The Public-Private Mosaic
The Coastal Zone Management Act of 1972
The CZMA Nonpoint Source Pollution Provisions
As discussed in Unit 1, the ocean economy worldwide is vast, diverse, and a major contributor (in the US alone, its worth was estimated at $117 billion with over 2 million jobs in 2000). Coastal areas contribute an even larger share of the US economy, more than $1 trillion or a tenth of the annual GDP, according to the US Commission on Ocean Policy (2004). In addition to rich biodiversity and valuable fisheries, ocean and coastal areas provide ecosystem services including climate moderation and protection from storms. Managing the interface of land and water is a complex work in progress. This unit examines the tools within the Coastal Zone Management Act of 1972.
The Public-Private Mosaic
In contrast to the public oceans and coastal waters, the terrestrial coast is a complex patchwork of private and public lands. This mosaic of land use and the way it is managed individually and in aggregate has enormous implications on the biological intactness and quality of coastal forests, watersheds and the adjacent ocean, biodiversity, recreational opportunities, capacity to buffer the impacts of storms. Within and apart from the state-federal partnership tools within the CZMA, everyday local planning and land-use decisions matter and can have cumulative and long-ranging impact.
Although each state coastal management program (CMP) is unique, the programs address the broad spectrum of coastal issues identified as priorities by Congress in the CZMA. In reality, the national impact of the Coastal Zone Management Program is the result of many thousands of state and local decisions that impact the management and development of the coastal area. For example, a 2013 NOAA study analyzes the value of using “no-build areas” to protect the shoreftont, revealing the multitude of levels of government and methods used to advance shorefront protection.
Fletcher KM 2015
While public land beach divisions vary among coastal states, in general in the US common-law private ownership extends above the Mean High Tide (MHT) line, while the wet sand and submerged lands are vested in the state. In some states for historic reasons (Delaware, Maine, Massachusetts, Pennsylvania, Virginia) private rights may include the area to the Mean Low Tide (MLT) line. Coastal states hold legal title as public trustees to coastal waters and substrate and these rights are nontransferable.
Private landowners on waterways have special common law rights in conjunction with their property. Although the terms may be used interchangeably, littoral rights refer to rights pertaining to tidal waters; riparian rights refer to rights pertaining to freshwater. Such rights may include, for example, the right to build a dock or wharf. However, private and state rights are subordinate to important exceptions. The federal government retains two major interests in the coastal zone: navigation and navigation safety. Because of the federal navigation servitude, constructing a dock or wharf requires a permit authorized by the US Army Corps of Engineers.
Coastal states and the federal government interests and responsibilities in the coastal zone are increasingly visible and urgent. These priorities include public safety, flood control, hazard prevention and mitigation as illustrated by the impacts from recent hurricanes such as Harvey (August 17, 2017, $125 billion in damages), Katrina (August 2005, $108 billion in damages), Sandy (October 2012, that set the record for largest Atlantic hurricane) and Irene (September 2011). The major framework for coastal protection and the partnership is laid out in the Coastal Zone Management Act CZMA). The two most prominent features of the CZMA for the purposes of this Unit are the provisions regarding consistency with coastal CMPs, and the provisions on nonpoint source water pollution.
The Coastal Zone Management Act of 1972 (CZMA, 16 USC § 1451 et seq.)
The policy statement of CZMA contains a long list of Congressional priorities of resource protection, state assistance, and minimizing life and property loss, improving water quality, and improving public access (coast.noaa.gov/czm/act/sections/#303). Two pillars of the framework are state coastal management programs, which oversee and carry out their state coastal management plans (CMPs).
The 35 individual programs are reviewed, approved, and funded by NOAA’s Office of Ocean and Coastal Resource Management (OCRM). OCRM reviews state CMPs and progress on goals every five years, providing feedback for improvement. Early on, the federal funding provided a major incentive for participation; the annual funding allocations have decreased over time. A second incentive for states to maintain their programs is their right to weigh in on whether or not federally permitted activities should be authorized to take place off their coasts. States regularly review proposed activities to evaluate whether they are consistent with CMP enforceable policies.
The CZMA’s three main purposes are to encourage states to engage in proactive comprehensive planning in relation to the land and water uses in the coastal zone, to improve coordination and communication in governance (municipalities, Tribes, etc.), and to preserve, protect, and restore natural resources in the coastal zone.
In order to be valid, CMPs must include specific elements set forth in the statute (16 USC § 1455(d), see https://www.law.cornell.edu/uscode/text/16/1455). These elements form the basis of state management, and contain goals and priorities with which proposed activities requiring federal permits must comply under CZMA Section 307. Moreover, CMPs include all enforceable policies within a state’s coastal zone.
Basically all federal activities, or activities that require a federal permit inside or outside the coastal zone, may be reviewed if is reasonably foreseeable that the activity will affect any of the coastal state’s lands, waters, or natural resources. In addition, coastal states may elect to review an activity that is proposed in the waters off a neighboring state (interstate consistency). Anticipated effects may be direct or indirect in time and place. “Reasonably foreseeable” is a factual determination made on a case-by-case basis by the state agency conducting the review.
If a state objects to an activity, it is rare that the activity will proceed. First, if an activity of paramount federal interest, it may fall under a Presidential Exemption (meaning the activity is exempt from CZMA consistency review). Second, the Secretary of Commerce has but seldom uses his/her override discretion to override a coastal state’s objection to a permit. Such an override would be based on one of two grounds: that the proposed activity actually is consistent with the CZMA and CMP, or the activity is necessary due to national security.
Excerpt of Section 307(c)(1) through (3)(A)
(c) Consistency of Federal activities with State management programs; Presidential exemption; certification
(1)(A) Each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs. A Federal agency activity shall be subject to this paragraph unless it is subject to paragraph (2) or (3).
(B) After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of Title 28, or under any other applicable provision of Federal law, that a specific Federal agency activity is not in compliance with subparagraph (A), and certification by the Secretary that mediation under subsection (h) of this section is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the President determines that the activity is in the paramount interest of the United States. No such exemption shall be granted on the basis of a lack of appropriations unless the President has specifically requested such appropriations as part of the budgetary process, and the Congress has failed to make available the requested appropriations.
(C) Each Federal agency carrying out an activity subject to paragraph (1) shall provide a consistency determination to the relevant State agency designated under section 1455(d)(6) of this title at the earliest practicable time, but in no case later than 90 days before final approval of the Federal activity unless both the Federal agency and the State agency agree to a different schedule.
(2) Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs.
(3) (A) After final approval by the Secretary of a state’s management program, any applicant for a required Federal license or permit to conduct an activity, in or outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the enforceable policies of the state’s approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the state or its designated agency a copy of the certification, with all necessary information and data. Each coastal state shall establish procedures for public notice in the case of all such certifications and, to the extent it deems appropriate, procedures for public hearings in connection therewith……[end of excerpt]
Two flow charts illustrate the CZMA Section 307 review process.
The CZMA Nonpoint Source Pollution Provisions
The 1990 CZMA reauthorization amendments (CZARA) initiated a program of grants to help states improve specific aspects of their programs (protection of wetlands, coastal development’s impacts and development in areas prone to hazards, public access, marine debris, resource planning, and energy siting. CZARA also introduced a program to help control nonpoint source pollution in the coastal zone.
Land use managers in the coastal zone have modest tools within the state’s CMP to help tailor where and what kind of development takes place. In this professional area, property rights challenges based on the Fifth Amendment claim of unlawful “taking” of private property in the public interest without just compensation are always a risk; managers working in this area must consult local and state regulations, their attorneys general and legal cases. There are two general guidelines to keep in mind. The first is that any permanent physical invasion of the land through a government action may be considered a taking. The second guideline is that a court of law may find an ordinance or a land-use decision, if it goes too far, a taking; this is often construed in economic terms (the ordinance or decision has severely interfered with the property holder’s “investment backed expectations,” meaning s/he had to have already completed significant steps and expenditures toward project completion, or the ordinance or decision has left the property holder with no marketable use of her/his property. On the other hand, for example, if a state or local government takes action to prevent coastal erosion through otherwise lawful and valid means, that may be well within the scope of a government action that avoids the risk of a takings claim.
Protection of water quality is a required element in CMPs. The 1990 CZMA amendments (CZARA section 6217) established the Coastal Nonpoint Source Pollution Program (CNSPP) that requires participating states to create programs to control coastal nonpoint source pollution as part of the CMPs. The new nonpoint source (NPS) provisions mirror the relevant provisions within the Clean Water Act (section 319) and the two programs are coordinated. Under the CNSPP, NOAA and the EPA jointly review state nonpoint source pollution programs, and approve (or conditionally approve, with steps and a timeline for achievement or completion). The incentives for states to have approved CNSPP plans are powerful. States that fail to do so lose critical federal funding (CZMA and CWA) to support their CMPs.
The Clean Water Act’s Total Maximum Daily Load (TMDL) provisions can be a useful tool in reducing and preventing coastal nonpoint source pollution, as pointed out in Unit 5 with regard to the expansive and complex sources within the Chesapeake Bay watershed. States periodically report the condition of their water bodies based on whether the waters meet water quality standards sufficient to support their designated uses, with the mandatory baseline being “fishable and swimmable” from the CWA. If waters fall short, the state must define and declare the specific impairments (sediment, biological oxygen demand (BOD), pH, fecal coliforms, for example).
The TMDL program implements a “waste load allocation” to collectively reduce contaminants proportionately from contributing point sources with NPDES permits in order to help recover water quality in an impaired water body. However, when application of the waste load allocation to point sources alone is insufficient to restore water quality, the TMDL can flexibly be extended to NPS regardless of source (air pollution, land runoff, for example).
While the developments since CZARA hold promise, the advancement and practicability of the TMDL and the CNSPP programs to reduce or prevent NPS will depend strongly on coastal state capacity and enforcement in terms of adequate funding, data, science and technical personnel in the field.
In addition to expanding efforts to improve water quality in watersheds adjacent to the coastal zone, states are focused on coastal management tools that include low-impact development, coastal setbacks for new development, and outreach and education on emergency preparedness and hazard mitigation.
Beach diagram by author, adapted from Kalo et al. (2007) Coastal and Ocean Law Cases and Materials, Third ed. (West Publishers) p. 1, which was adapted from Brower, Access to the Nation’s Beaches: Legal and Planning Perspectives 19-20, 60-61 (1978).
Unit 9 Resources contains additional information relevant to coastal management.
Unit 10 will examine tools and possibilities represented by marine restoration.
Unit Study Questions
- If Professor Fletcher’s observation (quoted above) is accurate, coastal areas may suffer from death by a thousand cuts. Is this a problem of conceptual scale in decision-making? Theorize some tools and methods to support more broadly informed, holistic, and coordinated public decision outcomes for coastal development and coastal management at the local level (municipalities, counties, zoning ordinances).
- What are potential funding mechanisms to support coastal state efforts to stem NPS contaminants from their shores? At the outset, many development projects include upfront fees for sewer and stormwater hookup in order that counties and cities (thus taxpayers) are not solely burdened with these expenses. Are such fees or taxes, were they to be validly based on empirical water quality data derived before and after construction, one possible solution? What kinds of implications does coastal NPS have in the context of groundwater and drinking water, often scarce resources in coastal areas? Fisheries and shellfish? Public health? Recreation in the coastal zone? Property enjoyment and values (when areas suffer harmful algal blooms or beaches are regularly closed due to bacteria or pathogens such as E.coli?)