1983 Coastal L. Memo 1 (1983)

handle is hein.journals/ocoaslme1983 and id is 1 raw text is: 






Ocean and Coastal Law  Center * School of Law * University of Oregon  - Eugene  97403





       e Coastal Law memo


Issue  3


March  1983


FEDERAL CONSISTENCY WITH STATE COASTAL PROGRAMS:
       California v. Watt and Kean v. Watt


     The federal Coastal Zone Management
Act   (CZMA) mandates  that all  federal
activities   directly  affecting   the
coastal  zone be  conducted in a  manner
consistent to the maximum extent practi-
cable  with  a federally  approved state
coastal  management plan.   But  at what
point  do  federal activities  directly
affect  the coastal zone?   Is a direct
effect  a physical  effect on  the lands
and  waters of the coastal zone?   Or is
the definition broader than that, there-
by  including  the  Department of  Inte-
rior's planning process  for oil and gas
lease  sales, the decision to  lease and
the  terms of the leases  to be offered?
This Coastal  Law Memo discusses the re-
cent  judicial  interpretations  of  the
CZMA  consistency  provisions  in  Cali-
fornia v. Watt,  683 F.2d 1254 (9th Cir.
1982),  rehearing denied, Nov. 10, 1982,
and  Kean v.  Watt No.  82-2420  (D. New
Jersey Sept.  17, 1982).  Also discussed
in  this Memo  are some questions  about
federal  consistency   not  answered  by
those decisions.

I.   The  Consistency Provisions of  the
Federal  Coastal   Zone  Management  Act
(CZMA)

     The  CZMA  has  two central  goals:
to  preserve,  [and]  protect  the  re-
sources  of the  nation's coastal  zone
and to  encourage and assist the states
to exercise  effectively their responsi-
bilities in the coastal zone through the
.  . . implementation of management pro-
grams  to achieve wise  use of the  land
and  water   resources  of  the  coastal
zone.   Congress  encouraged states  to
develop   coastal  management   programs
(CMPs) by providing  coastal states with
federal  funding  and   the  consistency
provisions of section 307 of the CZMA.

     The consistency  provisions of  the
CZMA confirm the quid pro  quo relation-
ship between the states  and the federal
government in the maInlageient uf coastal


resources.   In essence, the consistency
provisions    promise    that    federal
activities affecting state coastal zones
will   be    conducted   in   a   manner
consistent,   to  the   maximum  extent
practicable,    with   state    coastal
management programs  if the states deve-
lop  and implement CMPs and  if the CMPs
are  approved by the Department  of Com-
merce.   Specifically, federal activites
must  be consistent  with state CMPs  in
five  circumstances:    1) when  federal
agency activities  directly affect the
coastal zone; 2) when federal agency de-
velopment programs occur in the coast-
al  zone;  3) when  federal licenses  or
permits are issued to conduct activities
that directly affect the coastal zone;
4)  when the  Secretary of  Interior ap-
proves  plans  for  the exploration  and
production of oil and gas on lands leas-
ed  under  the  Outer Continental  Shelf
Lands  Act and  those  plans affect  any
land or  water use in  the coastal zone;
and 5) when  federal assistance is given
to state  and local activities directly
affecting the coastal zone.

     The  act does not  specifically in-
clude  federal activities that occur be-
fore  OCS leases  are sold and  industry
plans  for  exploration  are  submitted.
Coastal  states,  however,  have  viewed
prelease  activities as  federal activi-
ties  directly  affecting the  coastal
zone.  These prelease sale decisions de-
termine the scope  and nature of all the
oil and gas  activities in the sale area
on  the OCS.   Prelease actions  include
Interior's  decisions  on  which  tracts
will  be leased  and  whether the  lease
will  contain  stipulations to  minimize
environmental degredation.    (For a de-
tailed discussion of  the OCS lease sale
process and its nexus with the CZMA see,
Federal  Consistency,  Report 3  to  the
Oregon Outer  Continental Shelf  Oil and
Gas  Development  Task   Force,  January
1979;  and  Ocean  Law Memo,  Issue  12,
Feoruary 1979.)


Distributed by: OSU Extension Service' Sea Grant Marine Advisory Program, Corvallis, OR 97331

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