Towards a National Coastal Policy

Barnett M. Lawrence

Editors' Summary: The coastal areas of this country provide more than just a place to spend a vacation. They have always supported a substantial proportion of the country's population, are the source and support of much of its fishing industry, and provide the potential for substantial energy resources. But the conflicts associated with increasing population growth and economic prosperity have seriously degraded coastal areas in recent years. In 1972 Congress enacted the Coastal Zone Management Act (CZMA) in an attempt to prevent further deterioration of the coasts. However, numerous other federal statutes also directly affect coastal areas. These statutes create conflicting directives and ensure a complex regulatory framework that can be difficult to coordinate. This Comment describes the many federal statutes, the CZMA among them, that in one way or another affect activities along the coasts. It explains how the current framework contributes to fragmented, unclear policies and analyzes how pollution control strategies could be better integrated into land use management schemes in the coastal zone.

[17 ELR 10404]

The coastline of the United States winds its way along 95,000 miles of inlets, estuaries, beaches, and bustling ports. From the sand dunes of southern California to the wetlands of Louisiana to the port cities along the Great Lakes, the nation's coasts support a diversity of natural, recreational, and commercial activities. These coastal areas contain a valuable supply of marine and mineral resources, yet their fragile ecosystems are highly vulnerable to man's influence.

The natural beauty and abundance of resources in coastal areas have led to increasing pressures on the coasts. A growing number of people have been attracted to live or recreate near the shore.¹ More people means more hotels, marinas, condominiums, and other coastal development. The highly productive marine ecosystem supports a lucrative commercial fishing industry.² The fossil fuel³ and mineral resources⁴ located off our coasts are coveted by industry and a nation searching for domestic energy sources. Further, pressures to dump more pollutants into the marine environment will increase as the nation's population and industrial activities continue to grow.⁵

The existing structure for the regulation of coastal areas will be severely tested as these often competing demands increasingly come into direct conflict. A complex array of local, state, and federal programs affects the coastal zone.⁶ Some statutes are congressional responses to specific coastal problems, and thus are tailored to deal with that individual problem.⁷ Other statutes are aimed at general [17 ELR 10405] environmental problems and have no specific focus oncoastal impacts.⁸ Only one federal statute provides a comprehensive framework for the management of coastal areas — the Coastal Zone Management Act (CZMA).⁹

This Comment will describe and evaluate the major federal programs affecting the coastal zone. This maze of programs has predictably produced a fragmented regulatory system. While the federal government is gradually moving towards a more coordinated approach to pollution control in the coastal zone, an effective national coastal policy requires the integration of pollution control measures with land use management and preservation programs. Recent developments under the CZMA, however, may offset some of this progress toward the development of an integrated coastal policy.

Pollution Control

Basic Approach

Pollution control programs affecting coastal waters generally involve the uniform application of national standards to point sources of pollutants. The Environmental Protection Agency (EPA) has pursued a permit-by-permit management approach, placing little emphasis on integration of its programs.¹⁰ Under this approach EPA has successfully improved the quality of coastal waters in certain areas of the country.¹¹ The overall quality of coastal waters, however, continues to decline.¹²

The two major statutes governing the discharge of wastes into the coastal environment are the Federal Water Pollution Control Act (FWPCA)¹³ and Title I of the Marine Protection, Research, and Sanctuaries Act (MPRSA).¹⁴ The FWPCA applies to discharges in coastal waters within three miles of shore, while the MPRSA applies to pollution beyond the three-mile limit.¹⁵ Under the FWPCA, EPA administers a technology-based program that is enforced through the national pollutant discharge elimination system (NPDES) permit program. Under FWPCA § 402¹⁶ all facilities that discharge directly into the navigable waters of the United States must obtain an NPDES permit and comply with applicable effluent limitations.¹⁷

Several other programs under the FWPCA affect the quality of coastal waters. The FWPCA mandates the pretreatment of wastes that are discharged into publicly owned treatment works.¹⁸ Pursuant to FWPCA § 303¹⁹ EPA is required to develop water quality-based standards to supplement the technology-based standards. The discharge of dredged and fill material is regulated under FWPCA § 404 through a permit system run by the Army Corps of Engineers.²⁰ The § 404 program is key to the protection of the ecologically valuable wetlands found in the coastal zone.²¹ The 1987 amendments to the FWPCA established a program to address nonpoint source pollution, which may account for as much as 50 percent of water pollution.²²

Title I of the MPRSA regulates the transportation and disposal of materials in ocean waters.²³ The policy of the MPRSA is to "regulate the dumping of all types of materials into ocean waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare or amenities, or the marine environment, ecological systems, or economic potentialities."²⁴ To implement this policy the MPRSA establishes an ocean dumping permit system run by EPA and the Corps of Engineers. The Corps is authorized to issue permits for dumping of dredged material in ocean waters,²⁵ while EPA is authorized to issue permits for all other material.²⁶ EPA may also designate sites for ocean dumping.²⁷

The federal government has also sought to minimize the harm to coastal environments caused by releases from oil tankers. The Ports and Waterways Safety Act (PWSA)²⁸ regulates the operation of ships in the nation's ports and waterways. The PWSA was enacted concurrently with the FWPCA to promote vessel safety and protection of the marine environment from oil tanker pollution.²⁹

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Steps Toward Integration

Both Congress and the relevant federal agencies have recognized the shortcomings in the current approach to pollution control efforts in coastal waters. EPA has stated:

The multitude of laws, authorities and agencies on the Federal, state and local level with programs affecting the near coastal water environment has led to some administrative problems and insufficiencies with regard to managing near coastal water degradation. The lack of interagency coordination, conflicting or overlapping agency programs and responsibilities, and the creation of single-purpose and reactive programs with few integrated goals for managing the near coastal water environment — these problems exist to some extent within and outside EPA. Furthermore, no national policy exists for protecting or improving near coastal waters.³⁰

Recent actions by Congress and EPA have moved us closer to a coordinated national policy for regulating coastal water quality.

Waterbody management: The application of uniform national pollution control standards is often not enough to address the diverse range of ecological problems facing different areas of the coastal zone. Certain coastal water-bodies can be more effectively managed under a site-specific approach. The federal government has recognized this and has developed several programs for site-specific waterbody management.

EPA's National Estuary Program (NEP) is one of the few federal programs that uses an ecosystem approach to pollution control. Initially conceived as an EPA initiative under the authority of FWPCA § 104(n)³¹ and other statutes, the NEP was recognized by Congress and expanded in the Water Quality Act of 1987.³² The NEP, as it now stands, calls for the convening of management conferences³³ to develop comprehensive management plans for estuaries of national significance.³⁴ The management conferences may be convened by EPA on its own initiative or upon recommendation of the governor of any state.³⁵ Among the criteria EPA must consider before convening a conference are the estuary's ecological significance and the degree to which comprehensive planning may contribute to the wise use of the estuary.³⁶ The management plan can be designed to maintain existing conditions, restore a selected historical level of water quality or living resources, or maintain pristine conditions. The plan must provide for control of both point and nonpoint pollution, protection of living resources, implementation of sound land use practices, control of fresh water input and removal, and anti-degradation policies for pristine areas.³⁷

The Water Quality Act of 1987 also formally establishes federal programs to coordinate ongoing efforts to clean up the Chesapeake Bay and the Great Lakes. The Chesapeake Bay is the nation's largest estuary. It supports an abundance of marine life and a highly productive commercial fishing industry. Drastic declines in marine life and water quality prompted the establishment of the Chesapeake Bay Program in 1976, a joint state-federal effort to study the Bay's ecosystem and implement a plan to improve its water quality.³⁸ New FWPCA § 117³⁹ directs EPA to continue the Bay Program and to establish an Office of Chesapeake Bay Programs to coordinate efforts to clean up the Bay.

New FWPCA § 118⁴⁰ formally establishes a comprehensive program to address the pollution problems of the Great Lakes. The Act authorizes EPA's existing Great Lakes Program Office to carry out the United States' responsibilities under the Great Lakes Water Quality Agreement of 1978, and establishes a monitoring system with an emphasis on toxic pollutants.⁴¹ The Program Office is also required to develop a five-year plan for reducing nutrients and to perform a five-year study for control and removal of toxic pollutants.⁴²

Two other provisions of the FWPCA authorize the development of waterbody management plans. FWPCA § 208⁴³ authorizes state and local governments to establish areawide waste treatment management plans. Section 208 was EPA's major program to control nonpoint pollution prior to the 1987 FWPCA amendments.⁴⁴ FWPCA § 303(e)⁴⁵ requires states to establish water quality management [17 ELR 10407] plans for watershed basins and requires § 208 plans to be consistent with these plans. Several states have used funding under these provisions to develop regional plans, but have achieved only limited success.⁴⁶

EPA's Near Coastal Water Initiative: EPA launched its Near Coastal Water Strategic Planning Initiative in 1985 to develop a 10-15 year strategic plan to improve the agency's management of coastal water quality.⁴⁷ The initiative's goal is to maintain and, where possible, enhance near coastal water quality.⁴⁸

EPA has identified six categories of activities it will pursue to help achieve this goal.⁴⁹ First, it will focus its existing regulatory and management tools on near coastal water quality.⁵⁰ Second, EPA will improve its scientific knowledge. Third, EPA will improve its information gathering techniques. Fourth, EPA will explore innovative approaches, including the development of pilot programs for toxic and nonpoint pollution control. Fifth, EPA will formalize the program by developing operating guidance and intra- and interagency coordination plans. Sixth, the agency will establish a clearinghouse to exchange information on effective state and local efforts and will educate interested parties about its initiatives.

NOPPA: The National Ocean Pollution Planning Act (NOPPA)⁵¹ was enacted in 1978 to coordinate federal research and monitoring of ocean and coastal resources.⁵² The federal approach to ocean pollution research, like the federal approach to pollution control in ocean and coastal waters, was fragmented.⁵³ NOPPA therefore designated the National Oceanic and Atmospheric Administration (NOAA) as the lead federal agency to prepare and implement a comprehensive plan for federal ocean pollution research and monitoring.⁵⁴

Land Use Management Under the CZMA

Overview

The CZMA is the one federal law with the potential to establish a comprehensive framework for the management of land and water uses in the coastal zone.⁵⁵ The CZMA was enacted in 1972 in response to the growing recognition of the value of the coasts and the failure of state and local governments to effectively manage their coasts.⁵⁶ Congress declared a national policy "to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations."⁵⁷

To implement this policy, the CZMA created a voluntary program to encourage states to exercise their own authority to establish and implement state coastal management programs (CMPs). State CMPs must be approved by NOAA and must meet various minimum standards.⁵⁸ The CMPs are subject to continuing federal review.⁵⁹

The CZMA provides two strong incentives for states to participate. First, the Act provides for financial assistance to help coastal states develop⁶⁰ and implement⁶¹ CMPs. Second, CZMA § 307⁶² requires that federal activities affecting the coastal zone be "consistent" with approved CMPs. Four types of federal activities are subject to consistency review under § 307: activities directly undertaken by federal agencies, including development projects;⁶³ activities requiring federal licenses or permits;⁶⁴ outer continental shelf (OCS) exploration, and development and production plans;⁶⁵ and federal assistance to state and local governments.⁶⁶ Thus, Congress not only provided funding for state CMP development, but also gave states a measure of control over federal actions affecting their coastal zones.⁶⁷

Federal activities "directly affecting"⁶⁸ the coastal zone must be consistent with state CMPs to the "maximum extent [17 ELR 10408] practicable."⁶⁹ Federal agencies are required to determine whether their activities directly affect state CMPs and whether they are consistent with the CMPs.⁷⁰ Disputes over whether a direct federal activity is subject to consistency review may be submitted to the Secretary of Commerce for nonbinding mediation.⁷¹

The other three categories of federal activities — private activities requiring federal permits, OCS exploration or development plans, and federal assistance — must be "consistent" with state CMPs⁷² if they "affect" land or water uses in the coastal zone. A permit applicant must certify that the proposed activity is consistent with the state CMP. If the state objects to the applicant's certification the applicant may appeal to the Secretary of Commerce. The Secretary may set aside the state's consistency objection if he finds that the activity is "consistent with the objectives" of the CZMA or is "otherwise necessary in the interest of national security."⁷³

CZMA Under Attack

States have accomplished much under the CZMA. Twenty-nine of the 35 eligible coastal states and territories currently have federally approved CMPs.⁷⁴ NOAA has concluded that the consistency process has generally worked well.⁷⁵ States have concurred with a large majority of federal activities in their coastal zones.⁷⁶ Most state objections have been resolved through negotiations between the state and federal agency involved.⁷⁷ However, the role of the states in this unique system of coastal federalism, and thus the essence of the CZMA itself, is under attack on several fronts. First, the Reagan Administration has attempted to eliminate federal funding of state CMPs. Second, the Administration and others have gone to court to attempt to limit the scope of the state's authority to directly regulate private activity in their coastal zones. Third, the Administration has sought to limit the states' authority to review federal actions for consistency with their CMPs.

Funding: The Administration has opposed reauthorization of the CZMA and has attempted to eliminate funding for state CMPs. While Congress did reauthorize the CZMA in 1986, it reduced the level of federal funding. The 1986 CZMA amendments⁷⁸ reduced the percentage of federal grants to states for the costs of administering their CMPs from 80 percent to 50 percent by fiscal year 1989.⁷⁹ Unless states can replace these federal funds, their ability to administer their CMPs will suffer.⁸⁰

State authority to directly regulate private activity: The Administration has sought to limit state authority under the CZMA primarily because it opposes efforts by some states to use their authority to block energy production and other industries affecting their coasts.⁸¹ The President has directed NOAA to review state CMPs to "advance the national interest in energy security."⁸² The directive requires NOAA to attempt to reduce the regulatory burden on energy development, especially OCS oil and gas development.⁸³ This has led to an increased scrutiny by NOAA of CMP provisions that restrict energy development.⁸⁴

The Administration has also taken a strong interest in cases involving state authority to directly regulate private activity in the coastal zone.⁸⁵ Several recent cases have helped define the limits of state authority. In Norfolk Southern Corp. v. Oberly⁸⁶ the Third Circuit ruled on the limits the Commerce Clause places on state coastal regulation. The Supreme Court helped define state authority on federal lands located in the coastal zone in California Coastal Commission v. Granite Rock Co.,⁸⁷ and placed new restrictions on state power to impose conditions on [17 ELR 10409] development in the coastal zone without working a taking in Nollan v. California Coastal Commission.⁸⁸

In Norfolk Southern, the Justice Department argued that a provision of Delaware's CMP that barred construction of a coal "top-off" facility in the Delaware Bay violated the Commerce Clause.⁸⁹ This facility would enhance the nation's coal-exporting capability by enabling large coal-carrying ships, which cannot come to shore, to sail to foreign ports with a full load. The Delaware Coastal Zone Act (DCZA),⁹⁰ which was incorporated as part of Delaware's federally approved CMP, prohibits all new heavy industry in the coastal zone, including bulk transfer facilities.⁹¹ Norfolk Southern Corporation filed suit asserting that the application of the DCZA's ban to its top-off facility violated the Commerce Clause. Delaware asserted that the ban was immunized from Commerce Clause review because it was part of an approved CMP.⁹²

The Third Circuit, reversing the district court,⁹³ held that state regulation under CMPs is not immunized from Commerce Clause challenges, since Congress did not unambiguously consent to otherwise unconstitutional state action in enacting the CZMA. The court rejected the district court's conclusion that the CZMA would be rendered a nullity if state CMP regulation is required to conform to the Commerce Clause, observing that not all state regulation that affects interstate commerce is unconstitutional.⁹⁴

Providing a concrete example of this observation, the court held that the Delaware ban does not violate the Commerce Clause. The court rejected Norfolk Southern's claim that the ban discriminates against interstate commerce and is thus subject to strict scrutiny. The court found strict scrutiny inappropriate because the CMP regulates an intrastate activity in a wholly nondiscriminatory manner — it does not benefit in-state business over out-of-state business in the same market.⁹⁵ The court held that a deferential standard of review is also not warranted because this standard has never been applied to nondiscriminatory environmental statutes.⁹⁶ Applying a mid-level balancing test, the court held that the Delaware ban passes constitutional scrutiny because it imposes no burden that discriminates against out-of-state interests. The burden claimed by Norfolk Southern, the prevention of a new mode of export that would further national objectives by lowering the average transportation costs for coal exporters, is not a legally relevant burden, since it must be shouldered by any coal transporter regardless of state affiliation.⁹⁷

Norfolk Southern clears the way for Commerce Clause challenges to state CMPs. However, it established a difficult test for finding a burden on interstate commerce. As long as CMP provisions do not give unfair advantage to in-state economic interests in the same market, CMP provisions that restrict development should be able to withstand Commerce Clause scrutiny.

The Supreme Court's decision in Nollan was one of three major takings cases decided by the Court during its 1986 term.⁹⁸ The Court held that the California Coastal Commission's decision to issue a beachfront building permit only if the landowners granted an easement to allow public access across their beach, which is located between two public beaches, constituted a taking without just compensation.⁹⁹ The Court acknowledged that a state may impose permit conditions on development without working a taking if the refusal to issue the permit would not constitute a taking.¹⁰⁰ The Court then imposed a new nexus requirement for state land use regulation: there must be a nexus between the conditions placed on development and the original purpose of the development restriction.¹⁰¹ The Coastal Commission argued that the purpose behind the development restriction, to enhance public access to the beaches, was adequately connected to the easement condition, since the construction of a new building would create a psychological barrier to access. The Commission asserted that the building, along with other coastal development, would block the public's view of the beach and thus make the public less likely to use the beach. The Court held, however, that the development condition did not serve the same purposes as the development ban.¹⁰²

The Supreme Court's trilogy of takings cases will encourage states to more carefully tailor their regulation of private property in the coastal zone. Landowners have more ammunition for challenges to state land use regulation that affects their property.¹⁰³ States must take care when placing conditions on development that they could validly prohibit altogether under their police power. Any development condition must serve the same legitimate public purpose as the ban on the development.

In Granite Rock, the Court analyzed the scope of a state's regulatory authority over private activity on federal [17 ELR 10410] land physically located in the coastal zone.¹⁰⁴ The Court held that the Coastal Commission's requirement that a mining company obtain a state permit for its mining claims in a national forest was not preempted by Forest Service regulations, federal public land statutes, or the CZMA. The Court first held that the Forest Service regulations on unpatented mining claims in national forests do not indicate any intention to preempt state law.¹⁰⁵ The Court next held that federal public land statutes¹⁰⁶ do not preempt the Coastal Commission's permit requirement.¹⁰⁷ The Court distinguished between land use planning and environmental regulation,¹⁰⁸ and assumed, without deciding, that the federal statutes preempt state land use planning in national forests. However, reasonable state environmental regulation of unpatented mining claims in national forests is not preempted.¹⁰⁹ Finally, the Court ruled that the CZMA does not automatically preempt all state regulation of private activities on federal land, even if federal lands are excluded from the CZMA definition of coastal zone.¹¹⁰

On the broad federalism issue Granite Rock ensures that states will continue to have a role in the regulation of federal land. However, it offers little clarification on the scope of state authority over federal land in the coastal zone or elsewhere.¹¹¹ The decision also offers little guidance on the issue of whether state authority under the CZMA to regulate private activity on federal lands is limited to consistency review or extends to direct regulation. The Court assumed, without deciding, that state land use planning is preempted and did not reach the issue of whether federal land is excluded from the coastal zone under CZMA § 304(a).

State consistency authority: The Reagan Administration has also sought to limit state authority to review federal activities affecting their coastal zones for consistency with state CMPs. States have sought to apply the consistency process to a growing number of federal activities.¹¹² The federal government has responded with at least three arguments to limit state consistency authority.

First, the Justice Department has attempted to extend the reasoning of the Supreme Court's decision in Secretary of the Interior v. California.¹¹³ In that case the Court held that OCS oil and gas lease sales are not subject to consistency review under CZMA § 307(c)(1). The decision was ambiguous about the applicability of the consistency provisions to other federal activities outside the coastal zone.¹¹⁴ NOAA has interpreted this decision narrowly. Following the decision, it amended its regulations to state that, while OCS oil and gas leases are not subject to consistency review, other federal activities outside the coastal zone are subject to review.¹¹⁵ The Justice Department, however, has since asserted that only federal or federally permitted activities that take place in the coastal zone are subject to consistency review.¹¹⁶

Second, the Justice Department has argued that other federal statutes preempt state consistency authority. The Justice Department has argued that the Ocean Dumping Act preempts consistency review of an ocean incineration permit¹¹⁷ and that the Outer Continental Shelf Lands Act preempts California from exercising its consistency authority over OCS development projects on the basis of air quality concerns.¹¹⁸

Third, the oil and gas industry, with the support of the Justice Department, has asserted that economic impacts cannot trigger consistency review. In Exxon Corp. v. Fischer¹¹⁹ a district court agreed with this contention. The court held that the California Coastal Commission lacked authority under the CZMA to issue a consistency objection to a proposed OCS oil and gas exploration plan based on its effect on marine resources located outside the coastal zone or on its economic impact on the commercial fishing industry. The court ruled that the economic interests of a single industry do not constitute effects on a land use in the coastal zone.¹²⁰

Preservation and Study

A number of federal laws and programs provide for the preservation or study of coastal areas. As a group, these programs can play an important role in a national coastal [17 ELR 10411] policy by easing development pressures in ecologically valuable areas of the coastal zone.

Coastal Barrier Resources Act¹²¹

Coastal barriers are islands, spits, or bay barriers that protect the mainland and landward aquatic habitats from direct attack by ocean waves and wind. Besides serving as natural storm buffers, coastal barriers provide wildlife habitat and support a variety of recreational activities.¹²² Barriers are generally unsuitable for development because they are constantly shifting and are vulnerable to hurricane and storm damage. Many coastal barriers are nevertheless threatened by overdevelopment. As sand dunes are leveled and structures erected, the natural process of barrier migration becomes a problem of erosion.¹²³ Barriers can then often only be saved by progressively more drastic engineering solutions, such as sea walls and jetties. Several federal programs have contributed to overdevelopment, including flood insurance, Army Corps of Engineer development projects, and grants for highways, bridges, and sewer and water systems.¹²⁴

Congress passed the Coastal Barrier Resources Act in 1982 to remove these federal incentives. The Act prohibits the expenditure of most federal funds promoting development on the "undeveloped coastal barriers"¹²⁵ included in the Coastal Barrier Resources System.¹²⁶ The Act removes federal subsidies and places the burden of financial risk on private developers, but it does not prohibit private development on land in the System. It is therefore likely that development on coastal barriers within the System will continue and that development pressures will increase on barriers not included in the System.¹²⁷

Marine Sanctuaries Program

Title III of the MPRSA¹²⁸ established the Marine Sanctuaries Program to provide a comprehensive approach to the conservation and management of marine areas of special environmental value.¹²⁹ Congress recognized that the nation has historically protected special areas in the public domain, but that these efforts have been confined to land areas such as national parks, forests, and wildlife refuges. The Marine Sanctuaries Program extends this protection to the marine environment.¹³⁰ Title III requires the Secretary of Commerce to consider a number of factors in designating marine sanctuaries, including the area's natural resource and ecological qualities, its historical and archaeological significance, current uses of the area, existing state and federal regulatory authority, and the area's ability to be identified as a discrete ecological unit that will allow comprehensive and coordinated management.¹³¹

Estuarine Sanctuaries Program

Section 315 of the CZMA established the National Estuarine Sanctuary Program. This program is narrower in scope than the Marine Sanctuaries Program, focusing mainly on research. The goal of the CZMA estuarine program is to establish a national system of representative estuarine sanctuaries and to establish long-term research and educational programs.¹³² Any coastal state, including those that do not have approved CMPs, are eligible for grants to acquire and manage sanctuaries.¹³³ NOAA evaluates proposed estuarine sanctuaries based on their importance for research, among other factors.¹³⁴ NOAA coordinates both the estuarine and marine sanctuary programs. Marine and estuarine sanctuaries may not overlap, but may be adjacent.¹³⁵

Other programs

The federal government's traditional role in coastal management has been the acquisition of public land.¹³⁶ Congress has established a series of national seashores¹³⁷ and lakeshores¹³⁸ that are run by the National Park Service. The Fish and Wildlife Service manages a series of national wildlife refuges in coastal areas.¹³⁹

Conclusion

Congress and the federal agencies have recognized the special value and vulnerability of the nation's coasts. Numerous statutes and programs have been directed at specific coastal problems without enough thought being given to their effect on an overall coastal policy. This process has produced a fragmented coastal policy. EPA has recognized the need for a coordinated approach and has begun to integrate its coastal water pollution control programs.

An effective national coastal policy, however, requires greater coordination of pollution control efforts with land use management and preservation programs. Efforts to control coastal pollution without accompanying land use management will be an uphill struggle against ever-increasing population and development. The CZMA is the [17 ELR 10412] key to land use management in the coastal zone. The Reagan Administration's efforts to limit the CZMA's consistency provisions to federal activity within the geographical boundaries of the coastal zone should be rejected by the courts and ultimately by Congress.¹⁴⁰ Further weakening of state authority under the CZMA will lead to less effective land use management and will hinder progress toward an integrated national coastal policy.

1. Examples of coastal population increases include the Florida coast, where 3-4000 people a week settled during 1985, and Maryland's Chesapeake Bay region, where population increased by 50 percent between 1950 and 1980. Coastal States Organization, Impact of Federal Budget Cuts on State Coastal Programs (1985) (press release). More than half of the U.S. population lives within an hour's drive of a seashore, lakeshore, or coastal area. That figure could rise to 80 percent by the year 2000. COASTAL STATES ORGANIZATION, AMERICA'S COASTS: PROGRESS & PROMISE 4 (1985).

2. Coastal water fisheries are a multi-billion dollar industry. The National Marine Fisheries Service predicts that demand for commercial fish products will increase from 5.4 million metric tons in 1982 to 6.7 million in 1990. OFFICE OF MARINE AND ESTUARINE PROTECTION, ENVIRONMENTAL PROTECTION AGENCY, NEAR COASTAL WATERS STRATEGIC OPTIONS PAPER I-3 (Aug. 12, 1986) [hereinafter NEAR COASTAL WATERS OPTIONS PAPER].

3. The Department of the Interior released its five-year outer continental shelf (OCS) oil and gas leasing program for 1987-1992 on April 27, 1987. The plan is designed to slow the pace of leasing by lengthening the period between sales in most areas from two to three years and by focusing on promising acreage. The plan has nevertheless drawn sharp criticism from environmental groups and some members of Congress from coastal states. See 25 Air/Water Pollution Rep. 208 (May 25, 1987).

4. The short-term economic outlook appears bleak for mineral mining on the ocean floor. OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, MARINE MINERALS: EXPLORING OUR NEW OCEAN FRONTIER (1987).

5. The quality of coastal waters is generally declining. See OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, WASTES IN MARINE ENVIRONMENTS 7-8 (1987) [hereinafter WASTES IN MARINE ENVIRONMENTS]; NEAR COASTAL WATERS OPTIONS PAPER, supra note 2, at I-24.

6. At least 21 federal programs run by several federal agencies affect coastal waters. NEAR COASTAL WATERS OPTIONS PAPER, supra note 2, at I-23. One oil company spokesman has testified that his company had to deal with 66 federal, state, county, and local agencies before it could begin an OCS oil and gas drilling operation off the California coast. Oversight Hearings on Coastal Zone Management Act Before the Subcomm. on Oceanography of the House Comm. on Merchant Marine and Fisheries, 100th Cong., 1st Sess. (May 19, 1987).

7. For example, overfishing in coastal waters led to passage of the Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882; the increased pace of oil and gas exploration on the OCS led to passage of the Outer Continental Shelf Lands Act Amendments of 1978, 43 U.S.C. §§ 1801-1866; and the anticipated use of deepwater ports for energy support facilities led to passage of the Deepwater Port Act, 33 U.S.C. §§ 1501-1524.

8. See, e.g., Clean Air Act, 42 U.S.C. §§ 7401-7642, ELR STAT. 42201; Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, ELR STAT. 44001. CERCLA provides for the recovery by the federal and state governments of damages to natural resources, including coastal resources, caused by the release of hazardous substances. CERCLA § 107(a), 42 U.S.C. § 9607(a), ELR STAT. 44024. The Department of the Interior has recently issued regulations for the assessment of damages to natural resources in coastal and marine environments. 52 Fed. Reg. 9042 (Mar. 20, 1987) (to be codified at 43 C.F.R. § 11).

9. 16 U.S.C. §§ 1451-1464, ELR STAT. CZMA 001.

10. NEAR COASTAL WATERS OPTIONS PAPER, supra note 2, at I-24.

11. For example, EPA has successfully coordinated programs to reduce eutrophication in Lake Erie and San Francisco Bay and to reduce pathogen contamination in Oregon, Connecticut, and New Jersey. Id. at E-1.

12. See supra note 5.

13. 33 U.S.C. §§ 1251 et seq.

14. 33 U.S.C. §§ 1401-1445. Title I is commonly called the Ocean Dumping Act.

15. The FWPCA applies to discharges into the navigable waters of the United States. This includes discharges in the territorial sea, which extends three miles from the coastline. See FWPCA § 502(8), 33 U.S.C. § 1362(8). The FWPCA also applies to discharges from point sources other than vessels in ocean waters beyond the three-mile territorial sea. The MPRSA covers the dumping of waste from vessels beyond the three-mile limit and the dumping of dredged material from vessels within the territorial sea. See WASTES IN MARINE ENVIRONMENTS, supra note 5, at 4.

16. 33 U.S.C. § 1342.

17. EPA may delegate authority to enforce the NPDES permit program to the states. FWPCA § 402(b), 33 U.S.C. § 1342(b).

18. FWPCA § 307(b), 33 U.S.C. § 1317(b).

19. 33 U.S.C. § 1313.

20. 33 U.S.C. § 1344. In addition, § 10 of the Rivers and Harbors Act prohibits the construction of facilities in navigable waters without a permit from the Corps of Engineers. 33 U.S.C. § 403.

21. The Supreme Court upheld the Corps of Engineers' broad assertion of jurisdiction under FWPCA § 404 over wetlands in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 16 ELR 20086 (1985).

22. Water Quality Act (WQA) § 316(a), FWPCA § 319, 101 Stat. 52 (1987) (to be codified at 33 U.S.C. § 1329). For a detailed discussion of the 1987 FWPCA amendments, see Liebesman & Laws, The Water Quality Act of 1987: A Major Step in Assuring the Quality of the Nation's Waters, 17 ELR 10311 (Aug. 1987).

23. The MPRSA defines ocean waters as "those waters of the open sea lying seaward of the base line from which the territorial sea is measured." MPRSA § 3(b), 33 U.S.C. § 1402(b).

24. MPRSA § 2(b), 33 U.S.C. § 1401(b).

25. MPRSA § 103, 33 U.S.C. § 1413.

26. MPRSA § 102, 33 U.S.C. § 1412.

27. MPRSA § 102(c), 33 U.S.C. § 1412(c).

28. 33 U.S.C. §§ 1221-1232.

29. See Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 14 ELR 20305 (9th Cir. 1984). See also Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1901-1911 (enabling legislation to the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL) and the Protocol of the 1978 International Convention on Tanker Safety and Pollution Prevention (MARPOL Protocol)).

30. NEAR COASTAL WATERS OPTIONS PAPER, supra note 2, at I-24.

31. 33 U.S.C. § 1254(n).

32. WQA § 317(b), FWPCA § 320, 101 Stat. 61 (1987) (to be codified at 33 U.S.C. § 1329). See OFFICE OF MARINE AND ESTUARINE POLICY, ENVIRONMENTAL PROTECTION AGENCY, NEAR COASTAL WATERS IMPLEMENTATION THEMES AND ACTIVITIES (Feb. 22, 1987) [hereinafter NEAR COASTAL WATERS IMPLEMENTATION THEMES AND ACTIVITIES]. See also Liebesman & Laws, supra note 22, at 10327.

33. Members of the management conferences include representatives of EPA and other federal agencies, each state and foreign nation in which the estuary is located, local governments, affected industries, and the general public. WQA § 317(b), FWPCA § 320(c), 101 Stat. 61 (1987) (to be codified at 33 U.S.C. § 1329(c)).

34. WQA § 317(a), 101 Stat. 61 (1987).

35. WQA § 317(b), FWPCA § 320(a)(2)(A), 101 Stat. 61 (1987) (to be codified at 33 U.S.C. § 1329(a)(2)(A)).

36. H.R. CONF. REP. NO. 1004, 99th Cong., 2d Sess. 147 (1986). EPA must give priority consideration to 11 estuaries. WQA § 317(b), FWPCA § 320(a)(2)(B), 101 Stat. 61 (1987) (to be codified at 33 U.S.C. § 1329(a)(2)(B)).

37. NEAR COASTAL WATERS IMPLEMENTATION THEMES AND ACTIVITIES, supra note 32. EPA is currently conducting studies of six estuaries. The agency plans to complete two draft plans and inititate one new estuary program by fiscal year 1988 and to initiate new programs in fiscal year 1989.

38. The study, authorized by the 1975 EPA appropriation bill, was completed in 1983 after nearly seven years. See Eichbaum, The Chesapeake Bay: A Major Research Program Leads to Innovative Implementation, 14 ELR 10237 (June 1984). Officials from Maryland, Pennsylvania, Virginia, the District of Columbia, and the federal government then formed the Chesapeake Bay Executive Council. The Council issued a plan in 1985 outlining strategies for cleaning up the Bay. The Council recently agreed to draft a regional plan to reduce the amount of wastes introduced into the Bay by 40 percent by the year 2000. Melton, Strong Regional Pact Reached to Clean Bay, Washington Post, Aug. 7, 1987, at C1.

39. WQA § 103, FWPCA § 117, 101 Stat. 10 (1987) (to be codified at 33 U.S.C. § 1267).

40. WQA § 104, FWPCA § 118, 101 Stat. 11 (1987) (to be codified at 33 U.S.C. § 1268).

41. Id.

42. Id.

43. 33 U.S.C. § 1288.

44. The WQA authorizes $400 million for four years for states to develop nonpoint source pollution management programs. WQA § 316, FWPCA § 319, 101 Stat. 52 (1987) (to be codified at 33 U.S.C. § 1329).

45. 33 U.S.C. § 1313(e).

46. Problems have included disagreements between state and local officials over authority, discontinuity in federal funding, inadequate technical information on nonpoint pollution, and delays by EPA in issuing rules. WASTES IN MARINE ENVIRONMENTS, supra note 5, at 155.

47. NEAR COASTAL WATERS OPTIONS PAPER, supra note 2, at I-24.

48. Id. at II-1.

49. NEAR COASTAL WATERS IMPLEMENTATION THEMES AND ACTIVITIES, supra note 32.

50. These tools include assessments of point source discharges into coastal waters; reviewing NPDES permit classification priorities to give high priority to coastal dischargers; conducting enforcement studies in coastal areas; increasing inspections; revising the CERCLA hazard ranking system to give more priority to coastal impacts; coordinating with its toxic substances and pesticides programs; coordinating with its wetlands program; using its national estuary program to integrate its approach to toxics and nonpoint source pollution problems; and reviewing effluent guidelines for industries discharging into coastal waters.

51. 33 U.S.C. §§ 1701-1709.

52. A bill has been introduced to reauthorize NOPPA for two years. S. 1487, 100th Cong., 1st Sess., 133 CONG. REC. S9706 (daily ed. July 10, 1987). The bill would also authorize $285 million in fiscal year 1988 and $296 million in fiscal year 1989 for NOAA's ocean and coastal programs.

53. See NOPPA § 2(a)(4), 33 U.S.C. § 1701(a)(4).

54. NOPPA § 2(b)(1),(4), 33 U.S.C. § 1701(b)(1), (4).

55. The CZMA defines the coastal zone as extending seaward to the limits of the three-mile-wide territorial sea and landward "only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters." CZMA § 304(1), 16 U.S.C. § 1453(1), ELR STAT. CZMA 003.

56. See CZMA § 302(h), 16 U.S.C. § 1451(h), ELR STAT. CZMA 002.

57. CZMA § 303(1), 16 U.S.C. § 1452(1), ELR STAT. CZMA 002.

58. The program's requirements are spelled out in the statute and NOAA regulations. CZMA § 305(2)(b), 16 U.S.C. § 1454(2)(b), ELR STAT. CZMA 005; 15 C.F.R. § 923 (1986).

59. CZMA § 312, 16 U.S.C. § 1458, ELR STAT. CZMA 020; 15 C.F.R. 928 (1986).

60. CZMA § 305, 16 U.S.C. § 1454, ELR STAT. CZMA 005.

61. CZMA § 306, 16 U.S.C. § 1455, ELR STAT. CZMA 007.

62. 16 U.S.C. § 1456, ELR STAT. CZMA 010.

63. CZMA § 307(c)(1),(2), 16 U.S.C. § 1456(c)(1),(2), ELR STAT. CZMA 010. Federal activities include "any functions performed by or on behalf of a Federal agency in the exercise of its statutory responsibilities." 15 C.F.R. § 930.31(a) (1986). A federal development project is a federal activity "involving the planning, construction, modification, or removal of public works, facilities, or other structures, and the acquisition, utilization, or disposal of land or water resources." 15 C.F.R. § 930.31(c) (1986).

64. § 307(c)(3)(A), 16 U.S.C. § 1456(c)(3)(A), ELR STAT. CZMA 010. For example, applicants for dredge and fill permits under FWPCA § 404 or ocean dumping permits under MPRSA § 102 must certify that the proposed activity will be consistent with the state CMP.

65. CZMA § 307(c)(3)(B), 16 U.S.C. § 1456(c)(3)(B), ELR STAT. CZMA 010.

66. CZMA § 307(d), 16 U.S.C. § 1456(d), ELR STAT. CZMA 011.

67. At least one commentator is skeptical as to the extent of this control. See Chasis, The Coastal Zone Management Act: A Protective Mandate, 25 NAT. RESOURCES J. 21, 29 (1985).

68. The meaning of this phrase has been unclear since the Supreme Court's opinion in Secretary of the Interior v. California, 464 U.S. 312, 14 ELR 20129 (1984). See infra notes 113-16 and accompanying text.

69. CZMA § 307(c)(1), 16 U.S.C. § 1456(c)(1), ELR STAT. CZMA 010. Direct federal activities must be fully consistent with CMPs unless compliance is prohibited by other existing laws. A federal agency may deviate from full consistency because of unforeseen circumstances arising after approval of a CMP. 15 C.F.R. § 930.32 (1986).

70. 15 C.F.R. § 930.33 (1986).

71. 15 C.F.R. § 930.36 (1986).

72. CZMA § 307(c)(3)(A), (c)(3)(B), (d), 16 U.S.C. § 1456(c)(3)(A), (c)(3)(B), (d), ELR STAT. CZMA 010, 011. Note that these three categories of federal activities must be "consistent" with state CMPs, while direct federal activities must be "consistent to the maximum extent practicable." Federal activities falling into these three categories may not deviate from full consistency under any circumstances. Once a state objects to a consistency certification for these activities, the federal agency is prohibited from issuing the permit or releasing the funds unless the Secretary of Commerce overrides the objection. 15 C.F.R. § 930.65 (1986).

73. CZMA § 307(c)(3)(A), 16 U.S.C. § 1456(c)(3)(A), ELR STAT. CZMA 010. See also 15 C.F.R. § 130.120-130.134.

74. States have made substantial progress in managing their coasts under the CZMA. States have, among other things, managed coastal development, restored urban waterfronts, protected natural resources, improved public access, and streamlined permitting procedures. COASTAL STATES ORGANIZATION, AMERICA'S COASTS: PROGRESS & PROMISE 6 (1985).

75. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE, FEDERAL CONSISTENCY STUDY — DRAFT (1985) [hereinafter CONSISTENCY STUDY].

76. In fiscal year 1983 states ultimately concurred with 96 percent of the 750 direct federal activities reviewed; 98 percent of the approximately 5,000 federal permits reviewed; 97 percent of the over 200 OCS plans reviewed; and 99 percent of the over 1200 federal assistance activities reviewed under § 307(d). CONSISTENCY STUDY, supra note 75, at II-2.

77. Id.

78. Pub. L. No. 99-272, 100 Stat. 124 (1986).

79. CZMA § 306(a), 16 U.S.C. § 1455(a), ELR STAT. CZMA 007.

80. For example, states may be forced to cut back staffing, curtail planning efforts by local governments that depend on states for funding, and eliminate public participation programs. Coastal States Organization, Impact of Federal Budget Cuts on State Coastal Programs (1985) (press release).

81. For example, Delaware has incorporated into its CMP a law that prohibits all new heavy industry in the coastal zone. 7 DEL. CODE. ANN. § 7003 (Supp. 1986). The California Coastal Commission has filed several consistency objections to OCS oil and gas development plans off its coast. See CONSISTENCY STUDY, supra note 75, at II-50.

82. Office of the Press Secretary, White House, Statement by Deputy Press Secretary (June 6, 1986).

83. NOAA has announced its intent to undertake a special study of state CMPs in response to the presidential directive. 52 Fed. Reg. 12579 (Apr. 17, 1987).

84. For example, NOAA issued a draft evaluation of California's CMP on August 20, 1987 threatening to withhold federal funds unless the California Coastal Commission adopts specific, predictable standards for review of offshore oil drilling. California Coastal Commission Chairman Michael Wornum responded that NOAA's evaluation is a "smokescreen for theirreal objective — opening the California coast to unfettered oil development." 25 Air/Water Pollution Rep. 348 (Aug. 31, 1987). See also Eichenberg and Archer, The Federal Consistency Doctrine: Coastal Zone Management and "New Federalism," 14 ECOLOGY L.Q. 9, 12 (1987).

85. The Justice Department has filed amicus briefs in various CZMA cases to attempt to define the outer limits of state authority. See, e.g., notes 89, 116-17 and accompanying text.

86. 822 F.2d 388, 17 ELR 20941 (3d Cir. 1987).

87. 107 S. Ct. 1419, 17 ELR 20563 (1987).

88. 107 S. Ct. 3141, 17 ELR 20918 (1987).

89. Brief for United States As Amicus Curiae in Support of Appellants, Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 17 ELR 20941 (3d Cir. 1987) (No. 86-5322).

90. 7 DEL. CODE ANN. § 7003 (Supp. 1986).

91. The Delaware Supreme Court had previously held that the top-off facility was a bulk transfer facility and thus barred by the DCZA. Coastal Barge Corp. v. Coastal Zone Industrial Control Board, 492 A.2d 1242 (Del. 1985).

92. Norfolk Southern, 822 F.2d at 392, 17 ELR at 20943.

93. Norfolk Southern Corp. v. Oberly, 632 F. Supp. 1225, 17 ELR 20714 (D. Del. 1986).

94. Norfolk Southern, 822 F.2d at 398, 17 ELR at 20946 (3d Cir. 1987).

95. Norfolk Southern, 822 F.2d at 400, 17 ELR at 20947. The court rejected Norfolk Southern's argument that the Delaware statute is subject to strict scrutiny because it allegedly favors the tourism and fishing industries, which are a large part of Delaware's economy, while restricting heavy industry. The court noted that a state's choice between competing land uses does not implicate the Commerce Clause simply because the alternative chosen is in the state's economic interest, as long as the choice does not discriminate between in-state and out-of-state competitors in the same market.

96. Id. at 405, 17 ELR at 20950.

97. Id. at 406, 17 ELR at 20951.

98. In Keystone Bituminous Coal Association v. DeBenedictis, 107 S. Ct. 1232, 17 ELR 20440 (1987), the Court held that the subsidence provisions of the Pennsylvania Bituminous Mine Subsidence Act do not on their face violate the Takings Clause. In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S. Ct. 2378, 17 ELR 20787 (1987), the Court ruled that land use regulations can constitute a taking even where the taking is temporary, and monetary compensation must be available for a temporary taking. See McGinley, Regulatory "Takings": The Remarkable Resurrection of Economic Substantive Due Process Analysis in Constitutional Law, 17 ELR 10369 (Sept. 1987).

99. Nollan v. California Coastal Commission, 107 S. Ct. 3141, 17 ELR 20918 (1987).

100. Id., 17 ELR at 20921.

101. Id.

102. Id.

103. See Kusler and Meyers, The Takings Issue and Land Regulation in the U.S. Supreme Court, 9 NAT'L WETLANDS NEWSL. July-Aug. 1987, at 9.

104. California Coastal Commission v. Granite Rock Co., 107 S. Ct. 1419, 17 ELR 20563 (1987). For a detailed discussion of the implications of this case, see Fairfax and Cowart, Judicial Nationalism vs. Dual Regulation on Public Lands: Granite Rock's Uneasy Compromises, 17 ELR 10276 (July 1987).

105. Granite Rock, 17 ELR at 20566.

106. Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-1782, ELR STAT. 41458 and the National Forest Management Act, 16 U.S.C. §§ 1600-1676, ELR STAT. 41433.

107. Granite Rock, 17 ELR at 20566.

108. Id. at 20567. The Court stated that "[l]and use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits."

109. Id. at 20567. The Court concluded that Coastal Commission's assertion that it would use the permit requirement to impose reasonable environmental regulation and not to ban the mining was sufficient to rebuff Granite Rock's facial challenge to the permit requirement.

110. CZMA § 304(1) excludes from the coastal zone "lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers, or agents." 16 U.S.C. § 1453(1), ELR STAT. CZMA 003.

111. See Fairfax and Cowart, supra note 104, at 10287.

112. See FEDERAL CONSISTENCY STUDY, supra note 75.

113. 464 U.S. 312, 14 ELR 20129. For a detailed discussionof the case, see Reed, Supreme Court Beaches Coastal Zone Management Act, 14 ELR 10161 (Apr. 1984).

114. See Reed, supra note 113, at 10164.

115. 15 C.F.R. § 930.33 (1986).

116. See, e.g., Motion for Summary Judgment, North Carolina v. Hudson (E.D.N.C. July 7, 1987) (No. 84-36-CIV-5), in which the Justice Department argued that a Corps of Engineers' FWPCA § 404 permit was not subject to consistency review because the activity was located outside the coastal zone.

117. Memorandum in Support of Motion to Dismiss and in Response to Plaintiff's Motion for Summary Judgment, Chemical Waste Management, Inc. v. United States Department of Commerce (D.D.C. Mar. 6, 1986) (No. 86-624).

118. Oversight Hearings on Coastal Zone Management Act Before the Subcomm. on Oceanography of the House Comm. on Merchant Marine and Fisheries, 100th Cong., 1st Sess. (May 19, 1987) (testimony of Sarah Chasis of the Natural Resources Defense Council).

119. 17 ELR 20286 (C.D. Cal. Oct. 11, 1985), rev'd on other grounds, 807 F.2d 842, 17 ELR 20416 (9th Cir. 1987).

120. The Ninth Circuit reversed the district court on other grounds, holding that the oil company was estopped from challenging the validity of the Commission's objection because of the Secretary of Commerce's dismissal of its administrative appeal of the objection. Exxon Corp. v. Fischer, 807 F.2d 842, 17 ELR 20416 (9th Cir. 1987).

121. 16 U.S.C. §§ 3501-3510, ELR STAT. 41731.

122. See J. WELLS & C. PETERSON, RESTLESS RIBBONS OF SAND — ATLANTIC & GULF COASTAL BARRIERS (1987).

123. Id.

124. Id.

125. Coastal Barrier Resources Act § 3(1), 16 U.S.C. § 3502(1), ELR STAT. 41731.

126. The Department of the Interior has recommended that the system be greatly expanded. DEPARTMENT OF THE INTERIOR, REPORT TO CONGRESS: COASTAL BARRIER RESOURCES SYSTEM (1987) [hereinafter REPORT TO CONGRESS].

127. See Platt, Congress and the Coast, 27 ENV'T July/Aug. 1985, at 12. Preliminary research indicates that those units of the System that were experiencing heavy development pressure prior to enactment of the Act have continued to develop despite loss of federal financial support. REPORT TO CONGRESS, supra note 126, at 20.

128. 16 U.S.C. §§ 1431-1434.

129. MPRSA § 301(a)(3), 16 U.S.C. § 1431(a)(3).

130. "Marine environment" includes coastal and ocean waters and submerged lands over which the United States exercises jurisdiction. MPRSA § 302(3), 16 U.S.C. § 1432(3).

131. MPRSA § 303(b)(1), 16 U.S.C. § 1433(b)(1).

132. CZMA § 315(b), 16 U.S.C. § 1461(b), ELR STAT. CZMA 020.

133. CZMA § 315(e), 16 U.S.C. § 1461(e), ELR STAT. CZMA 020.

134. 15 C.F.R. § 921.11(c) (1986).

135. 15 C.F.R. § 921.4 (1986).

136. See REPORT TO CONGRESS, supra note 126, at 12.

137. See, e.g., Fire Island National Seashore Act, 16 U.S.C. § 459e.

138. See, e.g., Indiana Dunes National Lakeshore Act, 16 U.S.C. § 460w.

139. 16 U.S.C. § 668dd.

140. Legislation has been introduced in Congress to clarify the scope of the CZMA's consistency provisions. A House bill would amend CZMA § 307(c)(1) to clarify that federal agency activities conducted outside the coastal zone are subject to consistency review if the activity "directly affects" the coastal zone. The bill provides that a federal agency activity "directly affects" the coastal zone if it either "produces identifiable physical, biological, social, or economic consequences in the coastal zone" or "initiates a chain of events likely to result in any of such consequences." H.R. 1876, 100th Cong., 1st Sess., 133 CONG. REC. H1714 (daily ed. Mar. 31, 1987). A Senate bill would amend CZMA § 307(c)(1) to require federal agency activities "significantly affecting the natural resources or land or water uses in the coastal zone" to be consistent with state CMPs. S. 1412, 100th Cong., 1st Sess., 133 CONG. REC. S8467 (daily ed. June 23, 1987).