DEPARTMENT OF PUBLIC POLICY

POL 663: Ocean Policy and Law

Lecture 4: Management of Coastal Resources The Coastal Zone Management Act (CZMA) Introduction
We can begin here by recalling the traditional zones of the coastline as more particularly described in Lecture 2, a visual representation of which is made available here:

From this visualization (and from our previous material on the subject) we can see the coastal zone includes both portions of dry land as well as portions of submerged land.1 As mentioned previously, the exact extent of the coastal zone varies depending on the
1

Submerged land is a term that refers to land underwater, such as bottom of lakes, oceans, etc.

Page 2 of 9 legal definition applied in a particular coastal state; we do not have a federal standardized definition of coastal zone in this sense, rather each coastal state provides a defined geographic boundary based on a number of factors. In this way we come to understand that the term coastal zone has a legal-political definition; although coastal zones will share similar physical characteristics from one state to another, there will be differences among these states in how they define the exact characteristics of their coastal zone. Beyond differences in the definitions of coastal zone adopted by each coastal state, there are also differences in the approaches coastal states take in the management of their defined coastal resources. For example, consider the following visual representation:

Coastal State A may be located in an area that is conducive to tourism, including use of its coastal waters for recreational purposes. For Coastal State A, water quality and natural resource protection might therefore be a high priority because these qualities are important contributors to its focus on tourism and the economic benefits that flow from tourist activities. Coastal State B may have different priorities when it comes to its coastal waters. Rather than having a thriving tourism industry, Coastal State B may have a history of utilizing its coastal waters for offshore oil and gas development. In this case, Coastal State B may prioritize energy development over water quality issues. Coastal State C may have a thriving local commercial fishing industry and identifies its costal waters as important nursery habitat where commercial fish species develop from juveniles to adults, thus Coastal State C may prioritize the protection of the coastal waters to support its commercial fishery. The examples of Coastal States A, B, and C above provide some insight into the different kinds of priorities that can exist among coastal states in the use of their coastal waters. Now imagine if coastal states existing in immediate proximity to one another having

Page 3 of 9 different priorities where those differences have the potential to impact each others priorities. Or, imagine the situation where a coastal states priorities for its coastal waters are being impacted by federal activities that exist just outside of the coastal states jurisdiction, for example a federal permit for oil and gas development existing just beyond the 3-mile jurisdictional limit of a coastal state that prioritizes the pristine water quality of its waters. The federal activity has the potential to negatively impact the coastal priority of the state in this case, such as where a leak in the drilling for oil can result in the oil being brought into the coastal waters by the natural movement of the tides. The point being made here is there is a strong potential for competing priorities between coastal states and also between a coastal state and the federal government to impact policy goals in using coastal and ocean resources. One legal framework that has been developed to help deal with these sometimes competing priorities and goals is the Coastal Zone Management Act (CZMA); our goal in this section is to better understand this federal statute and to see how it attempts to deal with conflicts among coastal states and the federal government.

Policy Impetus for the CZMA

Before delving into the statutory elements of the CZMA, we can take a moment to consider the policy setting from which the CZMA was derived, and by doing so get some understanding of the reasons behind the statute. In addition, by looking at the development of the CZMA, including the legal frameworks that constrain its powers, we can better understand some of the limitations of the CZMA as a tool for implementing policy objectives. To begin we bring forward our conceptual rendering of the hierarchy of laws:

The CZMA is a law, meaning it sits in the middle of our hierarchy; it was passed by our U.S. Congress in 1972 in order to set up a framework to ensure each coastal state

Page 4 of 9 managed its resources in a way that would limit the differences between coastal states. The impetus for this policy goal included the Stratton Commission Report, which was one of the first comprehensive reports on the marine resources of the United States. One of the recommendations of the report was to have a more centralized approach to the management of marine resources. Thus, by creating a federal law with certain management principles (the CZMA), some consistency would be created among coastal states in the manner in which coastal resources were identified, prioritized, utilized, and planned for. One of the questions that arose in the development of the CZMA was the degree of federal authority to pass legislation that commanded states in how they managed their coastal resources. Under traditional interpretations of federalism, the federal government has limited capacity to influence states in how they manage their sovereign resources, and this has historically included coastal resources (we will engage in an explicit discussion of this concept when we get to the materials on the Tidelands Controversy and the Submerged Lands Act). Since this issue of federalism is imbued into the U.S. Constitution (including the Tenth Amendment), our hierarchy of laws suggests constitutional limitations trump statutes (laws) like the CZMA that directly conflict with those constitutional principles. When applying our legal framework to the coastal zone, we find limits in how far the federal government can go in forcing coastal states into adopting specific policy goals geared towards the uniform management of coastal areas. The CZMA is an attempt to create such uniform standards, but the manner in which the statute goes about accomplishing this goal cannot be direct, for example utilizing command-and-control language that sets a standard and then forces coastal states to adhere to that standard; the lack of constitutional authority by the federal government to force coastal states to comply with uniform management approaches means the CZMA, as a representation of a policy preference, must implement the federal goal in a less direct manner. It is important to understand how the CZMA functionally operates by overlaying a legal framework analysis because it helps us to see limits on how the statute can implement the federal policy objective to create uniform coastal management standards. For example, we now know from our legal framework analysis that the federal government cannot force coastal states to adopt specific management standards (via command-and-control legislative directives for example). However, it is possible for the federal government to cajole (create incentives) coastal states into adopting these standards. And indeed, we find these very mechanisms of carrots contained in the CZMA as a means of getting coastal state adoption of federal standards. In fact, two of these carrots (federal funding and federal consistency) are main topics of our conversation in the CZMA itself. A final point before delving into the CZMA in detail is to recognize the impact of reduced legal authority on the ability of the federal government to get coastal states to adopt certain coastal management standards; the reduced authority means that the CZMA is really a consensus-building instrument from a policy standpoint. When legal authority is diminished (I cant tell you what to do with impunity), then the policy stance changes;

Page 5 of 9 I must look to a variety of ways to get you to see my point-of-view and, hopefully, adopt that view. This is a very different kind of policy stance, and as a result it impacts the manner in which a statute like the CZMA is implemented. Pay close attention to this unique policy setting as we move into a deeper review of the CZMA as a method for managing coastal resources.

Framework of the CZMA

The Coastal Zone Management Act (CZMA) is a federal statute, which means it is a law that is passed by Congress (and thus it sits below constitutional protections, like federalism, and above regulations that contradict express provisions of the statute). The stated policy goal of the CZMA in the statute is as follows: To preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nations coastal zone for this and succeeding generations. We can begin by noting these policy goals are a bit contradictory in relation to one another. For example, is the goal of preservation of coastal resources the same as development; can one preserve the coastal zone while simultaneously developing it? The same question can be posed towards the goals of restoration and development; is one restoring the coastal zone if they are developing it? Like many compromises, the CZMA is a statute that bears the hallmarks of building consensus; in order to garner enough votes of senators and representatives, the language in the statute often reflects the various stakeholders and groups that have vested interests in coastal areas. Thus, we are left with a policy statement in the statute that is somewhat ambiguous. However, we do know from this statement that coastal states adopting CZMA standards can develop plans that include any (or all) of these stated purposes above. In this way we have a legal framework through the CZMA that provides lots of latitude to coastal states. Pragmatically, the CZMA is meant to create a process (starting in 1972 when the statute was passed) that entices coastal states to develop coastal management plans. These plans become the basis from which states manage their coastal resources. Prior to the passage of the CZMA coastal states may or may not have had a coastal management planning process at the state level. Rather, many of the land use decisions about coastal areas often were delegated to local municipalities leading to inconsistent management decisions; Town A might provide for programmatic coastal development to protect sensitive coastal resources, while Town B might have no coastal development planning, rather combining coastal development with inland land use planning.2 So even though the
2

This can lead to an inconsistent use of coastal resources, for example not considering the potential for increased flooding and storm damage risks in the building standards for coastal properties. In addition, coastal land often is quite sensitive to disruption (for example sand dunes that serve as important habitat and protection from coastal erosion). As such special consideration of coastal land is often an important part of protecting coastal resources.

Page 6 of 9 CZMA provided wide latitude towards states in the development of those programs (see the policy goal language above), any programmatic approach to coastal management was a significant leap ahead of what existed before the CZMA. Operationally, the CZMA works in the following way: Coastal states submit coastal management plans to the National Oceanic and Atmospheric Administration (NOAA). NOAA reviews those plans to ensure they are in conformance with the federal standards (essentially to ensure the plans are programmatic in identifying and managing coastal resources in the state). If the plans are in conformance, then NOAA approves the plan.

Approval of the state coastal management plan triggers the two important carrots of the CZMA above. First, approved plans must then be implemented by the coastal states, and the implementation process can be expensive. The CZMA provides federal funds to the coastal state in order for the state to implement its coastal management plan thus there is a financial carrot of federal dollars. Second, federal consistency is offered to approved coastal management plans, which requires the federal government to consider the impact of its activities on coastal state priorities outlined in their management plans, and where possible, ensure those federal activities do not negatively impact stated coastal priorities. Consider the following figure as a starting point to explaining federal consistency in context:

Page 7 of 9 In the figure, the large red X located in federal jurisdiction represents a potential federal project: say an offshore oil and gas extraction platform. The purpose of the project would be to drill in federal waters into the ocean bottom below and begin extracting oil and gas deposits. One of the potential risks in drilling for oil and gas can emanate from the drilling rig system; a failure in the system can cause an oil leak similar to what occurred in the Gulf of Mexico in 2010 with the BP Oil Spill (Deep Horizon). Under the CZMA federal consistency requirements, the federal government is required to consider, in addition to other oil and gas leasing requirements, the potential impacts of drilling in this area on nearby coastal state resources. So in this case the federal government would have to look at the nearby coastal states management plan (assuming the coastal state had an approved plan under the CZMA) and consider the potential impacts of a spill on different aspects of the coastal states resources (the small red Xs in the state jurisdictional waters and coastal uplands). Under the example provided immediately above, we can consider how different coastal state priorities can impact the extent of federal review (and potential responses) under the federal consistency requirements of the CZMA. For example, Coastal State A might have a coastal management plan that prioritizes the purity of its water quality and coastline to highlight its reliance on coastal tourism (think Florida). The federal act of permitting an offshore oil and gas project near a coastal state that highlights the preservation, protection, and enhancement of its coastal resources can directly conflict with the states coastal state priorities. On the contrary, such a project might have less impact on a coastal state that prioritizes oil and gas development and, in fact, has a number of such projects already occurring within the 3-mile jurisdictional limit of the state (think Texas). In this situation the proposed federal project is more harmonious with coastal state priorities and thus unlikely to conflict with those priorities. In the first example of Coastal State A, the proposed federal plan is likely inconsistent with coastal priorities. As such, under the CZMA, the federal government must, to the extent practicable, modify its proposed plans to ensure the coastal state priorities are not jeopardized through federal action. To make the point clear, federal consistency under the CZMA forces the federal government to rethink how it uses its own sovereign property when that use has the potential to conflict with approved state coastal priorities. This is powerful because it represents an instance when the notion of supremacy under our traditional notions of federalism is reversed, leading some to refer to this provision of the CZMA as a reverse supremacy clause.3
3

Under traditional notions of supremacy, federal law generally trumps state law in most respects when those laws are in direct conflict with one another. Thus, reverse supremacy is meant to suggest the situation where state law trumps federal law under a direct conflict. Of course, under the CZMA, it is a federal agency (NOAA) that ultimately determines if there is a direct conflict between the federal action and the approved state coastal plan. This is not the same kind of objective third-party review we expect when we seek judicial review of a question of law (like the application of the Supremacy Clause to a dispute between state and federal rights).

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Policy Implications of the Carrots under the CZMA

The two federal carrots identified under the CZMA funding and deference have both impacted coastal management policy significantly in the United States. In the text you are provided with a discussion and interpretation of the case law development of the CZMA, including interpretations of such things as federal consistency in context; I will let that material speak for itself in terms of aiding in your understanding of the CZMA as a legal framework and the role case law has in interpreting that legal framework. What I want us to consider here is the policy implications that arise from these two carrots in terms of coastal policy. Consider that with the passage of the CZMA, all coastal states have now developed coastal management plans that are in compliance with federal standards. The fact that every coastal state now has a set of management priorities relating to coastal resources is significant, particularly if we compare this to the lack of comprehensive coastal planning that existed prior to the CZMAs enactment. Massachusetts now has an Office of Coastal Zone Management that implements (and further develops) integrated coastal management based on the planning that was originally done under the CZMA.4 California has its coastal management planning incorporated into statutory language under its State Coastal Act and implemented through the California Coastal Commission, an agency created to help implement coastal planning that was developed, in large part, through the financial inducements of the CZMA.5 Most coastal states have similar examples. The fact is the CZMAs financial inducements were largely successful at moving coastal states towards a more uniform set of management standards for coastlines. As such, the CZMA represents an important example of how policy goals can often be obtained by understanding and working within legal frameworks. As a matter of federalism, there was little direct authority the U.S. Government could claim to force coastal states into developing coastal management plans that incorporated federal standards. So instead of (1) doing nothing, or (2) violating constitutional principles of federalism, Congress created incentives (carrots) through the CZMA; history has proven that such enticements are actually effective means of accomplishing policy goals an important take-home message when thinking about policy development in the face of legal framework hurdles. From an implication standpoint, we understand that moving forward in developing coastal policies, the CZMA has helped provide a starting point; all coastal states now have coastal management plans that provide a foundation for coastal policy advancement. The other important policy implication from the CZMA derives from the second carrot, federal consistency. We know that federal actions that have the potential to impact approved coastal management priorities must, under the CZMA, be reviewed prior to the federal action, and if the federal action can be reasonably altered to protect the coastal
4 5

http://www.mass.gov/czm/ http://www.coastal.ca.gov

Page 9 of 9 priority, then it must. This reverse supremacy creates important policy directions for coastal states; knowing the coastal state priorities have a kind of trump over inconsistent federal actions changes the policy landscape. Prior to the CZMA coastal states had little reason to believe their priorities would trump federal priorities; the federal government was generally free to act upon its jurisdictional waters without much concern for the impacts of its action on coastal state resources. However, this is no longer the case and it presents an important change in the policy landscape that was heretofore defined by legal principles of federalism.6 Understanding this change in the policy landscape because of the CZMA provides a deeper way of considering the policy environment when we think about coastal management choices. END OF SECTION.

A clear example of this is provided in the McGuire reading on coastal planning and federal consistency: http://works.bepress.com/chad_mcguire/34/