6 ELR 50047 | Environmental Law Reporter | copyright © 1976 | All rights reserved

The Promise of Federal Consistency Under § 307 of the Coastal Zone Management Act

The Center for Natural Areas is a non-profit corporation specializing in environmental management from an inter-disciplinary perspective. The Center has offices in Washington, D.C., South Gardiner, Maine and Los Angeles, California.

[6 ELR 50047]

This article represents an anticipatory exercise in analytic environmental law. It is anticipatory in the sense that the Coastal Zone Management Act of 1972 (hereafter referred to as CZMA) has yet to have an on-the-ground impact on land and water use decisions in the nation's coastal areas. Thus, this article is designed to facilitate understanding of how that Act will function once the state programs created pursuant to it are implemented, as well as to illustrate the potentials and pitfalls for the states that may lie hidden in its statutory structure.

Because the CZMA contains a number of provisions designed to result in federal accommodation to state interests, it can be viewed as a unique attempt to provide the states with leverage over the activities of federal agencies. Moreover, these provisions represent one of the fundamental incentives offered to the states to implement their CZM plans, which are now in the process of being developed. Consequently, the article begins with an assessment of the provisions of the Coastal Zone Management Act in general, and proceeds to outline the federal-state coordinative mechanisms of the Act in particular. The heart of these coordinative mechanisms are the Federal consistency provisions of § 307, and these are analyzed in detail. A section of the article also explains the exceptions to the consistency provisions written into the Act.

In Part II the focus of the article shifts to an analysis of § 404 of the Federal Water Pollution Control Act Amendments of 1972 (FWPCA) and to the recent implementing regulations of the United States Army Corps of Engineers that have expanded the scope of the program. The 404 program is analyzed because dredge or fill permits can exert considerable impact upon coastal areas, and it is the type of federal program over which the federal consistency provisions are likely to have some of their most noticeable effects. This article therefore concludes by correlating the regulations of the Corps of Engineers with the federal consistency provisions, in an attempt to assess what impact the federal consistency requirements will have on the 404 program, and vice versa.

Since all of the nation's coastal states have applied for and received federal grants to develop CZM programs, these states will have to decide, in the near future, whether or not to implement their CZM programs. One of the major facrors influencing the states' decisions will be the amount of leverage that the federal consistency provisions will provide over federal activities after the CZM programs are implemented. Thus, this article explores an essential consideration for those states currently in the development stage of their coastal zone management programs, for it details the various federal-state coordinative mechanisms in the CZMA and provides some answers as to precisely how much control over federal activities the Act will provide to the states. It also provides an assessment of how a specific federal program might be affected by or affect the federal consistency provisions, once the states have implemented their CZM programs. In a broader sense, the correlation between the federal consistency provisions and the 404 program serves to illustrate how those provisions may affect other federal programs and activities relating to the coast.

While this study is essentially aimed at explaining how the provisions of the CZMA relate to a specific federal program, the dredge and fill regulation under § 404 of the FWPCA, it also is fundamentally concerned with the problems inherent in providing workable programs within our federal system. The operative relationship between the federal government and the states has historically been an area too often neglected by both legal commentators and the designers of federal programs. The CZMA, however, which nominally seeks to encourage states to exercise their constitutional powers over land and water uses in their coastal zones, is directly concerned with the problems of federal-state interaction (to say nothing of state-local interaction). As a result, experience with it may indicate how best to maximize the capabilities of the federal government and the states to exert control over land and water resources. In the present political climate, where the prospects for national land use legislation have faded as a result of fears of federal involvement in an area historically reserved to the states (and delegated to localities, and in which there has been a growing emphasis on the part of national legislators to return control of federally-sponsored programs to the state level, the success or failure of the coastal zone management program could very well rest on its ability to provide workable solutions to the problem of federal-state relations. More significantly, the ability of the various state CZM programs to arrive at a working balance between federal and state interests may well determine the prospects for future legislative and administrative efforts designed to control the allocation of the nation's land and water resources.

I. The Coastal Zone Management Act of 1972

The Coastal Zone Management Act¹ was signed into [6 ELR 50048] law on October 27, 1972, "to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations."² The reasons behind the Act are outlined in the Senate Commerce Committee Report accompanying the Senate's coastal zone management bill, which was substantially adopted by both Houses:

1. the extensive degradation of highly productive estuaries and marshes;

2. burgeoning populations in coastal areas (53% of the U.S. population lived within 50 miles of the coasts in 1970), with resulting demands for commercial, residential, and recreational development;

3. the fact that 70% of the nation's commercial fishing takes place in coastal areas; and

4. the fact that most estuarine areas equal or double the food production rates of the best upland agricultural areas, and are 15-20 times more productive than ocean waters.³

The CZMA establishes a federal grant-in-aid program for coastal states to encourage the development⁴ and support the administration⁵ of land and water management programs within defined coastal zones.⁶ The Act defines the states' coastal zones as:

the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes transitional and intertidal areas, salt marshes, wetlands, and beaches. The zone extends in Great Lakes waters, to the international boundary between the United States and Canada and, in other areas, seaward to the outer limit of the United States territorial sea. The zone extends inland only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters. Excluded from the coastal zone are 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.⁷

State management programs created pursuant to the CZMA are to be designed "to achieve [the] wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values, as well as to the needs for economic development."⁸ The Act vests responsibility for administering the program in the Secretary of Commerce,⁹ who delegated his responsibilities to the Administrator of the National Oceanic and Atmospheric Administration (NOAA). The Administrator, in turn, established the Office of Coastal Zone Management (OCZM) to ensure that the provisions of the Act are carried out. OCZM's role is to encourage and assist the states in developing their programs, to coordinate state activities, and to safeguard regional and national interests in the coastal zone.¹⁰

The CZMA, in line with the "new federalism" of the Nixon Administration, attempts to focus federal efforts on the adequacy of state processes, rather than reviewing the merits of specific land and water use decisions. The Act therefore does not seek to create a uniform national regulatory scheme regarding the use of the coastal zone. Instead, it seeks to foster the establishment of state coastal zone plans within certain minimum national criteria. Eligible states¹¹ are not required to apply for federal funds to develop a management program, and there are no federal sanctions if a state chooses not to participate.¹² The voluntary nature of the Act is illustrated in the congressional finding that [6 ELR 50049] the key to a more effective protection and use of the land and water resources of the coastal zone is to encourage the states to exercise their full authority over the land and waters in the coastal zone by assisting the states, in cooperation with Federal and local governments and other vitally affected interests, in developing land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance.¹³

One of the more noteworthy aspects of the CZMA is its emphasis upon placing ultimate responsibility over specific land and water use decisions, matters that traditionally have been delegated to local entities, at the state level.¹⁴ The Senate Commerce Committee Report reveals that this was done basically for two reasons. The first was the number of complex issues involved in managing the coastal zone, including its fragile ecological nature and its economic importance. The Senate Report points to a "sharp contrast" between land use within the coastal zone and land use in other areas. The Report notes that this "sharp contrast" is a result of a unique contest between public and private interests brought about by the great number of people living in coastal areas, an abundance of jurisdictional overlaps, and pressures for commercial and industrial development: "the fact is that the waters and the narrow strip of land within the coastal zone is where the most critical demands, needs, and problems presently exist."¹⁵

The second reason for placing primary responsibility at the state level involved a basic lack of confidence in the ability of local governments to deal adequately with the complex issues mentioned above. The Senate Report states:

At present local governments do possess considerable authority in the coastal zone. However, frequently their jurisdiction does not extend far enough to deal fully and effectively with the land and waters problems in that zone. Additionally, there have been numerous examples of commercial development taking precedence over the protection of land and waters in the coastal zone. There has been an understandable need to create new revenues to provide governmental services demanded by a growing population, thus creating pressures for commercial, residential, and other economic development.¹⁶

The Report therefore concluded that the states should serve as the fulcrum of the program:

The Committee has adopted the States as the focal point for developing comprehensive plans and implementing management programs in the coastal zone. It is believed that the States do have the resources, administrative machinery, enforcement powers, and constitutional authority on which to build a sound management program.¹⁷

Although the primary focus of the CZMA is on the state level, the states may choose to implement their programs through any one or all of the following techniques: by establishing criteria and standards for local implementation (subject to state administrative review); by direct state planning; or by state review of all local plans, projects, and regulations.¹⁸

While the CZMA is designed to allow the states a significant amount of latitude in the way in which their management programs approach the problems of the coastal zone, there are nevertheless a number of requirements with which each state must comply before its program can be approved by the Secretary of Commerce (hereinafter referred to as the Secretary). Section 305 requires the state to identify the boundaries of its coastal zone¹⁹ and permissible land and water uses within that zone, along with the constitutional, legislative, or regulatory means by which it will exert its responsibility over those uses.²⁰ The state must also conduct an inventory and designate areas of particular concern,²¹ and establish guidelines on priorities of uses in particular areas.²² Section 306 requires the state to provide for adequate consideration of the "national interest" in the siting of facilities.²³ It also requires that the state establish procedures to designate areas of significant conservation, recreational, ecological, or esthetic value for the purposes of preservation [6 ELR 50050] or restoration.²⁴ Finally, § 306 requires that the state provide a method of assuring that local land and water use regulations in the coastal zone do not unreasonably restrict or exclude land and water uses of regional benefit.²⁵

Although there are no requirements that coastal states participate in the CZMA grant-in-aid program, the Act does provide incentives to encourage the participation of the states in the national program. Robert W. Knecht, the Director of the Office of Coastal Zone Management, has stated that the incentives fall basically into two categories:

… financial assistance in the form of grants-in-aid and, perhaps more importantly in the long run, the promise that Federal actions will be consistent with state programs once they are completed, implemented, and approved at the Federal level.²⁶

The first incentive, federal funding, is available both for the development and the administration of state programs. The federal government will match every dollar that the states spend with two.²⁷ OCZM currently has an annual budget of approximately $15 million, although a proposed amendment to the Act would increase federal funding more than ten-fold.²⁸ Thus far, the incentive provided by federal funding has led every eligible state to apply for and receive a development grant.²⁹ Only one state, however, has succeeded in having its program receive final approval, and thus there has been only one administrative grant awarded.³⁰

The second incentive mentioned by Mr. Knecht — the assurance that federal actions will be consistent with approved state programs — appears to be a novel approach to federal-state relations that promises federal accommodation to state interests. The question of how well and in what manner this promise will be fulfilled is treated in a succeeding section of this article.

A. Federal-State Coordination and Cooperation in Program Development

Federal activities exert an enormous influence over the land and water uses of the coastal zone. In many west coast states, such as Alaska, the federal government owns a considerable portion of coastal lands.³¹ In addition, the federal government regulates many activities, such as offshore mineral development, onshore licensing of many energy facilities, and issuance of dredge or fill permits, which have a significant impact upon the states' ability to manage the land and water uses of their coastal zones. A state that wishes to plan comprehensively for and to effectively control these uses cannot ignore the role of the federal government or the number of opportunities for coordinated planning offered by the CZMA.

Essentially, the Act provides for federal-state coordination both before and after a state has received federal approval of its management program. After the program has been approved, federal-state relations are governed primarily by what are referred to as the federal consistency provisions. The subject of this section concerns the cooperative and coordinative mechanisms that operate before a state's program has received federal approval. Put another way, these mechanisms come into play while a state is receiving a § 305 development grant. As the following discussion illustrates, these meachanisms must be effectively employed by the states or their CZM programs may be denied federal approval on the ground of failing to adequately involve interested federal agencies. And if a state fails to receive federal approval of its program, the second incentive referred to by Mr. Knecht, the promise that all federal activities in the coastal zone will be consistent with an approved state CZM program, will not be realized.

Coordination before a state's program is approved is basically a two-step process. The first step involves the requirement of § 306(c)(1) that "relevant Federal agencies," be afforded "the opportunity of full participation" [6 ELR 50051] in the development of the state's program.³² It should be emphasized that the statute does not require participation by federal agencies, only the opportunity for it. However, as interpreted by OCZM, the "opportunity of full participation," is defined as "requiring participation at all appropriate stages of management program development."³³

The second step of federal-state cooperation occurs after the state's program has been submitted to the Secretary for federal approval. Section 307(b) states that "the Secretary shall not approve the management program … unless the views of Federal agencies principally affected have been adequately considered." OCZM has construed "principally affected agencies" to mean "relevant agencies."³⁴ Section 307(a) further provides that "the Secretary shall consult with, cooperate with, and, to the maximum extent practicable, coordinate his activities with other interested Federal agencies." OCZM's regulations state that if a state's program that is submitted for federal approval appears to comply with the criteria established for federal approval,³⁵ the Administrator of NOAA will prepare a draft environmental impact statement and forward it, along with a copy of the state's management program, to each relevant federal agency for review and comment.³⁶ Only after these comments have been received and a final environmental impact statement prepared can the state's program receive federal approval.

Although §§ 307(b) and 307(a) relate to the Secretary's actions with regard to other federal agencies, all three sections can be viewed as exerting pressure on the states to consult and cooperate with federal agencies in the development of their CZM programs at the risk of having their programs disapproved for failure to provide federal agencies with "an opportunity for full consideration" or to "adequately consider" their views. The latter requirement is not defined in the Act itself or in the implementing regulations. The regulations merely state that:

the state agency and a relevant Federal agency shall establish and shall maintain throughout the development of the program such relationship and communications with one another as will enable each to be fully informed of the other's views in relation to the program as it is developed.³⁷

It is true that neither the Act, nor the regulations, require that the states acquiesce to federal views — only that federal agencies be given a full opportunity to express their views in the development of state programs. However, § 306(c)(8) of the CZMA requires that before the Secretary of Commerce can approve any state's program, he must find that the program provides "for adequate consideration of the national interest involved in the siting of facilities necessary to meet requirements which are other than local in nature."³⁸ OCZM's regulations stress that this does not compel state programs to accommodate these facilities (which include energy production and transmission facilities), only that the programs not "arbitrarily exclude or unreasonably restrict" them "without good and sufficient reasons."³⁹ The regulations, however, do require that the agency drafting a state program determie the needs for these facilities, enter into discussions with appropriate federal agencies and agencies of other states, and refer to federal agency views on how national energy needs may be met in that state's coastal zone.⁴⁰ Thus, although the states are not compelled to site "national interest" facilities in their coastal zones, depending on how the Secretary interprets "arbitrarily exclude or unreasonably restrict" and "good and sufficient reasons," there could be substantial pressure upon the states to accommodate such facilities in their CZM programs.

The Act establishes procedures for mediation in the event of disagreements between the states and federal agencies in the development of the states' programs. These procedures, as amplified in OCZM's regulations,⁴¹ essentially provide that if OCZM is not able to resolve the disagreement, both the Administrator and the Office of Management and Budget (OMB) will be given the opportunity to resolve the problem. While it does not seem unreasonable to give the Administrator an opportunity to resolve "serious disagreements" between the states and a federal agency, one must wonder why the regulations establish OMB, an agency not noted for its expertise or sophistication in federal-state relations, as the final arbiter of the dispute. One also wonders about the ability of a state to bargain on an equal footing with a particular federal agency when it knows that the OMB, an office concerned almost exclusively with the problems of the federal bureaucracy and the White House, in the end holds the trumps. The principal federal agencies have had decades to develop working relationships with OMB and its predecessor, the Bureau of the Budget, and have acquired knowledge of how the agency operates. On the other hand, the states have had little time to learn the rules of the game. If either the state or the federal agency refuses to accept OMB's recommendations, the regulations provide that:

… the Administrator shall determine the extent to [6 ELR 50052] which the inclusion in the state program of the state agency's position in the disagreement would affect his ability to approve the state program.⁴²

Moreover, if reconciliation efforts fail, the Administrator has the authority to deny federal approval of the state's program.

The promise that states with approved programs will have the assurance that all federal activities in their coastal zones will be consistent with their CZM programs would seem to be meaningless if a state and the relevant federal agencies do not stand at least at arm's length in determining the scope of the state's program. If a federal agency can ensure that its interests are fully protected in the formulation of a state's program, the impact of the federal consistency provisions will be considerably weakened. Put another way, if a federal agency can determine, for all intents and purposes the shape of a state's program as it relates to particular federal activities (such as OCS leasing and nuclear power plant siting) on which state and federal interests tend to diverge, it then would be able to thwart one of the primary purposes of the CZMA — federal accommodation to the states' interests. And since it is possible that a state could be denied federal approval of its program for resisting federal encroachment in the design of its program, the promise of federal consistency could prove hollow indeed.

B. Federal Consistency After Program Approval

While the thrust of federal-state coordination before a state's program is approved is aimed at applying pressure on the states to accommodate federal activities and interests once approval has been granted,⁴³ the thrust of the CZMA, at least on the surface, is toward ensuring federal accommodation to the states' programs. This accommodation is accomplished through the provisions of § 307, which collectively may be referred to as the federal consistency provisions.

OCZM has not yet published regulations implementing these provisions, possibly because until recently no state had received federal approval of its program, but more probably due to the complex and novel task of providing for federal accommodation to state interests.⁴⁴ OCZM has, however, recently compiled a preliminary analysis of the federal consistency provisions as an aid to the states in interpreting their effects.⁴⁵

The first federal consistency provision, § 307(c)(1), states that:

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.⁴⁶

OCZM has interpreted this clause to include only those federal activities conducted or supported for federal purposes.⁴⁷ Neither the language of the Act nor its legislative history makes clear what a "conducting or supporting activity" is, let alone what activities are conducted primarily for federal, as opposed to state purposes.⁴⁸ Significantly, and unlike the other consistency provisions, the language of this section appears to include federal activities taking place at the time a state's program receives federal approval, as well as future activities.⁴⁹

The key words in this provision are "directly affecting." This language indicates that the scope of the required consistency is not limited to activities taking place within the defined coastal zone. Instead, consistency would attach to activities taking place outside the boundaries of the coastal zone as long as they "directly affect" it.

[6 ELR 50053]

Relying on the legislative history of this section, OCZM has interpreted the phrase "to the maximum extent practicable,"⁵⁰ as follows: if there is an "unforeseen circumstance" at the time of federal approval that would make total consistency impractical in the context of either disproportionate costs or inconvenience to the federal agency in relation to the amount of benefit to the states' programs or the purposes of the Act, total consistency is not required. Thus, it would be possible for a federal agency, under OCZM's interpretation, to comply with a state's program by demonstrating something less than total consistency, or as OCZM describes it, "substantial consistency."⁵¹ Regrettably, there is no clear indication in the statute or the legislative history who determines what constitutes "substantial consistency" (or "total consistency," for that matter). This may prove to be a crucial determination, for if, as appears likely, the individual federal agencies are given the responsibility of ascertaining whether their activities are "substantially consistent" with the states' programs, it is probable that the amount of consistency that this provision provides will be less than if the states were to make the decision. Moreover, since federal agencies are not generally under an enforceable duty to conduct long-range, comprehensive planning,⁵² it is possible that the number of "unforeseen circumstances" that could trigger the application of the "substantial consistency" standard may prove to be quite numerous.

Mention should be made of exactly what "consistency" (either total or substantial) means in terms of the states' coastal zone programs. While it is true that a federal activity falling within the ambit of any of the four consistency provisions must demonstrate substantive compliance with a state's program, the legislative history of the CZMA appears to indicate that, at least with respect to the first two consistency provisions, it was the intent of Congress not to require federal agencies to comply with state processes and procedures which apply to non-federal activities.⁵³ Arguably, these consistency requirements merely provide the states with the opportunity to make an after-the-fact review of federal activities to ensure compliance with their programs. What this could do, however, is effectively eliminate the states' ability to plan for land and water uses in their coastal zones at least as far as federal activities are concerned, since they would be limite to reacting to federal initiatives.

It should also be noted that the issue of whether federal facilities must be in procedural, as well as substantive, compliance with state programs adopted pursuant to the FWPCA and Clean Air Act is currently before the Supreme Court.⁵⁴ Since state CZM plans are required to incorporate the standards established under these Acts,⁵⁵ the Court's decision could require procedural compliance of federal facilities and activities with CZM plans at least to the extent they reflect air and water quality standards. However, the decision will not directly affect the ability of the states to require procedural compliance of federal activities where those activities do not relate to air and water quality concerns.

If all that is required of federal agencies is self-policed compliance with substantive standards rather than full procedural compliance,⁵⁶ the efforts of states to influence land and water uses in their coastal areas by providing incentives and disincentives in their management programs may be ineffective with respect to federal activities. Thus, even if the states determine what federal activities are consistent or "substantially consistent" with their CZM programs, all they could do would be to approve or disapprove federal activities on an ad hoc basis. This distinction between substantive and procedural compliance should be kept in mind throughout the discussion of the consistency provisions.

The second consistency provision, § 307(c)(2), is similar to the first. It states that:

Any Federal agency which shall undertake any development project in the coastal zone shall insure that the project is, to the maximum extent practicable, consistent with approved state management programs.⁵⁷

The language "shall undertake" obviously refers only to the future, not projects existing at the time of federal approval of a state's program. This section is applicable only to "Federal development projects," interpreted by OCZM to mean a direct undertaking by a federal agency [6 ELR 50054] of any construction project.⁵⁸ Additionally, the provision pertains only to projects within the coastal zone. This means two things. Projects that take place on certain federal lands are excluded — since these lands are specifically excluded from the definition of a state's coastal zone by § 304(a).⁵⁹ And second, unlike the first consistency provision, consistency does not attach to projects taking place outside of the coastal zone but "directly affecting" it. Furthermore, the language "shall insure" appears to leave to federal agencies the discretion to determine whether their projects have complied with this consistency requirement. Additionally, the type of consistency required, "to the maximum extent practicable," provides the opportunity to comply by demonstrating "substantial consistency" as in the first consistency provision.

Reading the first two consistency provisions together, it appears that it may be difficult to determine whether a federal activity falls under either one provision or the other or both, since there is no statutory definition of a "development project."⁶⁰ Yet whether a federal activity (for instance, federal activities associated with outer continental shelf oil and gas development) falls within the scope of "conducting or supporting activities" or "development projects" coult determine whether or not consistency attaches. This is due to the fact that a "development project" must be consistent with a state's program only if it is within the boundaries of the coastal zone and not underway at the time that the state's program receives federal approval. Federal activities falling within the "conducting or supporting" provision, on the other hand, need not be within the coastal zone (for example, they could take place on excluded federal lands) and may pre-date state program approval and still be required to be consistent, if they meet the "directly affecting" test. Conversely, it is possible that "conducting and supporting" activities may not be required to be consistent, even if they take place within the coastal zone and are subsequent to state program approval, if they only "indirectly affect" the coastal zone.

Thus, there are several basic difficulties in interpreting these two provisions. First, the lack of authoritative definitions makes it hard to determine the difference between a "conducting and supporting" activity and a "development project."⁶¹ The lack of definitions also makes it difficult to discern what the differences may be between activities which "directly affect" the coastal zone and those which merely affect it. In addition, it is difficult to determine what might fulfill the "substantial compliance" exception under the "to the maximum extent practicable" test.

Another basic difficulty is that the Act does not clearly indicate who is to make these determinations, a failing that has not yet been clarified by OCZM regulations on the consistency provisions. The second consistency provision's language of "shall insure," however, suggests that the federal agencies may be vested with this responsibility. The Conference Committee Report on the CZMA seems to support this interpretation:

… as to Federal agencies involved in any activities directly affecting the state coastal zone and any Federal participation in development projects in the coastal zone, the Federal agencies must make certain that their activities are to the maximum extent practicable consistent with approved state management programs.⁶²

Thus, it is significant that the Conference Committee deleted language contained in the Senate's bill that would have explicitly authorized the states to determine the consistency of "development projects"⁶³ because it could be argued that the Conference Committee had the issue of who was to determine consistency before it, and decided to grant this discretion to the federal agencies.

In addition, unlike the third and fourth consistency provisions, which remain to be discussed, there is no statutory means provided for administratively resolving disputes that may arise between the state and federal agencies over the scope of the first two provisions. Until OCZM (or OMB if political realities are to be faced) promulgates regulations on the consistency provisions, it appears that the only effective means of resolving this question in particular instances may be through litigation.

The third federal consistency provision, § 307(c)(3), is quite lengthy and concerns federal licenses and permits. It reads:

After final approval by the Secretaru 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 shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the state's approved program. At the same time, the applicant shall furnish to the state or its designated agency a [6 ELR 50055] 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 fails to furnish the required notification within six months after the 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.⁶⁴

There are several things to be noted about this provision. First, it is applicable only to federal licenses and permits and only to those issued after federal approval of a state's program. The Senate Commerce Committee Report states that this provision was intended to cover "any applicant for a Federal license or permit to conduct any new activity…."⁶⁵ Significantly, in terms of outer continental shelf mineral leasing, there is no mention of federal leases, although the proposed amendments to the CZMA, recently agreed to by the conferees of both Houses, would extend federal consistency to plans for outer continental shelf mineral development.⁶⁶ OCZM, however, has suggested the possibility that leases could be interpreted as being within the scope of the present provision.⁶⁷

Second, the test of whether consistency is required is whether the permit or license would "affect" the coastal zone. This test differs from the first consistency provision's "directly affecting" standard and would appear to require something less than a "direct effect." However, neither the Act itself nor the legislative history indicates what might constitute an activity "affecting" the coastal zone, and how this might differ from an activity "directly affecting" it.⁶⁸

Third, the requirement of consistency in this provision, unlike the preceding provisions, is not qualified by the language of "to the maximum extent practicable." Thus, "substantial consistency" seemingly would not suffice here. Fourth, the provision requires public notice in all cases and public hearings if a state wishes to hold them. Fifth, inaction on the part of a state will be conclusively presumed to indicate concurrence.

In contrast to the first two consistency provisions, this section's requirement that "no license or permit shall be granted by the Federal agency until the state … has concurred with the applicant's certification" appears to leave the initial determination of what is consistent with the state's program in the hands of the state, rather than with the applicable federal agency.

The final and most noticeable aspect of this provision pertains to the power of the Secretary of Commerce to override a state's veto of a project, after an appeal by the applicant or upon his own initiative. First, the Secretary may override if he finds the activity to be consistent with the objectives of the CZMA. Since the objectives of the Act are set forth in § 303's declarations of policy,⁶⁹ it is quite likely that the Secretary's decision to override could be based upon a state's failure to give full consideration "to the needs for economic development," as required by § 303(b).⁷⁰ If this is true, the Secretary would have the opportunity to determine the ultimate balance between ecological, cultural, historic, and esthetic values and pressures for economic development, at least where a federal license or permit is involved.

Second, the Secretary may override a state's veto if he believes that the permit or license is "necessary in the interest of national security." There is no definition of what types of activities might be considered to be "necessary in the interest of national security," and this determination appears to be left largely to the discretion [6 ELR 50056] of the Secretary. It is possible, however, that the national security mentioned here might tie in with the requirement of § 306(c)(8) that a state's program provide for adequate consideration of the national interest in facilities siting.⁷¹ If, for example, national energy needs are interpreted to fall within the national security definition, the Secretary would then have the opportunity to make the final decision on an energy-related activity, at least where the federal agency wished to grant the permit and the state disagreed.

The recent sale of outer continental shelf mineral leases in the Gulf of Alaska by the Secretary of the Interior over the objections of the state of Alaska (as well as the Environmental Protection Agency, the Council on Environmental Quality, and a number of other federal agencies) serves to illustrate the kind of situation where this provision would come into play. Assuming that the provision can be interpreted to include leases (as OCZM suggests it could⁷²) or is expanded to cover leases by the proposed amendment to the CZMA, and assuming that the state of Alaska had received federal approval of its CZM program prior to the sale, the applicants for the leases would have had to certify to the state that their applications were in compliance with the state's program. If the state then determined that the applications were in fact not in compliance and refused to concur in the certification, the Secretary of Interior could not have approved the sale over the state's objections. However, if the applicants appealed to the Secretary of Commerce, or if he decided to review the applications on his own initiative, he could override the state's veto and allow the Secretary of Interior to proceed with the lease sale. The Commerce Secretary could base his decision to override on the grounds that the lease sale was "consistent with the objectives" of the CZMA by reading in § 303(b)'s policy of "giving full consideration … to the needs of economic development." Or he could reach a decision to override on the grounds of "national security" by determining that national energy needs fell within the definition of "national security." It is therefore possible that even if the state of Alaska had an operative CZM plan at the time of the lease sale, and even if this consistency provision were construed or amended to cover leases, the decision to prceed could be made without the state's consent.⁷³

The final federal consistency provision, § 307(d), pertains to applications of state and local governments for federal assistance:

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 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 of Commerce that such project is consistent with the purpose of this title or necessary in the interest of national security.⁷⁴

The word "submitting" indicates that this provision also has prospective application only. The Senate Commerce Committee Report supports this interpretation, stating that "Federal agencies shall not approve proposed projects that are inconsistent with the management program…."⁷⁵ The language "affecting the coastal zone" indicates the same scope of applicability as in the preceding consistency provision. And, as in the preceding provision, there is no "to the maximum extent practicable" language, so the requirement is one of total consistency. It also appears that, as in the case of § 307(c)(3) (and unlike the first two consistency provisions), the state, not the federal agency, will determine, at least in the first instance, what activities are consistent with its program. The language in the Senate Commerce Committee Report supports this interpretation:

Those who seek Federal licenses or permits must receive certification that the proposed project is consistent with the State's management program. The same conditions exist for state and local governments seeking Federal assistance from other sources.⁷⁶

Unlike the third consistency provision, though, there is no explicit statutory language permitting an applicant to appeal the state's veto to the Secretary, although the grounds for the Secretary's override are the same as in § 307(c)(3). OCZM believes, however, that "the mechanics of the appeal would have to be about the same."⁷⁷

The basic difference between § 307(c)(3) and this section is that the former is directed at conflict between a federal licensing or permitting agency and a state's program while the latter deals with an intra-state conflict, [6 ELR 50057] between a state or sub-state unit of government and the state program. Two potential problems with the latter scheme need to be noted here. First, it is not at all clear that consistency would attach to a project that was initiated before the state's CZM program received approval but is to receive a number of additional annual grants-in-aid from a federal agency after the program is approved. For example, if planning programs, such as those created by § 208 of the FWPCA or § 701 of the Housing Act of 1954, as amended,⁷⁸ fall within the coverage of this consistency provision (as opposed to the "conducting or supporting" language of the first provision), it may be that planning activities which take place before the state's CZM plan receives federal approval would not have to be revised so as to become consistent with the CZM plan.⁷⁹ Second, since the statutory language is directed only to state and local governments, it is possible that consistency would not be required of applicants who do not possess full governmental authorities, but who are nevertheless eligible to receive federal funds for projects that could affect the coastal zone.⁸⁰

In terms of the assurance of federal consistency, the latter two consistency provisions, since they attach to permits, licenses, or grants that merely "affect" the coastal zone, seem to be broader in scope than the first two provisions. Moreover, they require total consistency, since the qualifier "to the maximum extent practicable" does not appear. Consistency is not required, however, for permits, licenses, or grants existing at the time a state's CZM program receives federal approval.

In addition, although the latter two consistency provisions appear to vest in the state, rather than a federal agency, the power to determine whether activities are consistent with its program, both provisions permit the Secretary to override the state's veto. This power to override appears to be in direct contradiction to the underlying purposes of federal consistency and could significantly undercut the intent of the Senate Commerce Committee to encourage the states to develop "comprehensive plans … and management programs in the coastal zone."⁸¹ Since the situations in which the Secretary may override — "consistent with the purposes of the Act" or "necessary to the interests of national security" — are rather vague, however, there seems to be as much uncertainty in the scope of federal consistency regarding federal permits, licenses, and grants, as there is with respect to "conducting and supporting" activities and "development projects." As in the case of the first two consistency provisions, one might question whether the incentives offered by the latter two provisions will be sufficient for states to seek federal approval for their programs.⁸²

A final note on the consistency provisions can be made about § 313(a)(5) of the CZMA, which states that in submitting his annual report to the President and the Congress, the Secretary must provide:

A listing of all activities and projects which, pursuant to subsection (c) or subsection (d) of Section 307 [this refers to the consistency provisions outlined above], are not consistent with an applicable state management program.⁸³

In interpreting what was intended by this requirement, OCZM points to the Conference Committee Report on the CZMA, which states that this provision will enable Congress "to take corrective measures as it deems appropriate."⁸⁴ While there is no mention of what these "corrective measures" might entail, it does appear that Congress was at least aware of the complexity of the problems involved in reconciling divergent state and federal interests, and that it was specifically reserving the right either to amend the Act or to take measures to reconcile conflicting federal programs in the future. With the example of the recent lease sale in Alaska in mind, however, it is doubtful that this threat of congressional intervention will provide enough incentive to compel the states and federal agencies to work around their differences in situationswhere the economic and environmental stakes are particularly high, given the variety of interpretations that might be applied to the ambiguities and uncertainties inherent in the federal consistency provisions.

C. Exceptions to the Federal Consistency Provisions

Two exceptions to the federal consistency provisions were written into the CZMA. The first subordinates state CZM programs to future federal land use legislation.⁸⁵ The federal official charged with administering the national land use program must be afforded the opportunity to approve the contents of a state's CZM program as it affects shorelands.⁸⁶ Since the prospects for [6 ELR 50058] national land use legislation do not now appear as bright as they did at the time of the passage of the CZMA, this exception is not of immediate concern.

The second exception to federal consistency subordinates a state's CZM program to the requirements of the FWPCA⁸⁷ and the Clean Air Act (CAA).⁸⁸ Section 307(f) states that the requirements of these acts, including those established by state or local governments, must be incorporated into any approved CZM program, and that nothing in the CZMA "shall in any way affect any requirement" of these two landmark environmental acts.⁸⁹ This exception from the consistency provisions is significant for two distinct reasons. First, rather than weaken the states' position with respect to the activities of federal agencies, it may actually serve to strengthen and expand their ability to require federal actions to comply with their CZM plans.

Second, § 307(f) is extremely important in developing a framework in which to coordinate air and water quality planning with CZM planning. The language of this section and the implementing regulations⁹⁰ indicate that instead of having to conform to the CZM plans, air and water quality plans take precedence over CZM planning, at least to the extent that they incorporate "requirements" of the FWPCA and the CAA.⁹¹ The problem thus becomes one of determining what is meant by the term "requirements." It is possible that the CZMA's definition of those water uses which are to be controlled by CZM plans may in effect define the term "requirements" in § 307(f). Section 304(h) of the CZMA states:

'water use' … does not mean or include the establishment of any water quality standard or criteria or the regulation of the discharge or the runoff of water pollutants except the standards, criteria, or regulations which are incorporated by the provisions of section 307(f).⁹²

Using water quality management plans adopted pursuant to § 208 of the FWPCA as an example, it therefore appears that where 208 plans incorporate water quality standards established by § 303 of the FWPCA,⁹³ regulate the issuance of NPDES permits under § 402,⁹⁴ or control runoff from nonpoint sources,⁹⁵ the 208 plans would fall within § 307(f)'s exception from consistency.⁹⁶ This would not only exempt these aspects of 208 plans from consistency with CZM plans, but might also require modification of the latter plans to accommodate the former.⁹⁷ Uncertainty over the exact scope of the exemption from consistency provided by § 307(f) has thus for prevented EPA and OCZM from reaching a formal agreement to coordinate 208 and CZM planning.⁹⁸

Although not an exception to the federal consistency provisions, § 304(a) contains the potentially most significant diminution of the states' ability to control federal activities within their geographic coastal areas. As mentioned previously,⁹⁹ this section excludes certain categories of federal lands from the definition of the states' coastal zones:

… lands the use of which is by law subject solely to the [6 ELR 50059] discretion of or which is held in trust by the Federal government, its officers or agents.¹⁰⁰

The Conference Committee Report on the CZMA explains the intent of Congress in inserting this exclusion from the definition of the states' coastal zones:

… those lands traditionally managed by the Department of Interior or the Department of Defense, such as parks, wildlife refuges, military reservations, and other areas covered by existing legislation, were specifically excluded from the coverage of the bill.¹⁰¹

The question of exactly which federal lands fall within the excluded federal lands provision is, at present, subject to controversy. OCZM has concluded that the exclusion is not as significant as it might at first appear, contending that the provision is intended to refer only to those lands that the federal government holds through "exclusive legislative jurisdiction."¹⁰² Other categories of federal jurisdiction — those in which the federal government exercises partial or concurrent jurisdiction with a state, or those which it holds by proprietary interest only — should not, in OCZM's view, be excluded from a state's coastal zone. Under this interpretation the vast majority of federal lands would be included within the definition of the states' coastal zones, since, according to a 1962 General Services Administration Report, "An Inventory of Federal Areas Within the States," 728 million of the 765 million acres of federal lands ard held by proprietary interest only.¹⁰³

OCZM's position is largely based on the language of § 304(a), which excludes those lands "subject solely to the discretion of … the Federal government…."¹⁰⁴ OCZM admits that there is no support for its position in the legislative history of the CZMA, since the Conference Committee Report specifically excluded "parks, wildlife refuges, military reservations and other areas covered by existing legislation."¹⁰⁵ The agency may also have a difficult time explaining § 304(a)'s exclusion of lands "held in trust by the federal government," since this appears to indicate something less than an exclusive legislative jurisdiction standard.¹⁰⁶

Because considerable opposition to OCZM's position has been exhibited by the major federal land management agencies, OCZM has requested a ruling from the Attorney General on this issue. Until the Attorney General renders his decision, OCZM has indicated that it will encourage the states to exclude only federal lands held by exclusive legislative jurisdiction. This is the approach taken by the state of Washington in the formulation of its CZM program, which recently became the first state program approved for implementation.¹⁰⁷

If the Attorney General adopts a more expansive definition than OCZM of what federal lands are excluded from the states' coastal zones, the scope of the federal consistency provisions will be diminished in two ways. First, since consistency is required only of federal development projects which are in the coastal zone, the scope of that provision is directly dependent upon the federal lands that are included in the definition of the coastal zone. Second, because the other three consistency provisions apply only when a federal activity either "affects" or "directly affects" the states' coastal zones, if large tracts of federal lands are excluded, it will be more difficult for a state to demonstrate such an effect and thus require consistency with its CZM program. Therefore, states wishing to control comprehensively the land and water uses along their coasts will be better served if the Attorney General adopts a narrow definition of excluded federal lands.

But even if the Attorney General renders a decision contrary to the interests of the states, the Supreme Court's forthcoming decision¹⁰⁸ as to whether federal facilities must be in procedural, as well as substantive, compliance with state programs adopted pursuant to the FWPCA and the CAA could have a considerable impact on the ability of the states' CZM programs to control federal activities. If the Supreme Court determines that procedural compliance is indeed required, those states that have adopted approved air and water quality permit programs pursuant to these statutes would gain a significant amount of leverage over federal activities, even those that take place on excluded federal lands, in view of § 307(f)'s mandate that requirements of these Acts take precedence over CZM plans. Furthermore, this leverage would be more complete than that provided to the states through the federal consistency provisions, since the first two consistency provisions appear at the most to give the states merely an opportunity to make an ad hoc, after-the-fact review of federal activities' impact on the coastal zone.¹⁰⁹ It must [6 ELR 50060] be kept in mind, however, that such a favorable Supreme Court decision, because it turns on specific language in those two statutes, would not increase the ability of the states to control federal activities on excluded federal lands that are unrelated to air and water quality concerns. Thus, the incentive that the promise of federal consistency provides to the states to seek federal approval and implement their CZM programs may still be reduced in proportion to the amount of federal lands that the Attorney General determines are excluded from the definition of their coastal zones.

The relationship between the excluded federal lands provision and the federal consistency provisions is pointed out by OCZM in its study on federal consistency:

The exclusion of Federal land from a state's coastal zone means two things in terms of Federal consistency. First, any Federal activity (in the broad sense) which would be subject to a consistency requirement because, to some degree or other, it affected a state's coastal zone would be exempt from that requirement as regards that effect on Federal lands…. But second, and significantly to the states, any such Federal activity would be subject to the appropriate consistency requirement as regards the effect upon non-Federal land in the state's coastal zone.¹¹⁰

In other words, a federal activity taking place within or without the boundaries of the state's coastal zone, but affecting only excluded federal lands would be exempt from consistency. Conversely, a federal activity, even if it takes place on excluded federal lands (and thus is not, by definition, "in" the coastal zone) is not exempt from the consistency requirements if it would "directly affect" (in the case of the "conducting or supporting activities" of § 307(c)(1)) or "affect" (in the case of licenses, permits, or grants of §§ 307(c)(3) and 307(d)) a state's coastal zone.¹¹¹ The exceptions to this line of reasoning are the federal "development projects" of § 307(c)(2), since this provision contains no "affect" test. Consequently, it seems that federal development projects that take place on excluded federal lands are exempted from any requirement of consistency, even if they have an impact upon lands within a state's defined coastal zone.

II. The Dredge or Fill Permit Program of § 404 of the Federal Water Pollution Control Act

Because the CZMA places a great emphasis on the ability of the states to coordinate with and use the programs of federal agencies in order to achieve comprehensive control over land and water uses affecting the coastal zone, the Act cannot be viewed in isolation.¹¹² Rather, it is necessary to evaluate the Act in the context of those federal programs over which it is likely to have the greatest impact, and which in turn are likely to affect its implementation. Perhaps the more noticeable of these is the dredge or fill permit program established by § 404 of the FWPCA.¹¹³

An understanding of how the 404 program, currently the major federal program regulating development in the nation's wetlands, will affect and be affected by operative CZM plans is important not only for assessing the manner in which the federal consistency provisions will function, but also because the present 404 program may actually serve to increase the ability of the states to control the land and water uses in their coastal zones. This is significant in light of the fact that the House recently passed an amendment which would severely restrict the scope of the 404 program.¹¹⁴ One of the justifications for this amendment is that the regulation of dredge or fill activities should be left to the states, rather than to the federal government. As this article will indicate, however, states with approved CZM programs will effectively control the issuance of 404 permits for activities within their coastal zones. Moreover, the regulations implementing the 404 program provide the states with the opportunity to gain even more control over 404 permit decisions than that which is furnished by the federal consistency provisions.

The primary means of attaining the FWPCA's goal of eliminating the discharge of pollutants¹¹⁵ into the nation's waters by 1985¹¹⁶ is through the EPA-administered National Pollutant Discharge Elimination System (NPDES), established by § 402 of the Act. However, Congress created an exception to the NPDES program in § 404, which provides for the regulation by the Secretary of the Army, acting through the Chief of Engineers, of dredge or fill materials discharged into navigable waters.¹¹⁷ Essentially, § 404 was designed to continue the Corps of Engineers' dredge or fill permit program established by § 10 of the 1899 Rivers and Harbors Act.¹¹⁸ Therefore, the FWPCA created a dually-administered program for pollution permits — Corps [6 ELR 50061] permits for dredge or fill materials and NPDES permits for all other pollutants.¹¹⁹ Although the Corps' program is separated from EPA's, § 404 requires EPA to promulgate guidelines for the Corps concerning disposal criteria¹²⁰ and site evaluations.¹²¹ And EPA has the authority to veto the choice of a disposal site if it determines that the discharge of dredged or fill materials will have an adverse impact upon municipal water supplies, shellfish beds, and fishery areas, wildlife, or recreational areas.¹²²

One fundamental difference between the two programs is that only EPA has the authority to delegate the administration of the NPDES program to states that develop programs capable of carrying out the purposes of the FWPCA. There is no provision for the Corps to make such a delegation in § 404.

Since the FWPCA increased federal jurisdiction considerably beyond the limits of navigability to all "waters of the United States,"¹²³ a question quickly arose as to whether Congress intended to enlarge the scope of the Corps' dredge or fill permit program beyond the traditional limits of the navigational servitude, or whether it intended only the NPDES permit program to apply to all "waters of the United States." In interpreting the language of § 502(7), EPA expansively asserted federal jurisdiction to all waters affecting interstate commerce.¹²⁴ The Corps, however, felt that Congress did not-intend a similar scope for its program, and consequently its regulations implementing § 404 did not reflect any expansion in the jurisdictional application of its dredge or fill controls.¹²⁵ The Corps' reasoning rested primarily on the argument that Congress intended merely to transfer the authority of the § 10 permit system¹²⁶ to the FWPCA, and that since the purpose of § 10 was the maintenance of navigation (as opposed to water quality), the FWPCA's expanded definition of navigable water was not intended to apply to the § 404 program.

The Corps' position drew severe criticism from environmental groups. In an effort to compel the Corps to enlarge the scope of its permit program, the Natural Resources Defense Council (NRDC) and the National Wildlife Federation filed suit against the Corps. The United States District Court for the District of Columbia, in Natural Resources Defense Council v. Callaway, agreed with the plaintiffs that the Corps' regulations were not consistent with the intent of Congress in enacting § 404, and ordered the Corps to publish new regulations which would conform to the scope of the FWPCA, as expressed in § 502(7).¹²⁷

A. The Corps' Regulations Implementing § 404

On July 25, 1975, the Corps published final interim regulations pursuant to the court's order.¹²⁸ These regulations extend the Corps' jurisdiction in coastal regions to all coastal waters subject to the ebb and flow of the tide shoreward to the mean high water mark, and also to all wetlands, mudflats, swamps, and similar areas that are contiguous or adjacent to coastal waters if they are periodically inundated and are characterized by aquatic vegetation. In inland areas, Corps' jurisdiction encompasses all navigable rivers, lakes, and streams, all of their tributaries, and all interstate waters. Jurisdiction is also extended to waters located entirely within one state that are used by interstate travelers for recreation purposes or for the removal of fish for sale in interstate commerce, or for industrial or agricultural production of commodities sold or transported in interstate commerce. Manmadecanals navigated by recreational craft are also included within the Corps' jurisdiction, but drainage and irrigation ditches are excluded. Normal farming, agricultural, and ranching activities are also excluded. In addition, the regulations provide that local District Engineers have the discretion to regulate other ecologically valuable water bodies not specifically covered by the regulations on a case by case basis. The regulations are to take effect in three phases over a two year period. They were immediately effective for all coastal waters and adjacent wetlands, and also navigable inland rivers, lakes, and streams and their adjacent wetlands. By July 1, 1976, they will also cover primary tributaries of navigable waters and natural lakes greater than five acres. By July 1, 1977, the full scope of the regulations will take effect.¹²⁹

The regulations also attempt to resolve the administrative problem created by the fact that the language of § 404 does not provide for delegation to the states.¹³⁰ In [6 ELR 50062] doing so, they seek to avoid the possibility of having to expand considerably the Corps' administrative machinery, as well as to prevent unnecessary duplication of state and federal regulatory activities, by giving the states a significant role to play in the issuance of 404 permits. Although the Corps will make the final determination on the granting or denial of a permit (as the language of the FWPCA requires), the regulations essentially provide three mechanisms to increase state involvement in wetland regulation. First, a 404 permit will not be granted by the Corps if the state has refused to grant a water quality certification under § 401 of the FWPCA, and where applicable, a certification that the activity is in compliance with the state's approved coastal zone management program.¹³¹ In states with neither a water quality certification program nor an approved coastal zone management program, or where the state delays the processing of these certifications, the Corps will unilaterally process the permit. Thus, the regulations provide the states with the opportunity to veto permits that they do not favor, if they have § 401 certification procedures or approved coastal zone management plans. States with water quality or land use standards stricter than federal standards, then, are in no danger of being overruled by the Corps.

Second, if a state with an existing permit program regulating the same types of activities as the 404 program approves the permit, the Corps will not deny the permit absent "overriding national factors of the public interest," provided that the state's program reflects the same "policies, procedures, goals, requirements, and objectives" as the Corps' program.¹³² Third, the District Engineers may enter into agreements with states that have existing permit programs to provide for joint processing of permit applications, including joint public notices and hearings, and joint review and analysis of information and comments received.¹³³

Before attempting to coordinate the Corps' recent 404 regulations with the federal consistency provisions, mention should be made of the relationship of the 404 permit system to the coastal zone management (CZM) program. Since the 404 program is basically concerned with water quality considerations, the thrust of the program is directed toward impacts upon aquatic resources. In this sense, and because it regulates only dredging or filling activities, the 404 program is of much more limited scope than the CZM program, which seeks to plan for and regulate a wide variety of land and water uses in the coastal zone. Although more limited in substantive scope, the expanded 404 program is much broader in geographic coverage than the CZMA, since it clearly is designed to regulate activities that are outside of coastal areas. Therefore, it is erroneous to assume that state CZM programs, when implemented, will eliminate the need for the 404 program. Similarly, while the 404 program, where it pertains to the coastal area, cannot be viewed as a replacement for CZM, it does represent a specialized segment of what a CZM program involves. The purpose of the following section is to determine how and in what manner the 404 program will affect and be affected by operative CZM programs in terms of the states' ability to ensure consistency of federally-permitted dredge or fill activities with their CZM plans.

B. Correlating the § 404 Regulations with the Federal Consistency Requirements

Because a Corps' permit is required for any applicant for a dredge or fill activity, the 404 program falls within § 307(c)(3) of the federal consistency provisions. Both § 307(c)(3) of the CZMA and the pertinent Corps regulations are applicable to federal as well as non-federal applicants.¹³⁴ It should be noted at the outset, however, that the Corps' regulations do not require a 404 permit for the Corps' own dredge or fill operations.¹³⁵ Therefore, if these activities take place in or near the boundaries of an approved state CZM program, they would fall within the purview of either § 307(c)(1) or § 307(c)(2). As mentioned earlier, since it is difficult to determine which of these provisions would apply to a dredge or fill operation undertaken by the Corps, the degree of consistency promised to the states in this situation is not clear.¹³⁶

In terms of the 404 permit program, § 307(c)(3) essentially requires that "any applicant" for a dredge or fill permit that would "affect" the state's coastal zone to certify to the Corps that the activity "will be conducted in a manner consistent with the [state's] program." Consistency attaches only to permit applications submitted after the state program has received federal approval, but is not limited to activities within the boundaries of the states' coastal zones, since it is applicable to any activity "affecting" the coastal zones. Thus, consistency could be required of a dredge or fill activity taking place outside the geographic boundaries of the coastal zone or on excluded federal lands within the geographic coastal area. Moreover, since there is no "to the maximum extent practicable" language qualifying the consistency requirement, it must be assumed that total consistency is required. However, the Secretary of Commerce has the opportunity to override the state's decision, if it should refuse to approve certification.¹³⁷

A number of provisions in the Corps' recent regulations incorporate this requirement. First, § 209.120(e)(2) of the regulations, relating to the three-phased scope of applicability of the regulations, states that even if a particular dredge or fill activity is not yet subject to the Corps' regulations, the requirement of certification of compliance with the state's approved [6 ELR 50063] CZM program applies.¹³⁸ This means that, for instance, a dredge or fill permit in a secondary or tertiary tributary of a navigable water within the coastal zone, or a wetland adjacent or contiguous to these tributaries, which will not be subject to 404 requirements until July 1, 1977, still must be certified as being consistent with the state's approved CZM programs.

Second, and most important in terms of the state's ability to exert control over dredge or fill permits, § 209.120(f)(3) of the Corps' regulations provides that:

Permits will not be issued where certification or authorization of the proposed work is required by Federal, State, and/or local law and that certification or authorization has been denied…. Where the required State certification and/or authorization has been denied and procedures for reconsideration exist, reasonable time not to exceed 90 days will be allowed the applicant to attempt to resolve the problem and/or obtain reconsideration of the denial…. In the absence of overriding national factors of the public interest that may be revealed during the subsequent processing of the permit application, a permit will generally be issued following the receipt of a favorable determination, provided the concerns, policies, goals, and requirements [expressed in these regulations], the guidelines [of EPA, authorized by section 402(b)] and [a number of federal statutes] have been followed and considered….¹³⁹

Thus, if a state certifies under § 307(c)(3) of the CZMA that the dredge or fill application complies with its approved CZM program, assuming the other conditions specified in the regulations have been "followed and considered," in most instances (unless it finds "overriding national factors of the public interest") the Corps will "rubber stamp" the state's certification. This effectively parallels the deference accorded by the Corps' regulations to state certification or non-certification under § 401 of the FWPCA in providing administratively for the state delegation that was not written into the FWPCA.¹⁴⁰ Of course, EPA could still deny the permit under § 404(c) of the FWPCA, if it finds that the discharge will have an adverse impact on municipal water supplies, shellfish beds and fishery areas, or wildlife or recreation areas.

If, on the other hand, a state refuses to certify the permit, there is a possibility of three subsequent levels of federal review — the Secretary of Commerce, the Corps, and finally, EPA. First, the Corps will deny the permit application. However, the Corps' regulations do recognize that some "procedures for reconsideration" may exist. In terms of § 307(c)(3), this would obviously refer to the possibility that the Secretary of Commerce might override the state's refusal to certify if he finds "that the activity is consistent with the objectives (of the CZMA) or is otherwise necessary in the interest of national security."¹⁴¹ In this event, the permit application would then be processed by the Corps. The Corps could still deny the permit under its "public interest review," and, if it did not, EPA would have an opportunity to deny it under § 404(c), for the reasons outlined above.¹⁴²

The Corps' regulations specifying the procedures to be followed in the event that § 307(c)(3) certification is required provide a glimpse of the complex power struggles which might take place if a state chose to refuse certification. Section (i)(2)(ii) states that:

If the proposed activity will be located in the coastal zone of a State, the District Engineer shall obtain from the applicant a certification that the activity conforms to the coastal zone management program of the State. Upon receipt of the certification, the District Engineer will forward a copy of the permit application and certification to the State agency responsible for implementing the coastal zone management program and request its concurrence or objection…. If the State agency fails to concur or object within six months of the request, it will be presumed to waive its rights to so act, and the certification will be presumed to be valid…. If the State agency objects to the proposed activity, the District Engineer will so advise the Director, Office of Coastal Zone Management, NOAA, and request advice within thirty days whether or not the Secretary of Commerce will review the application. If the objection will not be reviewed, the permit will be denied. If, however, the Secretary of Commerce indicates he will review the objection, further action on the application will be held in abeyance pending notification of the results of the review. If the objection is sustained, the permit will be denied. If the objection is overruled by the Secretary's finding, however, the processing will be continued.¹⁴³

The Corps, therefore, explicitly incorporates the provisions of § 307(c)(3) into its permit procedures. Particular note, however, should be taken of the first sentence of § (i)(2)(ii), for it limits the CZM certification procedures to proposed activities in the coastal zone. This limitation significantly conflicts with the scope of § 307(c)(3), which requires consistency of all permits which would affect the coastal zone. In addition to not providing for state approval of certification for those activities outside of the states' coastal zones but affecting them, the Corps' erroneous interpretation of the § 307(c)(3) requirements would not provide for state approval of dredge or fill activities on excluded federal lands (which by definition are excluded from the state's [6 ELR 50064] coastal zone¹⁴⁴) within the geographic boundaries of the coastal area, even if the activity would "affect" the state's coastal zone.¹⁴⁵

The net effect of this not altogether successful incorporation provides states with an approved CZM program a considerable amount of leverage over the processing of 404 permits. Essentially, the above-described regulations detail the means by which the 404 program incorporates the applicable federal consistency requirement — they do not pertain to whether the § 404 regulations can be used to augment the ability of the states to require federal consistency within their coastal zones apart from the explicit language of § 307(c)(3). There is, however, language in the Corps' regulations which can be interpreted as giving the state a larger role in the 404 program proper than is provided through the incorporation of § 307(c)(3).

In addition to their relationship to § 307(c)(3) of the CZMA, the policies expressed in § (f)(3) of the Corps' regulations are applicable to a state's water quality certification under § 401(a) of the FWPCA,¹⁴⁶ which provides, in pertinent part, that:

Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency with a certification from the State in which the discharge originates or will originate … that any such discharges will comply with the applicable provisions of sections 301, 302, 306, and 307 of this Act…. Such agency, based upon the recommendations of such State, the Administrator, and upon any additional evidence, if any, shall condition such license or permit in such a manner as to be necessary to insure compliance with the applicable water quality requirements. If the imposition of conditions cannot insure such compliance, such agency shall not issue the license or permit.¹⁴⁷

In effect, the Corps' regulations allow a state to condition or deny water quality certification for a dredge or fill permit if the state has more stringent water quality standards than the federal requirements. However, a state may do quite a bit more than this, since § 401(d) states that:

Any certification provided under this section shall set forth any effluent limitation and other limitations … necessary to assure that any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations … and with any other appropriate requirement of State law set forth in such certification.¹⁴⁸

The above language would appear to make the inclusion in the 401 certification of "other appropriate requirements of State law" a matter left to the discretion of the state.

401 certification is required in the Corps' regulations in all cases where certification under § 307(c)(3) of the CZMA is applicable. It therefore pertains not only to the policies expressed in § (f)(3) of the regulations, but also to activities which would otherwise be exempt from the 404 procedures as a result of the "phased" scope of applicability of the regulations.¹⁴⁹

In terms of the state's ability to exert control over the issuance of a 404 permit, this requirement of 401 certification could create a substantially increased assurance of consistency with approved CZM programs. If a state chose to include the requirements of its CZM program in its 401 water quality certification procedures, it could then deny a 404 permit on the basis of its CZM program alone, since the program would qualify as "[an]other appropriate requirement of State law." And because there are no provisions in § 401 for federal override of the state's denial of water quality certification, if a state refused to certify the 404 permit on the basis of its CZM plan made applicable through § 401, that decision could not be overturned by the Secretary of Commerce, as in the case of a decision made under § 307(c)(3). However, a state could not refuse certification under § 401 for a 404 permit to a federal agency, since 401 certification does not apply to federal applicants.¹⁵⁰ In these instances, a state would have to rely upon § 307(c)(3) if it did not wish to see the permit granted, and therefore its decision would be subject to override by the Secretary of Commerce.

This line of reasoning is reinforced by the language of § 307(f) of the CZMA, which states:

Notwithstanding any other provision of this title, nothing in this title shall in any way affect any requirement (1) established by the Federal Water Pollution Control Act, as amended, or the Clean Air Act, as amended, or (2) established by any State or local government pursuant to such Acts….¹⁵¹

Thus, if a state incorporated its CZM program into its 401 certification procedures, its CZM plan would then be a requirement established by a state pursuant to the FWPCA, and the explicit language of the CZMA would prevent the Secretary of Commerce from overriding a state's refusal on the basis of its CZM plan to certify a 404 permit.

III. Conclusion

If the results of this article illustrate nothing else, they demonstrate that the prospective relationships between the federal government and the states created by the Coastal Zone Management Act are difficult to determine even on paper. This is partly due to the fact that the CZMA involves so many different players that it is difficult to determine who holds the trumps. But it is [6 ELR 50065] also a reflection of the difficulties inherent in fostering an expanded role for the coastal states in the allocation of land and water resources. Federal activity and regulation have become so pervasive (though not necessarily effective) in this area that in order to exert leverage over the resources nominally within their jurisdictions, states must discover and exploit the chinks in the federal armor. A potential weapon of the states could be the federal consistency provisions. The CZMA, through these provisions, makes promises which, if fulfilled, could serve as a mechanism by which the states could substantially influence federal policies and programs that affect their coastal areas.

It has been apparent throughout this article, however, that the promises of federal consistency made in the CZMA are less than complete. Each of the federal consistency provisions is characterized by uncertainties, ambiguities, and loopholes. Some of these can be explained by the fact that regulations implementing the federal consistency provisions have yet to be drafted. It is possible that future regulations may serve to fill in the gaps. Or perhaps the mechanisms provided in the CZMA to stimulate federal-state coordination before the various state CZM programs are approved will serve to clarify the gray areas. Resolution of these uncertainties, however, may prove to be a formidable task, since many of them strike close to the heart of the political system's allocation of decision-making authority over the nation's land and water resources. This is because federal-state relations in the area of natural resources law have historically been characterized by more than a little uncertainty as to where the ultimate power to decide resides. In the context of the CZMA, it is doubtful then, that the administrative regulations or mechanisms to foster inter-governmental coordination and cooperation will be able to resolve adequately the questions left unanswered by the Act's drafters. It is even more doubtful considering that the stakes involved — the ability to control the allocation of the land and water resources of the nation's coastal areas — are extremely high and the players are many.

Perhaps the best indication of the lack of pervasiveness of the federal consistency provisions lies in the fact that in the context of the 404 dredge or fill permit program, the power of the states is maximized not through the terms of the applicable consistency provision (§ 307(c)(3)), but instead through the regulations of the Corps of Engineers, the language of an exception to the consistency provisions (§ 307(f)), and a provision of a different act of Congress (§ 401 of the FWPCA). Thus, there is little basis for restricting the scope of the 404 program on the ground that dredge or fill activities should be regulated by the states, since the Corps' regulations provide the states with considerable opportunities to exert their influence. Moreover, operative state CZM plans should not be viewed as viable replacements for the 404 program. This is because the most formidable tool at the disposal of the coastal states in their efforts to gain leverage over federal activities affecting the land and water uses of their coastal zones lies not exclusively in the CZMA's promise of federal consistency, but in their ability to orchestrate diverse provisions of federal laws.

** Director of Law, Center for Natural Areas; J.D. 1973, Texas Tech University; L.L.M. in Environmental Law 1974, George Washington University; former attorney, Office of Legislation, Environmental Protection Agency.

1. 16 U.S.C. §§ 1451-64, ELR 41701 (hereinafter cited as CZMA).

2. CZMA § 303(a), ELR 41701.

3. Senate Commerce Comm., National Coastal Zone Management Act of 1972, S. Rep. No. 753, 92d Cong., 2d Sess. 2-3 (1972). The legislative and political history of the Act is detailed in Zile, A Legislative-Political History of the Coastal Zone Management Act of 1972, Coastal Zone Management Journal No. 3 (1974). For present purposes, it is sufficient to note that the Act was the end product of four distinct phases of interest group pressure. Chronologically, these were: a recreation phase, an estuary protection phase, an ocean development phase, and a land use policy phase. As one writer has expressed it, "[t]he Act in its final form reflects something of each of these concerns and phases. This perhaps accounts in large measure for the Act's final form and contents, its gaps and contradictions, and the uncertainty of its future." Id. at 236. For a more critical review of the Act's weaknesses, see A. Reitze, Environmental Planning: Law of Land and Natural Resources at two-1 (1974).

4. CZMA § 305, ELR 41702. See 15 C.F.R. part 920.

5. Id. § 306, ELR 41702-03. See 15 C.F.R. part 923, ELR 46705.

6. The Act also provides grants to states for the establishment of estuarine sanctuaries under § 312 "for the purpose of creating natural field laboratories to gather data and make studies of the natural and human processes occurring within the estuaries of the coastal zone."

7. CZMA § 304(a), ELR 41701.

8. Id., § 303(b) ELR 41701.

9. Although there was some congressional sentiment to establish the program under the Secretary of Interior, it was finally determined that Commerce, with its newly-created, water-oriented, NASA-like National Oceanic and Atmospheric Administration would be more appropriate. Coordination with national land use legislation, if the responsibility of Interior or any other department, is accomplished through § 307(g). See notes 85 and 86 infra and accompanying text. There is some confusion over how much authority the Secretary has delegated to the Administrator. The regulations seem to indicate that there is total delegation, since they do not mention the Secretary at all. OCZM, however, is in the process of clarifying their respective roles. Because there are as yet no regulations implementing the consistency provisions, this article follows the statute's references to the Secretary.

10. Office of Coastal Zone Management, OCZM Facts (May 1975).

11. States eligible for funds are defined by § 304(c) as those "in or bordering on the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes … also (to include) Puerto Rico, the Virgin Islands, Guam, and American Samoa." Thus, there are 30 states eligible for the program, in addition to the above-mentioned territories.

12. However, as of the end of fiscal 1975, all 30 eligible states and three of the four eligible territories had chosen to participate in the initial phase of the program. The lone exception, American Samoa, is expected to begin participation before the end of fiscal 1976.

13. CZMA § 302(h), ELR 41701 (emphasis added).

14. Of course, land use decisionmaking is one of the powers reserved to the states by the Tenth Amendment of the Constitution.

15. Senate Report, supra note 3, at 4. The Senate Report also stated:

The American Law Institute has estimated that 90% of land use decisions being made by local governments have no major effects on state or national interests. Local governments should maintain control over a great majority of matters which are only of local concern. The range of problems that arises in the coastal zone, however, often calls for a wider jurisdictional range.

Id. at 5.

Viewing the above quotation in light of the recent failures of the Congress to pass national land use legislation, it appears that the CZMA gained support in large measure as special legislation designed to meet the particular pressing needs of a defined area, and not, as many others had hoped, as a harbinger of national land use legislation. Of course, this observation is not intended to discount the political realities of the time, including the "impeachment politics" of the 1974 legislative sessions.

16. Id.

17. Id. at 5-6 (emphasis added).

18. CZMA § 306(e)(1), ELR 41703. The basic difference between the first and third alternatives is that in the first, the state has the opportunity to interject its standards in the planning stage, while in the third, the state is limited to reacting to local plans, projects, and regulations.

19. Id. § 305(b)(1), ELR 41702. See 15 C.F.R. §§ 920.11, 923.11.

20. Id. § 305(b)(2), (4), ELR 41702. See 15 C.F.R. §§ 920.12, 923.12, 920.14, 923.21.

21. Id. § 305(b)(3), ELR 41702. See 15 C.F.R. §§ 920.13, 923.13.

22. Id. § 305(b)(5), ELR 41702. See 15 C.F.R. §§ 920.15, 923.14.

23. Id. § 306(c)(8), ELR 41703. See 15 C.F.R. § 923.15, ELR 46710. This provision has particular relevance to the siting of energy facilities, especially in a time when outer continental shelf mineral exploration is viewed by many as a panacea for the nation's energy problems. See notes 38-40 infra and accompanying text.

24. Id. § 306(c)(9), ELR 41703. See 15 C.F.R. § 923.16, ELR 46711.

25. Id. § 306(e)(2), ELR 41703. See 15 C.F.R. § 923.17, ELR 46711.

26. Remarks by Robert W. Knecht, Director of the Office of Coastal Zone Management, at the Second Annual Land Use Institute, Sheraton Park Hotel, Washington, D.C., at 2 (Feb. 27, 1975).

27. States may receive development grants provided by § 305 for up to three years, but no grant may be awarded after fiscal 1977. After it has received federal approval, a state's program is eligible for administrative grants under § 306. The ultimate goal of OCZM is to phase out administrative grants after the approved programs have been operating for a few years. One might wonder, however, if this goal will be realized, since the abolition of the administrative grants would effectively close down OCZM. In addition, grants to establish estuarine sanctuaries (see note 6 supra) can be awarded under § 312 on a 50 percent matching basis.

28. The Coastal Zone Management Act Amendments of 1976, S. 528, H.R. 3981, 94th Cong., 1st Sess. (1975), have passed both the Senate and the House, and are currently under consideration by a Conference Committee. Although the Amendments add additional substantive requirements for an approvable state CZM program, such as increased public access to the nation's beaches, the only substantive change to the federal consistency provisions, agreed to by the Conference Committee, would be to extend the scope of the third consistency provision to include outer continental shelf mineral development plans. See notes 66-67 infra and accompanying text.

29. However, Robert W. Knecht, Director of OCZM, has stated that federal funding might note be approved for at least one state for the third year of its development program. 7 Coastal Zone Management Newsletter, No. 15 at 3 (Apr. 14, 1976). Presumably this cut-off will be a result of the state's failure to make adequate progress toward developing an approvable CZM program. See also 7 Coastal Zone Management Newsletter, No. 14 at 1 (Apr. 7, 1976), which describes OCZM's new "get tough" policy with states whose development programs are lagging.

30. The state of Washington received final approval of its program on June 1, 1976, becoming the first state with an approved CZM program.

31. Even after the state of Alaska receives its 103 million acre allotment from the federal government under the Alaska Statehood Act of 1958 and the Alaska natives receive their 40 million acre entitlement under the Alaska Native Claims Settlement Act of 1971, the federal government will still control nearly two-thirds of Alaska' land area.

32. CZMA § 306(c)(1), ELR 41702. A list of federal agencies "relevant" to each state program is provided in 15 C.F.R. § 925.3(a). The regulation states that this list is not intended to be all-inclusive, and that there may be other federal agencies "relevant" to a particular state's program. Section 925.3(b) suggests that these federal agencies be contacted "early in the development" of a state's program. See also note 37 infra.

33. 15 C.F.R. § 923.31(b)(2)(i)(a), ELR 46714.

34. 15 C.F.R. § 925.2(e).

35. These are contained in § 306 of the Act, and in 15 C.F.R. § 923, ELR 46705 (which also incorporates the standards set forth in § 305).

36. 15 C.F.R. § 925.5(a).

37. 15 C.F.R. § 925.4.

38. CZMA § 306(c)(8), ELR 41703. See 15 C.F.R. § 923.15, ELR 46710. The regulations also provide for seven other "facilities" in which there is a strong national interest, including: recreation; transportation; production of food and fiber; preservation of life and property; national defense and aerospace; historic, cultural, esthetic, and conservation; and mineral resources facilities.

39. 15 C.F.R. § 923.15(b), ELR 46710.

40. Id.

41. 15 C.F.R. §§ 925.6(b)-(d).

42. 15 C.F.R. § 925.6(e).

43. It should be noted that an entire state's coastal zone program need not be submitted for approval at once. Section 306(h) states that segments of a state's coastal zone program may receive approval and be eligible for administrative grants, provided that "the state adequately provides for the ultimate coordination of the various segments of the management program into a single unified programs … as soon as is reasonably practicable."

44. Coordination among the federal agencies seems to be assumed by the CZMA. However, this is not necessarily true. Public Land Law Review Comm'n, One Third of the Nation's Land 60 (1970), points this out quite clearly, in the context of federal land management agencies:

The case for effective interagency coordination is simple — the Federal left hand should know what the Federal right hand is doing. We have found that there has been little regional coordination among Federal agencies. The agencies compete with each other in managing the Federal lands to meet the needs of the public in a broad sense, but with no given or derived objectives for each agency and with no congressional directive to coordinate either land use planning procedures, or operational programs in furtherance of the objectives. In many instances, there is not only duplication of services and facilities, but lack of concern for and the impact of one agency's program on those of other Federal agencies. Opportunities for using different classes of public lands for a specific purpose cannot be fully examined because the agencies plan independently.

It should be noted, however, that the Council on Environmental Quality has recently conducted a series of meetings attended by representatives of the federal public land management agencies for the express purpose of developing effective interagency coordination.

45. Office of Coastal Zone Management, The Federal Consistency Provisions of the Coastal Zone Management Act of 1973, A Preliminary Analysis (1975) (hereinafter cited as OCZM Study).

46. CZMA § 307(c)(1), ELR 41703.

47. OCZM Study, supra note 45, at 8.

48. For example, is an areawide or statewide water quality management plan developed under § 208 of the FWPCA an activity conducted primarily for federal or for state purposes?

49. Therefore, if 208 plans fall within the ambit of a "conducting or supporting activity," then these plans would have to be brought into conformity with approved CZM plans, even if the 208 plans were already in existence at the time of CZM program approval. On the other hand, if 208 plans are to be governed by the fourth consistency provision (§ 307(d)), the CZM program would not require consistency of existing 208 plans. But see § 307(f) and its exemption of "requirements" established pursuant to the FWPCA, described in notes 89-98 infra and the accompanying text.

50. OCZM relied on House Merchant Marine and Fisheries Comm., National Coastal Zone Management Act of 1972, H.R. Rep. No. 1049, 92d Cong., 2d Sess. 20 (1972), which states:

There may, however, arise after the approval of a program, some circumstances not foreseen at the time of its approval which may present a Federal agency with an obstacle or situation which as a practical matter may prevent complete adherence to the approved program. For that reason, the Committee felt that some leeway should be written into the statute with respect to activities of Federal agencies in connection with approved programs.

51. OCZM Study, supra note 45, at 9.

52. But see Sierra Club v. Morton, 514 F.2d 856, 5 ELR 20463 (D.C. Cir. 1975) cert. granted, 44 U.S.L.W. 3397 (Jan. 12, 1976), which suggests that a duty to plan may be applicable to all federal agencies pursuant to the provisions of the National Environmental Policy Act (NEPA).

53. See taxt accompanying note 62 infra.

54. California ex rel. State Water Resources Conservation Board v. EPA, 511 F.2d 963, 5 ELR 20213 (9th Cir. 1975), rev'd 44 U.S.L.W. 4781 (June 7, 1976).

Editor's Note. On June 7, 1976, the Supreme Court ruled that § 118 of the Clean Air Act, 42 U.S.C. § 1857f, and § 313 of the FWPCA, 33 U.S.C. § 1323, in fact do not obligate federal installations to obtain the relevant state permits before discharging pollutants. Hancock v. Train, 44 U.S.L.W. 4767 (June 7, 1976); Environmental Protection Agency v. California ex rel. State Water Resources Control Board, 44 U.S.L.W. 4781 (June 7, 1976).

55. See text accompanying note 89 infra.

56. For an assessment of the substantive versus procedural compliance of federal agencies in terms of state programs developed pursuant to the pollution control programs administered by EPA, see Shaw, The Procedures to Ensure Compliance by Federal Facilities with Environmental Quality Standards, 5 ELR 50211 (1975). See also Comment, Local Control of Pollution From Federal Facilities, 11 San Diego L. Rev. 972 (1974).

57. CZMA § 307(c)(2), ELR 41703.

58. OCZM Study, supra note 45, at 10. It should be noted that this definition might not include "development projects" where the federal agency subcontracts the work to be performed to private entities.

59. Section 304(a) excludes from a state's 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."

60. OMB Circular A-95, ELR 47001, defines direct federal development as the "… planning and construction of public works, physical facilities, and installation of land and real property development (including the acquisition, use, and disposal of real property) undertaken by or for the use of the Federal government on any of its agencies."

61. For example, is a dredge of fill activity undertaken by the Corps of Engineers a "conducting or supporting" activity or is it a "Federal development project"? Employing OMB's definition, see note 60 supra, it would appear to fall within the definition of a "Federal development project," yet certainly it could also fall within the ambit of "Federal activities conducted or supported primarily for Federal purposes." See text accompanying note 47. And if a dredge or fill activity undertaken by the Corps (as opposed to a dredge or fill permit granted by the Corps pursuant to § 404 of the FWPCA) may fall within the parameters of either provision, who is to determine which consistency provision will apply — the Corps or the states? This determination could prove to be critical in ascertaining whether the consistency requirements have been met.

62. Coastal Zone Management Act of 1972, Conf. Rep. No. 1544, 92d Cong., 2d Sess. 10 (1972) (emphasis added).

63. S. 3507, 92d Cong. 1st Sess. (1971), § 314(b)(2).

64. CZMA § 307(c)(3), ELR 41703 (emphasis added).

65. Senate Report, supra note 3, at 9 (emphasis added). It is interesting to note that this provision could apply to federal activities, if these activities require a permit or license from another federal agency. For example, the Corps of Engineers regulations on dredge or fill activities require a § 404 permit for dredge or fill activities "done by or on behalf of any Federal agency." The Corps' regulations, however, are not applicable to the Corps itself. See 33 C.F.R. § 209.120(e)(4).

66. Basically, the proposed amendments would require that where a proposal for the exploration, production, or development of outer continental shelf mineral resources under theOuter Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et seq., would "affect" a state's coastal zone, the state must certify to the Secretary of the Interior that the OCS proposal is consistent with the state's approved CZM plan. Where the state has so certified, all subsequent activities undertaken pursuant to the OCS proposal, including applications for federal licenses or permits, will be deemed to be coinsistent with the state CZM plan. Thus, the state could not object to the issuance of these federal licenses or permits, so long as they involved activities undertaken pursuant to a state-certified OCS proposal. On the other hand, if the state denied certification for the OCS proposal, and the Secretary of Commerce chose to override the state's denial, applications for federal licenses and permits for activities undertaken pursuant to the OCS proposal would be subject to the state's certification on an individual basis. See Coastal Zone Management Act Amendments of 1976, S. 586, 94th Cong., 1st Sess. § 307(c)(3)(B) (1975).

67. OCZM Study, supra note 45, at 17.

68. At present OCZM has yet to clarify what distinction, if any, is to be drawn between the two standards. See OCZM Study, supra note 45, at 13. However, it is possible that the "directly affecting" standard might have some relationship with the landward boundary of the coastal zone, defined by § 304(a) of the CZMA as extending "inland from the shorelines only to the extent necessary to control the shorelands, the use of which have a direct and significant impact on coastal waters." See text accompanying note 7 supra.

69. See text accompanying notes 2 and 8 supra.

70. CZMA § 303(b), ELR 41701. OCZM agrees that the Secretary's decision to override could be based upon his reading of this requirement. See OCZM Study, supra note 45, at 15.

71. CZMA § 306(c)(8), ELR 41703. See notes 23 and 38 surpa.

72. See text accompanying note 67 supra. One possible strategy that might be employed by OCZM in the Conference Committee would be to encourage the conferees not to extend § 307(c)(3) to include leases, on the ground that leases are already impliedly included in that section. Thus, if the President were to veto the bill, the language of the Conference Committee Report might be used to support OCZM's suggested interpretation of the scope of that section. On the other hand, it could also be argued that the omission of leases indicated that Congress had the question before it and rejected the inclusion of leases. In any event, it would be a battle in the art of creating legislative history.

73. In fact, this result is quite likely since it is doubtful that a Secretary of Commerce would give greater weight to § 303(b)'s policy of "giving full consideration to ecological, historic, and esthetic values" than would a Secretary of Interior. It would appear to matter little to a state in the position of Alaska whether the final decision came from the Secretary of Interior or the Secretary of Commerce. On April 6, 1976, Judge Joseph C. Waddy of the District Court for District of Columbia denied the state of Alaska's motion for a preliminary injunction of the OCS lease sale, Alaska v. Kleppe, __ F. Supp. __, 6 ELR 20479 (D.D.C. Apr. 8, 1976). The state has appealed this decision in the District of Columbia Circuit Court of Appeals.

74. CZMA § 307(c)(3), ELR 41703.

75. Senate Report, supra note 3, at 20 (emphasis added).

76. Id. (emphasis added).

77. OCZM Study, supra note 46, at 19.

78. 40 U.S.C. § 461.

79. The interface between CZM and 208 plans is further complicated by the language of § 307(f) of the CZMA. See notes 89-98 infra and accompanying text.

80. For example, the regulations of the Department of Housing and Urban Development implementing the 701 comprehensive assistance program list metropolitan clearinghouses, councils of government, and Indian tribal groups or bodies among the eligible recipients for 701 planning assistance. It is conceivable that one or all of these applicants might not fall within the definition of "governments," since they are not general units of government. See 24 C.F.R. § 600.25(e)-(g).

81. Senate Report, supra note 3, at 6.

82. Although, as mentioned previously, all eligible states are participating in the development grant stage of the CZM program, there is nothing in the CZMA that would compel a state to seek federal approval of its program once it is developed. Presumably, a state could choose to implement its program without receiving federal approval, if it felt that the incentives offered by the federal consistency provisions and federal funding assistance in the implementation stage of its program were not sufficient to justify meeting the minimum national criteria required in the CZMA.

83. CZMA § 313(a)(5), ELR 41704.

84. Conference Report, supra note 62, at 20.

85. CZMA § 307(g), ELR 41704.

86. There is a disagreement between the language of the CZMA and the legislative history as to whether state coastal zone programs already approved would have to conform to the requirements of future national land use legislation. The language of § 307(g) pertains only to programs submitted for approval or modification, while the Conference Committee Report seemed to intend that all approved programs be modified to comply with the national land use legislation. See OCZM Study, supra note 45, at 21.

87. 33 U.S.C. §§ 1251-1376, ELR 41101.

88. 42 U.S.C. §§ 1857-58a, ELR 41201.

89. CZMA § 307(f), ELR 41704.

90. 15 C.F.R. § 923.44(b)(1), ELR 46715, states:

The basic purpose of this requirement is to ensure that the management program does not conflict with the national and state policies, plans, and regulations mandated by the Federal Water Pollution Control Act, as amended, and the Clean Air Act, as amended. The policies and standards adopted pursuant to these Acts should be considered to be essential baselines against which the overall management program is developed.

(Emphasis added).

91. To the extent that air and water quality plans include provisions which are not within the meaning of "requirements," as used in § 307(f), these plans could be subjected to the consistency requirements which apply either to "conducting or supporting activities" under § 307(c)(1) or to federal grants to state or local governments under § 307(d). See notes 48 and 49 supra. However, OCZM's regulations implementing § 307(f), see note 90 supra, might be interpreted as going beyond the statutory requirement by exempting the entirety of air and water quality plans from consistency with CZM plans.

92. CZMA § 304(h), ELR 41702.

93. The water quality standards of § 303 of the FWPCA are to be included as part of the continuing state planning processes established by § 303(e), which is required to incorporate all elements of areawide 208 plans, by the language of § 303(e)(3)(B). EPA's regulations published on November 21, 1975, consolidated 303(e) planning and 208 planning, see 40 C.F.R. §§ 130 and 131, ELR 46341, 46349, largely as a result of the court's decision in Natural Resources Defense Council v. Train, 396 F. Supp. 1386, 5 ELR 20405 (D.D.C. 1975).

94. Section 208(e) of the FWPCA states that no NPDES permits may be issued which conflict with operative 208 plans.

95. 208 plans regulate nonpoint sources largely by virtue of authorities contained in § 208(b)(2)(F)-(K).

96. It is not clear, however, whether other elements of 208 planning, such as the ability to control grants for sewage treatment facilities under § 208(d), would be considered to be "requirements" within the meaning of § 307(f) of the CZMA.

97. It is likely that many CZM plans will receive federal approval and be implemented before November 1, 1978, when statewide 208 plans are due to EPA for approval.

98. However, on August 26, 1975, the two agencies signed a joint letter of intent on "Water Programs Coordination Principles." If the agencies are unable to coordinate their programs in the near future, it is conceivable that they could be compelled to produce an environmental impact statement on their failure to do so by the language of § 101(b) of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., ELR 41009. This provision makes it the responsibility of federal agencies "to use all practicable means … to improve and coordinate Federal plans, functions, programs, and resources" to enhance environmental quality. In interpreting this provision the court in the Sierra Club v. Morton case stated:

Agency violation of this substantive duty by a failure to improve its plans or resources might justify a judicial directive to coordinate various major Federal actions into one comprehensive major Federal action, followed by a directive ordering the issuance of a comprehensive impact statement for that newly comprised action.

Sierra Club v. Morton, 514 F.2d 856, 5 ELR 20463, 20470 (D.C. Cir. 1975), cert. granted 44 U.S.L.W. 3397 (Jan. 12, 1976).

99. See text accompanying note 7 supra.

100. CZMA § 304(a), ELR 41701 (emphasis added).

101. Conference Report, supra note 62, at 13.

102. Office of Coastal Zone Management, The Excluded Federal Land Provision of the Coastal Zone Management Act of 1972 at 3 (1975). See also Public Land Law Review Comm'n, One Third of the Nation's Land 278 (1970).

103. Id. at 5. The question of which federal lands are under exclusive legislative jurisdiction can only be determined by examining the legislation which established the federal responsibility for each particular tract, as well as examining the actual exercise of authority by the federal and state governments over the tract.

104. CZMA § 304(a), ELR 41701 (emphasis added).

105. Conference Report, supra note 62, at 13.

106. However, there are at least two points that favor OCZM's position. One is § 307(c)(2)'s language requiring consistency of federal development projects that take place in the coastal zone. If one assumes that a federal development project would take place only on federal lands, then this provision would appear to indicate that Congress intended to include some federal lands within the states' coastal zones. Another point in favor of OCZM's position is the Senate Commerce Committee's emphasis on the development of comprehensive state CZM plans, if one assumes that the exclusion of vast tracts of land from the states' programs would, in effect, prevent their plans from being comprehensive ones. See Senate Report, supra note 3, at 5-6.

107. Washington State Coastal Zone Management Program 117-18 (1975). Significantly, in its discussion of the excluded federal lands question, the Washington program makes no mention of "lands held in trust by the Federal government," excluding only those lands which are under the exclusive legislative jurisdiction of the federal government.

108. See note 54 supra and accompanying text.

109. It is possible that the first two consistency provisions provide even less than this if the federal agencies determine what is and is not consistent with the states' CZM plans. See text following note 52 supra.

110. OCZM Study, supra note 45, at 22-23.

111. Since there are no excluded waters within the boundaries of the states' coastal zones, if a federal activity has an impact on any such waters, then consistency should be required, even if the only land-based impacts are on excluded federal lands.

112. For example, § 303(c) of the CZMA declares that it is the national policy "for all Federal agencies engaged in programs affecting the coastal zone to coordinate and participate with state and local governments and regional agencies in effectuating the purposes" of the CZMA.

113. 33 U.S.C. § 1344, ELR 41124.

114. On June 3, 1976, the House passed H.R. 9560, which would, inter alia, restrict the scope of the 404 program to waters which are presently used or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce. The Corps' jurisdiction would extend shoreward to the mean high water mark (mean higher high water mark on the west coast). The amendments is opposed by environmental groups, EPA, and the Fish and Wildlife Service, as well as the Corps of Engineers.

115. The term pollutant is defined by § 502(6) of the FWPCA as, "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water."

116. FWPCA § 101(a)(1), ELR 41102.

117. Id. § 404(a), ELR 41124.

118. 33 U.S.C. § 403, ELR 41142.

119. EPA is also charged with administering permits for the discharge of pollutants into the territorial sea by § 403(a) of the FWPCA.

120. FWPCA § 404(b), ELR 41124.

121. Id. § 404(c), ELR 41124.

122. Id.

123. Id. § 502(7), ELR 41125.

124. 40 C.F.R. § 125(p), ELR 46425, defines "navigable waters" as:

(1) All navigable waters of the United States;

(2) Tributaries of navigable waters of the United States;

(3) Interstate waters;

(4) Intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes;

(5) Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce; and,

(6) Intrastate lakes, rivers, and streams which are utilized for industrial purposes by industries in interstate commerce.

125. 33 C.F.R. § 209.210(d)(1) (1974).

126. A permit under § 10 is still required to perform work or place structures in navigable waters.

127. Natural Resources Defense Council v. Callaway, 524 F. Supp. 79, 5 ELR 20640 (D.D.C. 1975).

128. 33 C.F.R. § 209, ELR 46319. "Interim final" regulations were published in order to allow immediate implementation of the regulations, but also permit a 90-day (subsequently extended) comment period on the regulations. On September 5, 1975, EPA published guidelines for disposal criteria and site evaluations, as required by § 404(b). 40 C.F.R. § 230.

129. 33 C.F.R. § 209.120(e)(2), ELR 46324-25.

130. It may be asked why attempts to amend § 404 to provide for legislative delegation to the states, similar to that in § 402, have been resisted by environmental groups. This is probably because there has been a general agreement not to amend the FWPCA until the National Commission on Water Quality (the Rockefeller Commission) submits its report sometime in 1977 (a draft was recently published). However, the real reason is that environmentalists fear that any agreement to seek such an amendment would provide an opportunity for opponents of the FWPCA to weaken other provisions of the Act.

131. 33 C.F.R. § 209.120(f)(3)(iii), ELR 46326.

132. Id.

133. Id. § 209.120(f)(3)(v), ELR 46326.

134. The Corps' regulations specifically refer to federal applicants, 33 C.F.R. § i09.120(e)(4), ELR 46325, while § 307(c)(3) refers to "any applicant."

135. 33 C.F.R. § 209.120(e)(4).

136. See notes 60 and 61 supra and accompanying text.

137. For a more detailed discussion of the operation of § 307(c)(3), see text accompanying notes 64-73 supra.

138. 33 C.F.R. § 209.120(e)(2)(ii)(b), ELR 46325.

139. Id. § 209.120(f)(3) (emphasis added). EPA's guidelines appear at 40 C.F.R. § 230. The "other Federal statutes" consist of: the National Environmental Policy Act; the Fish and Wildlife Coordination Act; the Historical and Archaeological Preservation Act; the National Historic Preservation Act; the Endangered Species Act; the Coastal Zone Management Act; the Marine Protection, Research and Sanctuaries Act; and the Federal Water Pollution Control Act.

140. This was a particular cause of concern for the Natural Resources Defense Council (NRDC), as expressed in its comments on the regulations. NRDC left that the words "followed and considered," pertaining to the requirements of the FWPCA and the other federal statutes, were too weak and ambiguous. It therefore recommended that these words be replaced by the words "must be met and satisfied." See Comments of the Natural Resources Defense Council on the U.S. Army Corps of Engineers' Interim Final Regulations To Implement Section 404 of the Federal Water Pollution Control Act, at 5 (undated) (on file with the authors).

141. CZMA § 307(c)(3), ELR 41703.

142. Whether the political realities of the time would permit EPA (or the Corps) to override the Secretary of Commerce's decision remains to be seen.

143. 33 C.F.R. § 209.120(i)(2)(ii), ELR 46333 (emphasis added).

144. For a more detailed discussion of the issue of excluded federal lands; see notes 99-111 supra and accompanying text.

145. And it is quite likely that some dredge or fill activities on excluded federal lands would "affect" the water quality of a rather large surrounding area.

146. 33 C.F.R. § 209.120(f)(3), ELR 46326.

147. FWPCA § 401(a)(1), ELR 41123 (emphasis added). Sections 301 and 302 concern effluent limitations, § 306 relates to national standards of performance, and § 307 pertains to toxic and pretreatment effluent standards.

148. FWPCA § 401(d), ELR 41122-23 (emphasis added).

149. See 33 C.F.R. §§ 209.120(e)(2)(ii)(b), -(e)(2)(iii), ELR 46325.

150. FWPCA § 401(a)(6), ELR 41122.

151. CZMA § 307(f), ELR 41704 (emphasis added). See notes 89-97 supra and accompanying text.

6 ELR 50047 | Environmental Law Reporter | copyright © 1976 | All rights reserved