. Sectionn 307(c)(3)(B).

11. Sectionn 307(d).

12. For a general guide to these provisions, see Office of Coastal Zone Management, Federal Consistency in a Nutshell, reprinted in Hearing on Oversight on the Coastal Zone Management Programs Before the Senate Committee on Commerce, Science and Transportation, 95th Cong., 2d Sess. 59-67 (1978). While consistency regulations were subsequently modified to eliminate a reference to their scope as including all activity "significantly affecting the coastal zone," see text at note 63, infra, and while § 307(c)(3)(B) was modified in a minor way by Congress in 1978, see note 52, infra, the basic structural analysis is still accurate. For current consistency regulations, see 15 C.F.R. Part 930, published in 44 Fed. Reg. 37142 (June 25, 1979).

13. CZMA regulations narrowly construe this standard, requiring consistency except where legally impermissible or where there as "unforeseen circumstances arising after the approval of the management program which present the Federal agency with a substantial obstacle that prevents complete adherence to the approved program." 15 C.F.R. § 930.32(a) & (b).

14. The meaning of the phrase "directly affecting" has been in substantial dispute throughout much of the past decade.See text at notes 61-66, infra.

15. See generally 15 C.F.R. pt. 930, subpts. C & G.

16. Sectionn 307(c)(3)(A).

17. See generally 15 C.F.R. pt. 930, subpts. D & H.

18. 43 U.S.C. §§ 1331-1356, ELR STAT. & REG. 42451.

19. Sectionn 307(c)(3)(B).

20. See generally 15 C.F.R. pt. 930, subpts. E.& H.

21. Sectionn 307(d).

22. See 41 Fed. Reg. 2052 (1976), ELR STAT. & REG. 47001. OMB Directive A-95 establishes a general process for evaluation, review, and coordination of federally assisted programs.

23. See generally 15 C.F.R. pt. 930, subpts. F & H.

24. U.S. Commission on Marine Science, Engineering and Resources, Our Nation and the Sea (1969).

25. U.S. Department of the Interior, THE NATIONAL ESTUARINE POLLUTION STUDY, (Doc. No. 91-58) 91st Cong., 2d Sess. (1970).

26. See American Petroleum Institute v. Knecht, 609 F.2d 1306, 1312, 10 ELR 20083, 20085 (9th Cir. 1979).

27. Sectionn 306(c)(8).

28. Sectionn 306(a)(2).

29. The history of the CZMA is set forth fully in SENATE COMMITTEE ON COMMERCE, LEGISLATIVE HISTORY OF THE COASTAL ZONE MANAGEMENT ACT, 94th Cong., 2d Sess. (1976) [hereinafter cited as CZMA HISTORY].

30. See e.g., S.2802, 91st Cong., 1st Sess. § 309 (introduced Aug. 8, 1969), CZMA HISTORY, supra note 29, at 466; H.R. 14845, 91st Cong., 1st Sess. § 3(19)(g) (introduced Nov. 18, 1969), CZMA HISTORY, supra note 29, at 480.

31. CZMA HISTORY, supra note 29, at 100.

32. S. REP. NO. 92-753, 92d Cong., 2d Sess. 18 (1972), CZMA HISTORY, supra note 29, at 210.

33. H.R. REP. NO. 92-1049, 94th Cong., 2d Sess. 19 (1972), CZMA HISTORY, supra note 29, at 323.

34. H.R. REP. NO. 92-1544, 92d Cong., 2d Sess. 7-8, 15 (1972), CZMA HISTORY, supra note 29, at 449-50, 457.

35. CZMA HISTORY, supra note 29, at 247, 363.

36. CZMA HISTORY, supra note 29, at 459.

37. In 1974, Congress modified §§ 305, 306 & 315 "to provide more flexibility in the allocation of administrative grants" but did not consider § 307 issues. See Pub. L. No. 93-612, 88 Stat. 1974 (Jan. 2, 1975).

38. There was, of course, little basis for change. In July 1976, when the Coastal Zone Management Act Amendments of 1976, Pub. L. No. 94-370, were enacted, only three states (Washington, Oregon, and California) had approved programs, and none of these had any experience in applying the consistency provisions.Indeed, NOAA did not even propose regulations implementing § 307 until September 1976. See 41 Fed. Reg. 42880 (Sept. 26, 1976). Reproposed regulations were issued in August 1977, 42 Fed. Reg. 43590 (Aug. 29, 1977), and final consistency regulations were not issued until March 1978. 43 Fed. Reg. 10511 (Mar. 13, 1978).

39. See U.S. Department of the Interior, Final Environmental Impact Statement on Proposed Increase in Oil and Gas Leasing on the Outer Continental Shelf (July 7, 1975). The original proposal was to lease more than 10 million acres, tripling what had previously been planned.

40. As Senator Hollings stated in introducing his amendments (S.586) on February 5, 1975:

The second major provision of this bill concerns the so-called "Federal consistency provision" of the Coastal Zone Management Act. While this provision clearly states that all Federal licenses and permits must be consistent with a State's approved coastal zone management program to the extent practicable, the applicability of this provision to Outer Continental Shelf oil and gas development activities has not yet been established by the courts. Our bill would make this provision specific with regard to Federal leasing activities and to OCS development and production activities directly or indirectly affecting the coastal zone of coastal States, thereby assuring a modicum of substantive State participation in decision making concerning the timing and location of offshore development.

CZMA HISTORY, supra note 29, at 616.

41. S. REP. NO. 94-277, 94th Cong. 1st Sess. 20 (1975), CZMA HISTORY, supra note 29, at 746.

42. Id. at 37, CZMA HISTORY, supra note 29, at 763.

43. H.R. 3981, approved by the committee, was identical to S.586 in adding the word "lease" to § 307(c)(3).

44. H.R. REP. NO. 94-878, 94th Cong. 2d Sess. 53 (1976), CZMA, stressed, "The leverage they [the states] will gain

45. Id.

46. 121 CONG. REC. 23050, 23086 (1975).

47. The Department of the Interior had argued that delays in OCS development would result if every lease and every related permit and license were to be subject to the procedures of § 307(c)(3). See Letter from Secretary of the Interior Kleppe to the Director, Office of Management and Budget (May 24, 1976).

48. 122 CONG. REC. 6128 (1976).

49. See Statement of Senator Hollings, 122 CONG. REC. 21230 (1976).

50. Hearings on Coastal Zone Management before the Subcommittee on Oceanography of the House Committee on Merchant Marine and Fisheries, 94th Cong., 1st Sess. 187-88, 204 (1975). For a discussion of application of § 307(c)(1) in the lease sale context, see taxt at notes 61-66, infra.

51. As the Conference Report on the 1976 amendments states:

During their deliberations, the conferees raised a number of questions regarding the advisability and workability of the present Federal consistency provision in the 1972 Act. Particular attention was focused on certain ambiguities in critical procedural determinations and the necessity of the six-month period for conclusive presumption. It was determined that these matters will be the subject of subsequent in depth oversight hearings on the coastal zone management program in the next Congress.

H. REP. NO. 94-1298, 94th Cong., 2d Sess. 31 (1976), CZMA HISTORY, supra note 29, at 1081.

52. Oversight hearings held in April 1978 by the Senate Commerce Committee generated little light. See Hearing on Oversight on the Coastal Zone Management Programs Before the Senate Committee on Commerce, Science and Transportation, 95th Cong., 2d Sess., Ser. No. 95-94 (1978). Only three states had approved programs, and final consistency regulations had just been issued the previous month. The discussion of how consistency worked was necessarily abstract.

In September 1978, § 307(c)(3)(B) was modified in a minor way to put greater pressure on states to respond quickly in the OCS plan review process. Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95-372, 92 Stat. 629 (Sept. 18, 1978), § 504. codified at 16 U.S.C. § 1456(c)(3)(B) ELR STAT. & REG. 41704. There was, however, no general review of consistency.

53. See generally Hearings Before the Subcommitte on Oceanography of the House Committee on Merchant Marine and Fisheries on Coastal Zone Management Act Oversight and Coastal Zone Management Act Amendments, 96th Cong., 2d Sess. (1979, 1980) (Statement of W. Samuel Tucker at 195; Joint Statement of American Petroleum Institute and Western Oil and Gas Association at 275).

54. S. REP. NO. 96-783, 96th Cong., 2d Sess. 10 (1980).

55. Id.

56. Id. at 11.

57. H.R. REP. NO. 96-1012, 96th Cong., 2d Sess. 31, 34-35 (1980). The disagreement referred to is discussed in the next section.

58. Id.

59. The issue, of course, was not entirely dormant. In Save Lake Washington, v. Frank, 13 ERC 1189 (W.D. Wash. 1979), for example, plaintiffs unsuccessfully challenged construction of a federal office building complex in the coastal zone, claiming that it was inconsistent with a state program. The court rejected this argument on the grounds that (1) the claimed inconsistency related to a part of the program that had never been adopted, and (b) the state had accepted the federal agency's consistency determination without comment and the agency was therefore "entitled to rely" on the state's action. In Romero-Barcelo v. Brown, 478 F. Supp. 646 (D.P.R. 1979), in a holding now open to question, see text at note 87, infra, the court rejected a consistency challenge to the Navy's use of the Island of Vieques off the coast of Puerto Rico as a bombing range, relying both on the CZMA's definition of the coastal zone, which excludes federal lands (§ 304(1)), and on an evaluation of the actual impacts of the Navy's activities. And, the Coastal Zone Management Interaction Committee and the Edison Electric Institute sought, without success, in a rulemaking petition to modify NOAA's consistency regulations insofar as they covered permit and license renewal applications. See 44 Fed. Reg. 51835 (Sept. 5, 1979); 44 Fed. Reg. 75439 (Dec. 20, 1979).

60. American Petroleum Institute v. Knecht, 456 F. Supp. 889, 903, 8 ELR 20853, 20858 (C.D. Ca. 1978), aff'd on other grounds, 609 F.2d 1306, 10 ELR 20083 (9th Cir. 1979).

61. This disagreement was acknowledged in NOAA's consistency regulations. See 43 Fed. Reg. 10512 (Mar. 13, 1978). For a general discussion of this issue, see Deller, Federalism and Offshore Oil and Gas Leasing: Must Federal Tract Selections and Lease Stipulations Be Consistent With State Coastal Zone Management Programs, 14 U. CAL. D.L. REV. 105 (1980).

62. Letter from Leon Ulmer, Deputy Assistant Attorney General, Office of Legal Counsel, to C.L. Haslam, General Counsel, Department of Commerce, and Leo Krulitz, Solicitor, Department of the Interior (Apr. 23, 1979).

63. 44 Fed. Reg. 37142 (June 21, 1979).

64. For a collection of the basic documents in this dispute, see H.R. REP. NO. 96-1012, 96th Cong. 2d Sess. Appendix I (1980). For a fuller discussion of this mediation effort, see Deller, note 61, infra; Moore, Outer Continental Shelf Development and Recent Applications of the Coastal Zone Management Act, 15 TULSA L. REV. 443 (1980).

65. 15 C.F.R. pt. 930 subpt. G.

66. The Secretary of Commerce, in concluding the mediation, did direct NOAA to define the phrase "directly affecting" in new regulations in order to put the dispute to rest. After a long delay, and, one suspects, under substantial pressure from recent litigation, see note 91, infra, proposed regulations, were issued on May 14, 1981. 46 Fed. Reg. 26658 (May 14, 1981). These regulations, if adopted, would effectively exempt pre-lease activities from the consistency requirement.

67. See, e.g., Lawyer, Federal Consistency — Is it Working? A Perspective From the Pacific Northwest, in COASTAL ZONE '80 2123 (B. Edge ed. 1980); Hearings Before the Subcommittee on Oceanography of the House Committee on Merchant Marine and Fisheries on Coastal Zone Management, 96th Cong., 2d Sess. 1126-1152 (1980) (statement of Michael Fischer, Executive Director, California Coastal Commission).

68. A fifth recent case involving federal consistency is No Oil Port! v. Carter, Civil Action No. C80-360 M (W.D. Wash. Feb. 5, 1981), a suit challenging the construction of an oil pipeline from Port Angeles, Washington to Clearbrook, Minnesota (the "Northern Tier Pipeline"). Among other claims, plaintiffs in No Oil Port! asserted that the issuance by the Secretary of the Interior of a right of way permit for purposes of the proposed oil pipeline violated the CZMA. The plaintiffs contended that the Northern Tier Pipeline Company, which intended to build the pipeline, did not certify either to the State of Washington or the Secretary of the Interior that the project was consistent with the State of Washington's coastal zone management program. The court, however, held there to be no violation on the grounds that NOAA's consistency regulations, 15 C.F.R. § 930.53(b) & (d), provide that certification is necessary only for permits contained on a list supplied by a state to the Secretary of the Interior, and in this case, the State of Washington did not have such a list on file. Further, the court found that any error was "harmless" on the ground that the State of Washington would still have the opportunity, in a proceeding before the State Energy Facility Site Evaluation Council, to "have its say" on whether the project was consistent with its program.

69. The Channel Islands Marine Sanctuary was designated on September 22, 1980 after receiving Presidential approval on September 21, 1980. See 45 Fed. Reg. 65198 (Oct. 2, 1980). For a general description of the values of this area, see NOAA, Final Environmental Impact Statement on Proposed Channel Islands Marine Sanctuary (June 6, 1980).

70. California Coastal Commission, Consistency Certification Staff Recommendation (undated, August 1980).

71. These included CAL. PUB. RES. CODE § 30230 (maintenance of marine resources); § 30232 (protection against oil spillage); § 30240 (protection of environmentally sensitive habitat); § 30260 (encouragement of industrial development at existing sites); and § 30262 (encouragement of safe development).

72. See 15 C.F.R. § 930.125.

73. See Wall Street Journal, Aug. 22, 1980, at 10; Los Angeles Times, Aug. 20, 1980, at 3.

74. A second objection, which ultimately was withdrawn, involved the applciation of Exxon for an exploration permit in the Beaufort Sea. Initially, on January 31, 1981, the Division of Policy Development and Planning in the Office of the Governor found Exxon's proposal inconsisten on the grounds that the project's design and planning had not been finalized. However, after Exxon transmitted a notice of appeal to the Secretary of Commerce, the State of Alaska reversed its position and on February 27, 1981 advised Exxon that it no longer objected.

75. There is no real question that disposing of federal property is a "Federal activity" covered by the CZMA. Indeed, it is specifically identified as such in NOAA's regulations. 15 C.F.R. § 930.31(b). Whether there was an enforceable policy to be consistent with in this case, however, is another question, and GSA has subsequently argued that none existed. The GSA decision memorandum states (incorrectly) that the Bay Area program had been "suspended" for revision.

76. Letter from Michael B. Wilmar, Executive Director, BCDC, to Rowland G. Freeman III, Administrator, GSA (July 19, 1980).

77. State of California ex rel. BCDC v. United States et al., Civil No. C-80-3132 RPA (N.D. Cal., filed July 30, 1980).

78. 33 U.S.C. § 1311(h), ELR STAT. & REG. 42123.

79. MASS. GEN. LAWS ANN. ch. 21, § 27.

80. MCZMP, Policy III.

81. MASS. GEN. LAWS ANN. ch. 132, §§ 13-17.

82. The appeal has been stayed while the City of Gloucester is seeking amendments to the Ocean Sanctuaries Act which would allow it to proceed.

83. __ F. Supp. __, 11 ELR 20424 (D.P.R. Jan. 5, 1981).

84. That section reads:

(a) The consistency determination shall include a brief statement indicating whether or not the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the management program. The statement must be based upon an evaluation of the relevant provisions of the management program. The consistency determination shall also include a detailed description of the activity, its associated facilities, and their coastal zone effects, and comprehensive data and information sufficient to support the Federal agency's consistency statement. The amount of detail in the statement evaluation, activity description and supporting information shall be commensurate with the expected effects of the activity on the coastal zone.

85. 15 C.F.R. § 930.41.

86. 11 ELR at 20435 (emphasis in original).

87. 15 C.F.R. § 930.33(c) provides, "Federal activities outside the coastal zone (e.g., on excluded federal lands, on the Outer Continental Shelf, or landward of the coastal zone) are subject to Federal agency review to determine whether they directly affect the coastal zone." In adopting this interpretation, the court rejected the contrary approach, which it characterized as dictum only, in Romero-Barcelo v. Brown, 478 F. Supp. 646 (D.P.R. 1979), aff'd, 11 ELR 20391 (1st Cir. Jan. 26, 1981). See note 59, supra.

88. See note 7, supra. An informal poll conducted by the Coastal States Organization indicated that more than one-half the states would shut down their programs if there were no federal funding for fiscal year 1982. Coastal Zone Management News-letter, March 25, 1981, at 2.

89. Grants for implementing state programs authorized under § 306 are the major source of funding for most state programs. In FY 1980, they amounted to $31.6 million.

90. CEIP has been an important incentive for states to adhere to the federal CZM program. CEIP loans and grants, which are designed to assist states and localities plan for and mitigate the effects of coastal energy development, are available only to states participating in the federal CZM program. CZMA § 308(g)(1). The Reagan Administration has proposed to terminate CEIP entirely. See Executive Office of the President, Office of Management and Budget, Fiscal Year 1982 Budget Revisions 49 (Mar. 10, 1981).

91. Most recently, for example, the Department of the Interior issued a Notice of Sale for Lease Sale No. 53 off the coast of California, see 46 Fed. Reg. 23673 (Apr. 27, 1981), without making a consistency determination. The sale includes a number of tracts to which the State of California has objected. The state promptly filed suit to enjoin the sale of the disputed tracts on the grounds, inter alia, that no consistency determination has been made and, in any event, that inclusion of the disputed tracts is inconsistent with the state's coastal zone management program. State of California v. Watt, Civ. No. 81-2080 (C.D. Cal., filed April 29, 1981). This suit promises to be a major test of whether § 307(c)(1) applies to pre-lease sale activities. On May 27, Judge Pfaelzer preliminarily enjoined the opening of the bids for Lease Sale No. 53, concluding that the state was likely to prevail on its claim that the Interior Department had violated § 307(c)(1) by failing to make a consistency determination.