Citation
The coastal zone management act of 1972

Material Information

Title:
The coastal zone management act of 1972
Creator:
Lamdin, Randy
Publication Date:
Language:
English
Physical Description:
187, [2] pages : color maps ; 28 cm

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Subjects / Keywords:
Coastal zone management -- Law and legislation -- United States ( lcsh )
Coastal zone management -- Law and legislation ( fast )
United States ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (pages 188-189).
General Note:
Cover title.
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Planning and Community Development, College of Design and Planning.
Statement of Responsibility:
a planning success or failure? / Randy Lamdin.

Record Information

Source Institution:
University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
13740544 ( OCLC )
ocm13740544
Classification:
LD1190.A78 1985 .L35 ( lcc )

Full Text
Z-AWGlV
ENVIRONMENTAL DESIGN AIJRARIA LIBRARY
THE COASTAL ZONE MANAGEMENT ACT OF 1972...
A PLANNING SUCCESS OR FAILURE?
RANDY LAMB8N
UNIVERSITY OF COLORADO (DENVER) COLLEGE OF DESIGN AND PLANNING THESIS PROJECT-SPRING 1985
A+P
LD
1190
A78
1985
L35
ADVISOR: DR. HERBERT H. SMITH












Date Due







TABLE OF CONTENTS
The Coastal Zone Management Act of 1972...Success or Failure?
The Coastal Zone Management Act of 1972
1. Introduction......................................................1
2. Development of Coastal Zone Management Legislation................1
3. Coastal Zone Management Legislation in Context -
An Overview.....................................................2
A. Limiting Federal Intervention.................................3
B. Recognition of Existing Authoritative
Distribution at the State Level.............................3
C. Promotion of the National Interest in
Effective Coastal Zone Management............................4
4. The Coastal Zone Management Act of 1972 and Commentary............4
5. Amendments to the Coastal Zone Management Act of 1972............60
6. Implementation of the Coastal Zone Management Act of 1972........62
7. Summary..........................................................66
Three Case Study Coastal States
1. Purpose..........................................................68
2. California Coastal Zone Management Program (CCZMP)...............70
A. Coastal History and State Coastal Legislation...............70
B. General Program Review and Organizational Analysis
1. General Program Review..................................73
2. Organizational Analysis.................................79
C. Coastal Environmental and Land-Use Achievements............83
3. Federal/State/Local Governmental Fiscal Allocations..............85
4. Coastal-Related Environmental/Land-Use Litigation................88
5. California Coastal Zone Management Program Evaluation...........Ill
6. Florida Coastal Zone Management Program (FCZMP).................116
A. Coastal History and State Coastal Legislation...............116
B. General Program Review and Organizational Analysis
1. General Program Review.................................117
2. Organizational Analysis................................123
C. Coastal Environmental and Land-Use Achievements.............123
7. Federal/State/Local Governmental Fiscal Allocations.............128
8. Coastal-Related Environmental/Land-Use Litigation...............131
9. Florida Coastal Zone Management Program Evaluation..............140
10. New Jersey Coastal Zone Management Program (NJCZMP).............143
A. Coastal History and State Coastal Legislation...............143
B. General Program Review and Organizational Analysis
1. General Program Review.................................144
2. Organizational Analysis................................149
C. Coastal Environmental and Land-Use Achievements...........153
11. Federal/State/Local Governmental Fiscal Allocations.............155
12. Coastal-Rel ated Environmental/Land-Use Litigation..............158
13. New Jersey Coastal Zone Management Program Evaluation...........174


TABLE OF CONTENTS (continued)
Conclusion
1. Purpose........................................................177
2. Analysis of the Coastal Zone Management Act of 1972
as it relates to Planning.....................................177
A. Coastal Zone Management Activity leading to
new State Legislation......................................177
B. Coastal Zone Management Activity as a Stimulus
to Land-Use Planning.......................................179
C. Coastal Zone Management Activity and Land-Use
Development................................................179
D. Coastal Zone Management Activity and Regulatory
Streaml ining..............................................179
E. Coastal Zone Management Activity and Environmental
Quality....................................................180
F. Coastal Zone Management Activity and Management
Knowledge..................................................180
G. Coastal Zone Management Activity and Consumer
Protection.................................................180
3. Analysis of the Three State Coastal Zone Management
Programs........................................................180
A. Overall State Coastal Zone Management Programs.............180
B. Federal/State/Local Governmental Fiscal Allocations........182
C. Coastal-related Environmental/Land-Use Litigation..........183
4. The Coastal Zone Management Act of 1972 ...
A Planning Success or Failure?..................................183
5. A Recommendation for the Coastal Zone Management Act
of 1972..............................................
185


TABLES, FIGURES, AND MATRICES
INTRODUCTION
Table 1. Status of State Coastal Zone Management Programs.............64
CALIFORNIA
Figure 1. California's Coastal Zone................................71
Figure 2. State Agency Relationships in California's
Coastal Zone Management Program.........................81
Figure 3. State Agency-Local Government Relationship in
Cal ifornia.............................................82
Matrix 1. California Federal Grant Support.......................86
Matrix 2. California State/Local Grant Support...................87
FLORIDA
Figure 1. Statutory Authorities and State Agencies of
Florida's Coastal Zone Management Program..............124
Figure 2. Florida's Coastal Zone..................................127
Matrix 1. Florida Federal Grant Support.........................129
Matrix 2. Florida State/Local Grant Support.....................130
NEW JERSEY
Figure 1. New Jersey's Coastal Zone...............................145
Figure 2. Department of Environmental Protection
Organizational Chart...................................151
Figure 3. Division of Coastal Resources Organizational
Chart..................................................152
Matrix 1. New Jersey Federal Grant Support......................156
Matrix 2. New Jersey State/Local Grant Support..................157
CONCLUSION
Figure 1. Inputs, Influences and Outputs of Coastal Zone
Management Activity....................................178


The Coastal Zone Management Act of 1972
1. Introduction
The Coastal Zone Management Act of 1972 has promoted a federal, state and local government partnership for the planning and management of coastal zone resources. Since its passage in 1972, the Coastal Zone Management Act has had program participation by all thirty-five coastal states and territories. To date, twenty-eight coastal states and territories have developed coastal zone management programs which have been reviewed and approved by the National Oceanic and Atmospheric Administration (NOAA).
The coastal states' experiences under the title have been diverse, reflecting their individual political arenas and particular environmental characteristics. This thesis will review a variety of these experiences, within the general context of evaluating the development and implementation of the Coastal Zone Management Act of 1972.
The implementation of this title has provided practical lessons for land-use and environmental planners regarding their efforts to achieve selected goals and resolve particular issues. The Act has also provided planners with valuable experience regarding intergovernmental liaison and cooperation, planning, program development and program implementation. By affecting a comprehensive review of the development and implementation of the Coastal Zone Management Act of 1972, it should enhance the understanding of the complex institutional constraints and legal problems that impact national land-use planning efforts.
2. Development of Coastal Zone Management Legislation
Similar to other bills passed by Congress, the formulation and passage of coastal zone management legislation was the product of problem identification and institutional responsiveness over a period of years.
Marine environmental concern grew among state and local governmental officials, members of the scientific community, special interest groups and private citizens throughout the 1960's. Influential reports published by the U. S. Commission on Marine Science, Engineering and Resources in 1969 and the National Academy of Science's Committee on Oceanography in 1959 noted the significance of the coastal zone and the inability to effectively manage the mixed land-uses characteristic in such areas. "Effective management to date has been thwarted by a variety of government jurisdictions involved, the low priority afforded marine matters by state governments, the diffusion of responsibilities among state aqencies and the failure of state agencies to develop long-range plans."'


The Stratton Commission, a commission appointed by the U. S. Commission on Marine Science, Engineering and Resources, recommended that state coastal zone management programs be facilitated through federal legislation.
As environmental consciousness grew in the late 1960's, so too, did an appreciation of the resource value and fragility of the coastal zone. The Torrey Canyon and Santa Barbara oil spills in California's coastal zone were major stimuli that kindled public awareness and concern.
Only months after the Stratton Commission report was released, Senator Warren G. Magnuson introduced the Coastal Zone Management Act of 1969. The Nixon Administration also introduced coastal zone management legislation to the House of Representatives and the Senate in 1969. Because of an interest to develop national land-use planning legislation, which would include coastal zone land-use planning, the Administration faced a difficult political dilemma. "The decision to introduce coastal zone management legislation first, and at a later date introduce land-use legislation, caused a considerable problem [because it raised the possibility] that...two grant programs, accomplishing about the same objectives, would continue to exist... but the time [for the land use bill] was not ripe... The clamor for protection of coastal zones was at the time much greater than the demand for land-use regulation."2 Such interaction between coastal zone management proposals and national land-use planning proposals promoted the final "shaping" of the Coastal Zone Management Act of 1972.
In 1970, Senator Henry Jackson introduced the first of several national land-use bills before Congress in the 1970-1972 era. Other land-use legislation was proposed for public lands management, power plant siting, strip mining regulation, public beach access and island conservation and preservation.
The legislative atmosphere concerning a coastal zone management policy was further complicated by the Nixon Administration's change of priorities. During the early sessions of the 92nd Congress, the Administration reversed its previous support for coastal zone management legislation in favor of a comprehensive land-use program to include coastal zone areas. The effect of the Administration's change was twofold in nature. First of all, it integrated coastal and land policy legislation considerations in various land-use Congressional subcommittees. Thus, it effectively modified the scope and language of the Coastal Zone Management Act of 1972 as passed. The second effect the Administration's decision had upon the Act was the growing perception in Congress that "solutions worked out in the coastal zone in advance of a national land-use planning and development program can serve as a prototype."-^ Thus, Congressional support grew for passage of the Coastal Zone Management Act at the expense of all national land-use planning proposals.
3. Coastal Zone Management Legislation in Context An Overview
From an historical perspective, coastal zone management
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legislation easily passed in both the Senate and House of
Representatives in 1972. The only conflict, which was resolved by a joint committee, was which federal agency was going to administer the program. In a final decision it was decided to place the program in the National Oceanic and Atmospheric Administration, under the Department of Commerce, rather than in the Department of the
Interior. Opponents of this decision argued that if a national
land-use planning bill was passed, it would be administered by the Department of the Interior. Such a situation would promote poor
coordination and duplicative efforts between the two programs. As a compromise, language was adopted in the Coastal Zone Management Act of 1972 which provided for interagency coordination in the event that a national land-use planning law became a reality. To date, no national land-use planning bills have been passed by any
Congressional session since passage of the Coastal Zone Management
Act of 1972.
Before embarking upon a review of the Coastal Zone Management
Act of 1972, it is important to acknowledge the fact that the title reflects a significant legislative concern with preserving the states' traditional role as the authority in land-use planning and regulation. Consequently, the title also depicts a sensitivity for the difficulty of imposing a new Federal management program upon existant coastal state governments and their respective state agencies. The most significant of these features are outlined in the following three passages.
A. Limiting Federal Intervention
During the consideration of the Coastal Zone Management Act of 1972 and numerous national land-use planning bills, various legislators expressed fears that the implementation of these types of programs would significantly affect federal-state relations. Some Congressional representatives warned that "federal planning" would replace existant state and local governmental controls and ultimately threaten the traditional private property rights of individual citizens. As a result of these feelings, coastal states and territories are not required to participate in the Federal coastal zone management program as defined by this title.
B. Recognition of Existing Authoritative Distribution at the State Level
The introduction of such federal legislation and its passage has definitely affected the allocation of regulatory authority and decisionmaking at the state level. Dependent upon the general technique for control of land and water uses in the coastal zone selected under Section 306 (e)(1) of the Coastal Zone Management Act of 1972, local governments could also be similarly affected. As is the case with this title, "because the Submerged Lands Act recognized that coastal states own the submerged lands and resources of the territorial sea, it was politically and legally difficult to force
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states to establish some new type of territorial sea management."4 Therefore, the title recognizes the preexistance of state authority and encourages coastal states to establish a new level of planning and management with federal guidance and assistance.
C. Promotion of the National Interest in Effective Coastal Zone Management
Despite Congressional concern to restrict federal power under this title, Congress saw the need for national involvement in managing the resources of our Nation's coastal zone. As Section 302 of the Act states:
(a) There is a national interest in the effective management, beneficial use, protection and development of the coastal zone.
(b) The coastal zone is rich in a variety of natural, commercial, recreational, ecological, industrial, and esthetic resources of immediate and potential value to the present and future well-being of the Nation.
(e) Important ecological, cultural, historic, and esthetic values in the coastal zone which are essential to the well-being of all citizens are being irretrievably damaged or lost.
(h) In light of competing demands and the urgent need to protect and give high priority to natural systems in the coastal zone, present state and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate.
This concept of a national interest in seeking effective coastal zone management and the defined inadequacy of state and local governmental management efforts served as the primary impetus for federal involvement in coastal zone planning and management.
In order to promote the national interest, Congress incorporated numerous incentives in the title to encourage coastal state participation in the state coastal management program. These incentives include financial assistance for coastal management program development, financial assistance for coastal management program implementation, financial assistance for other programs, the federal consistency requirement and the opportunity for state governments to increase state and local planning efforts. These incentives will be covered in the next section. Because of the diversity of state coastal zone resource and management concerns, uniform standards and requirements to achieve the national interest could not be facilitated. The solution to such differences was flexible standards in the context of the Coastal Zone Management Act of 1972.
4. The Coastal Zone Management Act of 1972 and Commentary
The purpose of this section is to present the legislation enacted by Congress and signed into law, called the Coastal Zone Management Act of 1972... "an Act to establish a national policy and
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develop a national program for the management, beneficial use, protection, and development of the land and water resources of the Nation's coastal zones, and for other purposes."
The major intention of the section is twofold in nature. The first goal is to enable the reader to establish a basic familiarity with the Act itself. The second goal is to provide a section by section commentary to provide the reader with some points to consider concerning the Act.
Additions that are incorporated are derived from the five amendments to the Act. The five amendments are Public Law 93-612 of January 2, 1975; Public Law 94-370 of July 26, 1976; Public Law 95-219 of December 28, 1977; Public Law 95-372 of September 18, 1978 and Public Law 96-464 of October 17, 1980. Although five amendments exist, only three are considered as significant. These particular amendments will be reviewed in the subsequent section.
COASTAL ZONE MANAGEMENT ACT OF 1972
(Public Law 92-583, 16 U.S.C. 1451 et seq., October 27, 1972)
CONGRESSIONAL FINDINGS
SEC. 302 The Congress finds that -
(a) There is a national interest in the effective management, beneficial use, protection, and development of the coastal zone. COMMENTARY
(a) Of prime importance in this subsection is the phrase,
"There is a national interest..." What is lacking is a definitive term of what the national interest should actually be. While
"effective management" is almost adequate, "beneficial use, protection, and development" are too subjective in nature. Since the subject revolves around land and water use planning and management, perhaps a simple phrase such as "wise land and water use planning and management" would be more appropriate.
(b) The coastal zone is rich in a variety of natural,
commercial, recreational, ecological, industrial and esthetic resources of immediate and potential value to the present and future well-being of the Nation.
COMMENTARY
(b) This subsection presents a generic listing of coastal resources which have both immediate and future value to the Nation. What is interesting to note, is that this Congressional finding depicts the variety of coastal zone resources, and the justifiable need for a national, multiple land and water use strategy.
(c) The increasing and competing demands upon the lands and waters of our coastal zone occasioned by population growth and economic development, including requirements for industry, commerce, residential development, recreation, extraction of mineral resources and fossil fuels, transportation and navigation, waste disposal, and harvesting of fish, shellfish, and other living marine resources,
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have resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion. COMMENTARY
(c) What is noteworthy in this subsection is the effective presentation of human needs in the form of "population growth and economic development," versus the adverse environmental impacts created by such human activity in our fragile coastal zone.
(d) The coastal zone, and the fish, shellfish, other living marine resources, and wildlife therein, are ecologically fragile and consequently extremely vulnerable to destruction by man's alternations.
(e) Important ecological, cultural, historic, and esthetic values in the coastal zone which are essential to the well-being of all citizens are being irretrievably damaged or lost.
COMMENTARY
(d)(e) These two subsections point out the frequent adverse impacts that man's intrusion can render upon the natural resources in the coastal zone.
(f) New and expanding demands for food, energy, minerals, defense needs, recreation, waste disposal, transportation, and industrial activities in the Great Lakes, territorial sea, and Outer Continental Shelf are placing stress on these areas and are creating the need for resolution of serious conflicts among important and competing uses and values in coastal and ocean waters.
COMMENTARY
(f) While the bulk of this subsection reemphasizes the competing demands placed upon the coastal zone as outlined in Subsection 302 (c) above, the important phrase is, "are creating the need for resolution of serious conflicts among important and competing uses and values in coastal and ocean waters." While the need for resolution of conflict is undeniable, the word "important" isn't necessary and "competing uses and values" makes reference to multiple land and water use decisionmaking in a very subjective manner. In the interest of simplicity, I would recommend, "are creating the need for resolution of conflicts among competing land and water uses in the coastal zone of our Nation."
(g) Special natural and scenic characteristics are being damaged by ill-planned development that threatens these values. COMMENTARY
(g) Although this subsection is fashioned after Subsection 302
(d) and (e), it is appropriate because it points out the aesthetical losses sustained in the coastal zone because of inadequate land and water use planning and development.
(h) In light of competing demands and the urgent need to protect and to give high priority to natural systems in the coastal zone, present state and local institutional arrangements for planning
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and regulating land and water uses in such areas are inadequate. COMMENTARY
(h) This subsection, along with Subsection 302 (i), are the
most important subsections in this section. The key phrases to note here are, "the urgent need to protect and to give high priority to natural systems in the coastal zone" and "present state and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate." It is important to note the
entirety of the first phrase and that state and local land and water use planning and regulatory efforts in the coastal zone have been deemed as inadequate by the President and Congressional members.
(i) The key to 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 lands 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. COMMENTARY
(i) As aforementioned in the previous subsection commentary, this subsection also plays an important role in this section. The critical wording in this subsection is the phrase, "to encourage the states to exercise their full authority." While "encourage" can be defined as, "to stimulate by assistance," it doesn't imply an absolute involvement in the Act's programs by each coastal state or territory. In fact, this wording makes state involvement under the Coastal Zone Management Act of 1972 a voluntary proposition. This is a serious flaw in an attempt towards the establishment of a national program to affect wise land and water use planning and management in the Nation's coastal zone.
(j) The national objective of attaining a greater degree of energy self-sufficiency would be advanced by providing Federal financial assistance to meet state and local needs resulting from new or expanded energy activity in or affecting the coastal zone. COMMENTARY
(j) Although the national objective of attaining energy self-sufficiency is unquestioned, this subsection essentially promotes energy production activities in the coastal zone. One must carefully examine this national interest with the national interest of protecting the natural systems in the coastal zone. If the coastal zone is indeed an important natural system, perhaps the development of energy resources out of the coastal zone would be a viable strategy. Such energy alternatives as solar, wind and hydroelectric should be considered instead of our continual reliance upon finite fossil fuels. The conflict of two national interests within the context of these Congressional finds shows the complexity of the issue of wise land and water use planning and management in the coastal zone.
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CONGRESSIONAL DECLARATION OF POLICY
SEC. 303. The Congress finds and declares that it is the national policy
(1) to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations:
COMMENTARY
(1) While this subsection declares that it is the national policy to "preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone," the conflicts of interest concerning these goals is obvious. Again, a change of context such as, "promote wise land and water use planning and management of the resources of the Nation's coastal zone," would eliminate the conflicting terminology.
(2) to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve 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 needs for economic development, which programs should at least provide for
COMMENTARY
(2) This subsection is inherently weak as it pertains to a national policy which "encourages the states to exercise effectively their responsibilities in the coastal zone." If a national policy is established to promote a national interest, it stands to reason that a voluntary program won't ensure total compliance.
(A) the protection of natural resources, including wetlands, floodplains, estuaries, beaches, dunes, barrier islands, coral reefs, and fish and wildlife and their habitat, within the coastal zone.
(B) the management of coastal development to minimize the loss of life and property caused by improper development in flood-prone, storm surge, geological hazard, and erosion-prone areas and in areas of subsidence and saltwater intrusion, and by the destruction of natural protective features such as beaches, dunes, wetlands, and barrier islands.
(C) priority consideration being given to coastal-dependent uses and orderly processes for siting major facilities related to national defense, energy, fisheries development, recreation, ports and transportation, and the location, to the maximum extent practicable, of new commerical and industrial developments in or adjacent to areas where such development already exists.
(D) public access to the coasts for recreation purposes. COMMENTARY
(A)-(D) Although seemingly obvious areas of concern in the coastal zone, these subsections were amendments to the original Coastal Zone Management Act of 1972. As such, these additions are positive steps towards the establishment of bonafide directions
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regarding environmental planning in the Nation's coastal zone.
(E) assistance in the redevelopment of deteriorating urban waterfronts and ports and sensitive preservation and restoration of historic, cultural, and esthetic coastal features,
COMMENTARY
(E) This subsection is unique in that it addresses the need for historical preservation and economic development of neglected coastal areas. The insight utilized to make this a separate and distinct subsection is noteworthy.
(F) the coordination and simplification of procedures in order to ensure expedited governmental decision-making for the management of coastal resources,
(G) continued consultation and coordination with, and the giving of adequate consideration to the views of, affected Federal agencies,
(H) the giving of timely and effective notification of, and opportunities for public and local government participation in, coastal management decisionmaking, and
(I) assistance to support comprehensive planning, conservation, and management for living marine resources, including planning for the siting of pollution control and aquaculture facilities within the coastal zone, and improved coordination between State and Federal coastal zone management agencies and State and wildlife agencies; and COMMENTARY
(F)-(I) These subsections briefly outline general planning goals that coastal states should strive for in their efforts to affect coastal zone management. While these subsections all involve various aspects of planning, all are integral parts of the larger goal, that of an effective state coastal zone management program.
(3) to encourage the preparation of special area management plans which provide for increased specificity in protecting
significant natural resources, reasonable coastal-dependent economic growth, improved protection of life and property in hazardous areas, and improved predictability in governmental decisionmaking; and COMMENTARY
(3) This subsection is a general category for special area management planning needs, specifically natural resources, economic development and natural hazards. The two shortcomings of this subsection are purely subjective in nature. The word "reasonable" in the phrase, "reasonable coastal-dependent economic growth" should be eliminated, as should the entire phrase, "and improved predictability in governmental decisionmaking."
(4) to encourage the participation and cooperation of the public, state and local governments, and interstate and other regional agencies, as well as of the Federal agencies having programs affecting the coastal zone, in carrying out the purposes of this title.
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COMMENTARY
(4) Although a summation subsection, the message is to ensure that effective liaison is established between all factions involved in the respective state coastal zone management program planning process and implementation.
DEFINITIONS
SEC. 304. For the purposes of this title--
(1) The term "coastal zone" means 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 islands, 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 from the shorelines 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.
(2) The term "coastal resource of national significance" means
any coastal wetland, beach, dune, barrier island, reef, estuary, or fish and wildlife habitat, if any such area is determined by a
coastal state to be a substantial biological or natural storm protective value.
(3) The term "coastal waters" means (A) in the Great Lakes
area, the waters within the territorial jurisdiction of the United States consisting of the Great Lakes, their connecting waters, harbors, roadsteads, and estuary-type areas such as bays, shallows, and marshes and (B) in other areas, those waters, adjacent to the shorelines, which contain a measurable quantity or percentage of sea water, including but not limited to, sounds, bays, lagoons, bayous, ponds, and estuaries.
(4) The term "coastal state" means a state of the United States
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. For
the purposes of this title, the term also includes Puerto Rico, the
Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, and the Trust Territories of the Pacific Islands, and American Samoa.
(5) The term "coastal energy activity" means any of the following activities if, and to the extent that (A) the conduct, support, or facilitation of such activity requires and involves the siting, construction, expansion, or operation of any equipment or facility; and (B) any technical requirement exists which, in the determination of the Secretary, necessitates that the siting, construction, expansion, or operation of such equipment or facility
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be carried out in, or, in close proximity to, the coastal zone of any coastal state:
(i) Any outer Continental Shelf energy activity.
(ii) Any transportation, conversion, treatment, transfer, or storage of liquefied natural gas.
(iii) Any transportation, transfer, or storage of oil, natural
gas, or coal (including, but not limited to, by means of any deep-water port, as defined in section 3(10) of the Deepwater Port
Act of 1974 (33 U.S.C. 1502(10))).
For purposes of this paragraph, the siting, construction, expansion, or operation of any equipment or facility shall be "in
close proximity to the coastal zone of any coastal state if such siting, construction, expansion, or operation has, or is likely to have, a significant effect on such coastal zone."
(6) The term "energy facilities" means any equipment or
facility which is or will be used primarily -
(A) in the exploration for, or the development, production, conversion, storage, transfer, processing, or transportation of, any energy resource; or
(B) for the manufacture, production, or assembly of equipment,
machinery, products, or devices which are involved in any activity
described in subparagraph (A).
The term includes, but is not limited to (i) electric generating plants; (ii) petroleum refineries and associated facilities; (iii) gasification plants; (iv) facilities used for the transportation conversion, treatment, transfer, or storage of liquefied natural gas; (v) uranium enrichment or nuclear fuel processing facilities; (vi) oil and gas facilities, including platforms, assembly plants, storage depots, tank farms, crew and supply bases, and refining complexes; (vii) facilities including deepwater ports, for the transfer of petroleum; (viii) pipelines and transmission facilities; and (ix) terminals which are associated with any of the foregoing.
(7) The term "estuary" means that part of a river or stream or other body of water having unimpaired connection with the open sea, where the sea water is measurably diluted with fresh water derived from land drainage. The term includes estuary-type areas of the Great Lakes.
(8) The term "estuarine sanctuary" means a research area which may include any part or all of an estuary and any island, transitional area, and upland in, adjoining, or adjacent to such estuary, and which constitute to the extent feasible a natural unit, set aside to provide scientists and students the opportunity to examine over a period of time the ecological relationships within the area.
(9) The term "Fund" means the Coastal Energy Impact Fund established by section 308(h).
(10) The term "land use" means activities which are conducted in, or on the shorelands within, the coastal zone, subject to the requirements outlined in section 307(g).
(11) The term "local government" means any political subdivision of, or any special entity created by, any coastal state
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which (in whole or part) is located in, or has authority over, such state's coastal zone and which (A) has authority to levy taxes, or to establish and collect user fees, or (B) provides any public facility or public service which is financed in whole or part by taxes or user fees. The term includes, but is not limited to, any school district, fire district, transportation authority, and any other special purpose district or authority.
(12) The term "management program" includes, but is not limited to, a comprehensive statement in words, maps, illustrations, or other media of communication, prepared and adopted by the state in accordance with the provisions of this title, setting forth objectivies, policies, and standards to guide public and private uses of lands and waters in the coastal zone.
(13) The term "outer continental shelf energy activity" means
any exploration for, or any development or production of, oil or
natural gas from the outer continental shelf (as defined in section 2(a) of the Outer Continental Shelf Lands Act (43 U.S.C. 1331(a)), or the siting, construction, expansion, or operation of any new or
expanded energy facilities directly required by such exploration, development, or production.
(14) The term "person" means any individual; any corporation,
partnership, association, or other entity organized or existing under the laws of any state; the Federal Government; any state, regional, or local government; or any entity of any such Federal, state,
regional, or local government.
(15) The term "public facilities and public services" means
facilities or services which are financed, in whole or in part, by any state or political subdivision thereof, including, but not limited to, highways and secondary roads, parking, mass transit, docks, navigation aids, fire and police protection, water supply,
waste collection and treatment (including drainage), schools and education, and hospitals and health care. Such term may also include any other facility or service so financed which the Secretary finds will support increased population.
(16) The term "Secretary" means the Secretary of Commerce.
(17) The term "special area management plan" means a
comprehensive plan providing for natural resource protection and reasonable coastal-dependent economic growth containing a detailed and comprehensive statement of policies; standards and criteria to
guide public and private uses of land and waters; and mechanisms for timely implementation in specific geographic areas within the coastal zone.
(18) The term "water use" means activities which are conducted
in or on the water; but does not mean or include the establishment of any water quality standard or criteria or the regulation of the
discharge or runoff of water pollutants except the standards, criteria, or regulations which are incorporated in any program as
required by the provisions of section 307(f).
COMMENTARY
(1)-(18) Rather than digress into each specific definition, it is necessary to mention two salient points regarding this section.
- 12 -


The first point is that entire definition additions are usually the result of either an amendment or are added because of a need to clarify otherwise ambiguous terminology, previously undefined. The second point is that partial additions to definitions usually appear because they were unintentionally omitted from the existing law. Regardless of a full or partial definition addition, or for that matter a deletion, the intention of this section is terminology clarification.
MANAGEMENT PROGRAM DEVELOPMENT GRANTS
SEC. 305.(a) The Secretary may make grants to any coastal state -COMMENTARY:
SEC. 305.(a) The discretionary power given to the Secretary of Commerce to deny or give grants to coastal states is the key feature of this section.
(1) under subsection (c) for the purpose of assisting such state in the development of a management program for the land and water resources of its coastal zone; and
(2) under subsection (d) for the purpose of assisting such state in the completion of the development, and the initial implementation of its management program before such state qualifies for administrative grants under section 306.
CCMM ENTARY
(1)(2) Both of these subsections concisely outline procedures necessary for coastal states to follow if they seek Federal grants under Section 305 or 306 of the Coastal Zone Management Act of 1972.
(b) The management program for each coastal state shall include each of the following requirements:
CCMM ENTARY
(b) This subsection is important because it outlines the basic coastal areas of concern in which a state must address in order to attain an approved coastal zone management program. This Federal approach was instrumental in attaining some tangible degree of consistency among the coastal states regarding their coastal zone management programs.
(1) An identification of the boundaries of the coastal zone subject to the management program.
(2) A definition of what shall constitute permissible land uses and water uses within the coastal zone which have a direct and significant impact on the coastal waters.
(3) An inventory and designation of areas of particular concern within the coastal zone.
(4) An identification of the means by which the state proposes to exert control over the land uses and water uses referred to in paragraph (2), including a listing of relevant constitutional provisions, laws, regulations, and judicial decisions.
(5) Broad guidelines on priorities of uses in particular areas,
13 -


including specifically those uses of lowest priority.
(6) A description of the organizational structure proposed to implement such management program, including the responsibilities and interrelationships of local, areawide, state, regional, and interstate agencies in the management process.
CCMM ENTARY
(l)-(6) These six subsections were the initial requirements as detailed in the Public Law 92-583, October 27, 1972 version of the Coastal Zone Management Act. As an original requirements list this was undoubtedly a good start.
(7) A definition of the term 'beach' and a planning process for the protection of, and access to, public beaches and other public coastal areas of environmental, recreational, historical, esthetic, ecological, or cultural value.
(8) A planning process for energy facilities likely to be located in, or which may significantly affect, the coastal zone, including, but not limited to, a process for anticipating and managing the impacts from such facilities.
(9) A planning process for (A) assessing the effects of shoreline erosion (however caused), and (B) studying and evaluating ways to control, or lessen the impact of, such erosion, and to restore areas adversely affected by such erosion.
No management program is required to meet the requirements in paragraphs (7), (8), and (9) before October 1, 1978.
CCMM ENTARY
(7)-(9) Although added through amendments, these three subsection additions were targeted towards addressing specific planning issues, rather than the general subsections aforementioned. While these additions are definitely needed to assist planning efforts in the coastal zone, (9) could be improved significantly by making it cover and address coastal zone related natural hazards.
(c) The Secretary may make a grant annually to any coastal state for the purposes described in subsection (a)(1) if such state reasonably demonstrates to the satisfaction of the Secretary that such grant will be used to develop a management program consistent with the requirements set forth in section 306. The amount of any such grant shall not exceed 80 per centum of such state's costs for such purposes in any one year. No coastal state is eligible to receive more than four grants pursuant to this subsection. After the initial grant is made to any coastal state pursuant to this subsection, no subsequent grant shall be made to such state pursuant to this subsection unless the Secretary finds that such state is satisfactorily developing its management program.
CCMM EN TAR Y
(c) Again, the grant powers of the Secretary of Commerce are more clearly defined in this subsection. What is interesting to note is an amendment change which increased the Federal grant level from 66.6 percent to its current level of 80 percent. Also changed were eligibility limitations on grants under this subsection from three
14 -


grants to four grants.
(d)(1) The Secretary may make a grant annually to any coastal state for the purposes described in subsection (a)(2) if the
Secretary finds that such state meets the eligibility requirements set forth in paragraph (2). The amount of any such grant shall not exceed 80 percent of the costs for such purposes in any one year. COMMENTARY
(d)(1) This subsection is an amendment addition which
establishes criteria in which coastal states may become eligible for additional Federal grants. I would define this subsection, and the grants outlined, as being "transitional or interim status grants," or grants which can be issued prior to coastal zone management program approval or denial, even though the management program has been submitted to the Secretary of Commerce (Office of Coastal Zone Management) for evaluation. The one glaring weakness in this subsection concerns the phrase, "The Secretary (of Commerce) may make a grant annually..." There is a real need to state a definite time period in which the submitted state coastal zone management programs will be evaluated on the Federal level. The way that this subsection presently reads these "annual grants" could be issued in perpetuity!
(2) A coastal state is eligible to receive grants under this subsection if it has -
(A) developed a management program which -
(1) is in compliance with the rules and regulations promulgated to carry out subsection (b), but;
(ii) has not yet been approved by the Secretary under Section
306;
(B) specifically identified, after consultation with the Secretary, any deficiency in such program which makes its ineligible for approval by the Secretary pursuant to section 306, and has established a reasonable time schedule during which it can remedy any such deficiency;
(C) specified the purposes for which any such grant will be
used;
(D) taken or is taking adequate steps to meet any requirement under section 306 or 307 which involves any Federal official or agency; and
(E) complied with any other requirement which the Secretary, by rules and regulations, prescribes as being necessary and appropriate to carry out the purposes of this subsection.
COMMENTARY
(2) (A)-(E) This subsection, which I have previously called "transitional or interim status grants," specifically establishes the criteria necessary to continue receiving Section 305 grants. The specific areas addressed include a method to receive continued qrants if the four program development grants have been exhausted, and, the state coastal zone management program has been submitted for Federal review; a method to receive continued grants even though deficiencies in a submitted state coastal zone management program have been noted
15 -


by the Secretary of Commerce (Office of Coastal Zone Management); a method to receive continued grants for special purposes if they are well defined; a method to receive continued grants if measures are being taken to meet any requirement under Sections 306 or 307; a method to receive continued grants as the Secretary of Commerce may deem appropriate, with the regulatory purview so established by this 1 aw.
(3) No management program for which grants are made under this subsection shall be considered an approved program for purposes of section 307.
COMMENTARY
(3) Although seemingly obvious, there appears to be a need to ensure a distinction between Section 305 grants and Section 307 procedures.
(e) Grants under this section shall be made to, and allocated among, the coastal states pursuant to rules and regulations promulgated by the Secretary; except that -
(1) no grant shall be made under this section in an amount which is more than 10 per centum of the total amount appropriated to carry out the purposes of this section, but the Secretary may waive this limitation in the case of any coastal state which is eligible for grants under subsection (d); and
(2) no grant shall be made under this section in an amount which is less than 1 per centum of the total amount appropriated to carry out the purposes of this section, but the Secretary shall waive this limitation in the case of any coastal state which requests such a waiver.
COMMENTARY
(e) This subsection stipulates that grants under this section can be made between 1 percent and 10 percent of the total amount appropriated to carry out the purposes of Section 305. But, the Secretary of Commerce can waive these limitations and make grants for more or less than the stipulated limits.
(f) The amount of any grant (or portion thereof) made under this section which is not obligated by the coastal state concerned during the fiscal year for which it was first authorized to be obligated by such state, or during the fiscal year immediately following, shall revert to the Secretary who shall add such amount to the funds available for grants under this section.
COMMENTARY
(f) The important point of this subsection is that coastal states allocated Federal grants for the purposes of this section will have to return any unused portion of said grants.
(g) With the approval of the Secretary, any coastal state may allocate to any local government, to any areawide agency designated under section 204 of the Demonstration Cities and Metropolitan Development Act of 1966, to any regional agency, or to any interstate
16 -


agency, a portion of any grant received by it under this section for the purpose of carrying out the provisions of this section.
COMMENTARY
(g) This subsection promotes the use of Section 305 grant money for coastal zone management development at the local, areawide, regional or interstate agency levels of government. Due to the ambiguity of the term "areawide," I would delete it.
(h) Any coastal state which has completed the development of its management program shall submit such program to the Secretary for review and approval pursuant to section 306. Whenever the Secretary approves the management program of any coastal state under section 306, such state thereafter -
(1) shall not be eligible for grants under this section; except
that such state may receive grants under subsection (c) in order to comply with the requirements of paragraphs (7), (8), and (9) of
subsection (b); and
(2) shall be eligible for grants under section 306.
COMMENTARY
(h) Given the stipulations outlined, the important subsection is (1), which gives an exception for the continued issuance of grants, provided that they are used to comply with the requirements of Section 305 (b),(7)-(9). This stipulation was necessary because the above three requirements were added to the original Act in the form of an amendment.
(i) The authority to make grants under this section shall expire on September 3, 1979.
COMMENTARY
(i) This subsection, while seemingly clear, doesn't specify whether or not grants made under this section will expire on September 3, 1979, as they pertain to Section 305 (b), (7)-(9).
Either the words "all grants" should be specified or the sentence should be modified as needed.
ADMINISTRATIVE GRANTS
SEC. 306. (a) The Secretary may make grants to any coastal
state for not more than 80 per centum of the costs of administering such state's management program if the Secretary -COMMENTARY
SEC. 306. (a) As is true with Section 305, the key feature of this section is the discretionary power given to the Secretary of Commerce to deny or give grants to coastal states.
(1) finds that such program meets the requirements of section 306(b);
(2) approves such program in accordance with subsections (c),
(d) and (e); and
(3) finds, if such program has been administered with financial assistance under this section for at least one year, that the coastal
17


state will expend an increasing proportion of each grant received under this section (but not more than 30 per centum of the grant unless the state chooses to expend a higher percentage) on activities that will result in significant improvement being made in achieving the coastal management objectives specified in section 303 (2)(A) through (I). For purposes of this subsection, the costs of
administering a management program includes costs incurred in carrying out, in a manner consistent with the procedures and
processes specified therein, of projects and other activities (other than those of a kind referred to in clauses (A), (B), or (C) of section 306A(c)(2) that are necessary or appropriate to the implementation of the management program.)
COMMENTARY
(l)-(3) All three of these subsections are criteria utilized to determine if a coastal state is eligible for administrative grants to run their respective, approved coastal zone management program. Due to the arrtiguity of the phrase, "(but not more than 30 per centum of the grant unless the state chooses to expend a higher percentage)," it should either be removed in its entirety or a general
recommendation of a minimum and maximum percent amount should be incorporated.
(b) Such grants shall be allocated to the states with approved programs based on rules and regulations promulgated by the Secretary which shall take into account the extent and nature of the shoreline and area covered by the plan, population of the area, and other relevant factors: Provided, That no annual grant made under this section shall be less than 1 per centum of the total amount appropriated to carry out the purposes of this section: And provided further, That the Secretary shall waive the application of the 1 per centum minimum requirement as to any grant under this section, when the coastal State involved requests such a waiver.
COMMENTARY
(b) This subsection is extremely important because it establishes some factors (miles of coastal shoreline, total coastal area covered by the state coastal zone management plan, population residing in the coastal area and other relevant factors) which the Secretary of Commerce must use to determine how much grant money each coastal state will be eligible for under Section 306.
While the "Provided" and "And provided further" stipulations appear unnecessary (How many coastal states, utilizing the prescribed factors above, would be granted less than 1 percent of the total amount appropriated by the Federal government to carry out the purposes of Section 306?), perhaps there is a need for such minimum grant amount stipulation and a minimum grant amount waiver stipulation.
(c) Prior to granting approval of a management program submitted by a coastal state, the Secretary shall find that:
COMMENTARY
(c) This subsection ensures that specific planning oriented
18 -


processes are undertaken by the coastal states during the Section 305 process, and before granting approval of a state coastal zone management program and eligibility for Section 306 grants.
(1) The state has developed and adopted a management program for its coastal zone in accordance with rules and regulations promulgated by the Secretary, after notice, and with the opportunity of full participation by relevant Federal agencies, state agencies, local governments, regional organizations, port authorities and other interested parties, public and private, which is adequate to carry out the purposes of this title and is consistent with the policy declared in section 303 of this title.
COMMENTARY
(1) While this subsection effectively addresses the need for multiple-source input into the state coastal zone management program development process, the term "full participation" needs to be well defined or "full" should be deleted.
(2) The state has:
(A) coordinated its program with local, areawide, and interstate plans applicable to areas within the coastal zone existing on January 1 of the year in which the state's management program is submitted to the Secretary, which plans have been developed by a local government, an areawide agency designated pursuant to regulations established under section 204 of the Demonstration Cities and Metropolitan Development Act of 1966, a regional agency, or an interstate agency; and
COMMENTARY
(2)(A) In order to affect planning coordination in the development of state coastal zone management programs, by the respective state and interstate, regional, areawide or local planning entities, this subsection stipulates a definite date in which comparable coastal plans should reflect common directions. The reason for such a subsection is to ensure coastal plan compatibility.
(B) established an effective mechanism for continuing
consultation and coordination between the management agency designated pursuant to paragraph (5) of this subsection and with local government, interstate agencies, regional agencies, and areawide agencies within the coastal zone to assure the full participation of such local governments and agencies in carrying out the purposes of this title: except that the Secretary shall not find any mechanism to be 'effective' for purposes of this subparaqraph unless it includes each of the following requirements:
(i) Such management agency is required, before implementing any management program decision which would conflict with any local zoning ordinance, decision, or other action, to send a notice of such management program decision to any local government whose zoning authority is affected thereby.
(ii) Any such notice shall provide that such local government may, within the 30-day period commencing on the date of receipt of
19 -


such notice, submit to the management agency written comments on such management program decision, and any recommendation for alternatives thereto, if no action is taken during such period which would conflict or interfere with such management program decision, unless such local government waives its right to comment.
(iii) Such management agency, if any such comments are
submitted to it, with such 30-day period, by any local government -
(I) is required to consider any such comments.
(II) is authorized, in its discretion, to hold a public hearing on such comments, and
(III) may not take any action within such 30 day period to implement the management program decision, whether or not modified on the basis of such comments.
CCMM ENTARY
(B) This subsection, and all of its subordinate subsections, clearly affirm the need for an effective intergovernmental planning mechanism. Furthermore, the subordinate subsections outline
procedural specifics regarding planning in which the state must follow.
(3) The state has held public hearings in the development of the management program.
CCMM EN TAR Y
(3) This subsection, concisely written, requires one of the
most necessary ingredients in promoting effective planning and subsequent implementation of such efforts, that of citizen
participation in public hearings.
(4) The management program and any changes thereto have been reviewed and approved by the Governor.
(5) The Governor of the state has designated a single agency to receive and administer the grants for implementing the management program required under paragraph (1) of this subsection.
(6) The state is organized to implement the management program required under paragraph (1) of this subsection.
(7) The state has the authorities necessary to implement the program, including the authority required under subsection (d) of this section.
COMMENTARY
(4)-(7) All needed, these subsections could be referred to as state coastal zone management program "legitimacy" clauses.
(8) The management program provides for adequate consideration of the national interest involved in planning for, and in the siting of, facilities (including energy facilities in, or which significantly affect, such state's coastal zone) which are necessary to meet requirements which are other than local in nature. In the case of such energy facilities, the Secretary shall find that the state has given such consideration to any applicable interstate energy plan or program.
- 20 -


COMMENTARY
(8) The impetus in this subsection is the need for coastal
states to consider or incorporate potential, national interest energy facilities into the planning phase of their state coastal zone management program. The weakness of the subsection is the
subjectiveness of the term, "adequate consideration."
(9) The management program makes provision for procedures whereby specific areas may be designated for the purpose of preserving or restoring them for their conservation, recreational, ecological, or esthetic values.
CCMM ENTARY
(9) This subsection seems to be similar to Subsection 303(2)(E) in content. Although the latter is termed a policy declaration, both subsections stipulate that resolution of the issues must be accomplished in the state coastal zone management program. It
appears that both are attempting to reach the same goal and that the only real difference is that this subsection seeks to establish procedures for getting specific areas designated for restoration or preservation.
(d) Prior to granting approval of the management program, the Secretary shall find that the state, acting through its chosen agency or agencies, including local governments, areawide agencies designated under section 204 of the Demonstration Cities and Metropolitan Development Act of 1966, regional agencies, or interstate agencies, has authority for the management of the coastal zone in accordance with the management program. Such authority shall include power -
(1) to administer land and water use regulations, control development in order to ensure compliance with the management program, and to resolve conflicts among competing uses; and
(2) to acquire fee simple and less than fee simple interests in lands, waters, and other property through condemnation or other means when necessary to achieve conformance with the management program. COMMENTARY
(d) An expansion of (7) of this section, this subsection and its subordinate subsections outline the state authority needed to administer the respective coastal zone management program. Both subordinate subsections make direct or indirect references to land use planning tools which are instrumental in accomplishing the goals of a state coastal zone management program. The broad concept is known as police power and specific planning tools include ordinances, zoning, condemnation and eminent domain.
(e) Prior to granting approval, the Secretary shall also find that the program provides:
COMMENTARY
(e) This subsection is crucial because it outlines three different techniques which a state can choose from for affecting control of land and water uses in the state coastal zone. These
- 21 -


three techniques encourage coastal states to review existing land use policies and conditions which affect their coastal zones. Such examination promotes identification of inconsistencies between the management programs at various governmental levels.
(1) for any one or a combination of the following general techniques for control of land and water uses within the coastal zone: COMMENTARY
(1) This subsection is important because it affords a coastal state the opportunity to choose one of the three outlined techniques or a combination thereof. While there are minimum requirement stipulations there is also extreme flexibility regarding state choice.
(A) State establishment of criteria and standards for local implementation, subject to administrative review and enforcement of compli ance;
COMMENTARY
(A) Here the state establishes the statewide program with state regulations. Although a state initiated program, implementation is given to the local level. The only stipulation is that the state will still be required to perform program administrative review and compliance enforcement.
(B) Direct state land and water use planning and regulation; or COMMENTARY
(B) Here the state establishes the statewide program with state regulations. In this scenario the state also administers the program.
(C) State administrative review for consistency with the management program of all development plans, projects, or land and water use regulations, including exceptions and variances thereto, proposed by any state or local authority or private developer, with power to approve or disapprove after public notice and an opportunity for hearings.
COMMENTARY
(C) Here the state establishes the statewide program but allows local governments to initiate their own coastal zone regulations. The only criteria that the state imposes upon the local level is that their plans must be consistent with the Federally approved state coastal zone management plan. The state accomplishes this by conducting program administrative reviews.
(2) for a method of assuring that local land and water use regulations within the coastal zone do not unreasonably restrict or exclude land and water uses of regional benefit.
COMMENTARY
(2) This subsection has obvious political and economic overtones in regards to tourism, industrial development, commerical development, residential development etc. in a regional sense. I feel the need to change the phrase, "regional benefit" to "state or regional benefit."
- 22 -


(f) With the approval of the Secretary, a state may allocate to a local government, an areawide agency designated under secton 204 of the Demonstration Cities and Metropolitan Development Act of 1966, a regional agency, or an interstate agency, a portion of the grant under this section for the purpose of carrying out the provisions of this section. Provided. That such allocation shall not relieve the state of the responsibility for ensuring that any funds so allocated are applied in furtherance of such state's approved management program.
CCMM ENTARY
(f) Succinctly stated, this subsection requires that the state monitor any Section 306 grant money allocated to local, areawide, regional or interstate agencies for the purposes of carrying out the state's approved coastal zone management plan.
(g) Any coastal state may amend or modify the management
program which it has submitted and which has been approved by the Secretary under this section, pursuant to the required procedures described in subsection (c). Except with respect to any such
amendment which is made before October 1, 1978, for the purpose of complying with the requirements of paragraphs (7), (8), and (9) of section 305(b), no grant shall be made under this section to any coastal state after the date of such an amendment or modification, until the Secretary approves such amendment or modification.
COMMENTARY
(g) This subsection serves to outline the procedures a coastal state must utilize to amend or modify an approved state coastal zone management program.
(h) At the discretion of the state and with the approval of the Secretary, a management program may be developed and adopted in segments so that immediate attention may be devoted to those areas within the coastal zone which most urgently need management programs. Provided. That the state adequately provides for the ultimate coordination of the various segments of the management program into a single unified program and that the unified program will be completed as soon as is reasonably practicable.
COMMENTARY
(h) This subsection allows a coastal state to develop its coastal zone management program in segments. The two stipulations are that immediate attention must be devoted to areas within the coastal zone that urgently need management programs and segments of a program must be unified into one coastal zone management program. The term "reasonably practicable" needs definition or it needs to be changed to a specific deadline date.
(i) The coastal states are encouraged to provide in their management programs for -
(A) the inventory and designation of areas that contain one or more coastal resources of national significance; and
(B) specific and enforceable standards to protect such resources.
- 23 -


If the Secretary determines that a coastal state has failed to make satisfactory progress in the activities described in this subsection by September 30, 1984, the Secretary shall not make any grants to such state provided under section 306A after such date. COMMENTARY
(i) Although this subsection and its subordinate subsections seem adequate in their intent, there is considerable confusion in this subsection. Because "satisfactory progress" in this activity is necessary before any grants will be made under Section 306A (see subordinate subsection (B)), the word "encouraged" needs to be changed to "required" (see subsection (i)).
RESOURCE MANAGEMENT IMPROVEMENT GRANTS
SEC. 306A. (a) For purposes of this section -
(1) The term 'eligible coastal state* means a coastal state that for any fiscal year for which a grant is applied for under this section -
(A) has a management program approved under section 306; and
(B) in the judgment of the Secretary, is making satisfactory progress in activities designed to result in significant improvement in achieving the coastal management objectives specified in section 303(2)(A) through (I).
COMMENTARY
(a) (1) This entire subsection outlines eligibility for grants
under this section. They keys to successful grant acquisition are having an approved coastal zone management plan and making
satisfactory progress towards the objectives outlined in Section 303(2) (A)-(I).
(2) The term 'urban waterfront and port' means any developed area that is densely populated and is being used for, or has been used for, urban residential, recreational, commercial, shipping or industrial purposes.
COMMENTARY
(2) The definition of "urban waterfront and port" seems contradictory in that it specifies a "developed area that is densely populated" but limits the land uses to "urban, residential, recreation, commercial, shipping or industrial." Because land-use and zoning are generally defined in terms of use, bulk and intensity, it would be well advised to rewrite this subsection to reflect its actual intention.
(b) The Secretary may make grants to any eligible coastal state to assist that state in meeting one or more of the following objectives:
(1) The preservation or restoration of specific areas of the state that (A) are designated under the management program procedures required by section 306 (c)(9) because of their conservation,
recreational, ecological, or esthetic values, or (B) contain one or more coastal resources of national significance.
- 24 -


(2) The redevelopment of deteriorating and underutilized urban waterfronts and ports that are designated under section 305(b)(3) in the state's management program as areas of particular concern.
(3) The provision of access of public beaches and other public coastal areas and to coastal waters in accordance with the planning process required under section 305(b)(7).
COMMENTARY
(b) (l)-(3) This subsection and its subordinate subsections outline how eligible coastal states may receive grants for specific objectives. These objectives include areas worthy of preservation or restoration, coastal areas with resources of national significance, redevelopment of deteriorating and underutilized urban waterfronts and ports, and areas requiring access of public beaches and other public coastal areas.
(c) (1) Each grant made by the Secretary under this section shall be subject to such terms and conditions as may be appropriate to ensure that the grant is used for purposes consistent with this section.
(2) Grants made under this section may be used for -
(A) the acquisition of fee simple and other interests in land;
(B) low-cost construction projects determined by the Secretary
to be consistent with the purposes of this section, including but not limited to, paths, walkways, fences, parks, and the rehabilitation of historic buildings and structures; except that not more than 50 per centum of any grant made under this section may be used for such
construction projects;
(C) in the case of grants made for objectives described in subsection (b)(2) -
(i) The rehabilitation or acquisition of piers to provide
increased public use, including compatible commerical activity,
(ii) the establishment of shoreline stabilization measures
including the installation or rehabilitation of bulkheads for the
purpose of public safety or increasing public access and use, and
(iii) the removal or replacement of pilings where such action will provide increased recreational use of urban waterfront areas, but activities provided for under this paragraph shall not be treated as construction projects subject to the limitations in paragraph (B);
(D) engineering designs, specifications, and other appropriate
reports; and
(E) educational, interpretive, and management costs and such other related costs as the Secretary determines to be consistent with the purposes of this section.
COMMENTARY
(c) Although the entirety of this subsection appears to be a continuance of subsection (b), the focus is specifically oriented towards physical resource improvements in the coastal zone of states with approved management programs. Subsection (c)(2)(A) stands out because it provides grant money for acquisition of coastal lands through police powers such as condemnation and eminent domain.
- 25 -


(d)(1) No grant made under this section may exceed an amount equal to 80 per centum of the cost of carrying out the purpose or project for which it was awarded.
(2) Grants provided under this section may be used to pay a coastal state's share of costs required under any other Federal program that is consistent with the purposes of this section.
(3) The total amount of grants made under this section to any eligible coastal state for any fiscal year may not exceed an amount equal to 10 per centum of the total amount appropriated to carry out this section for such fiscal year.
COMMENTARY
(d) This subsection establishes guidance and limitations to the amount of grant money which can be used to carry out the purposes of this section.
(e) With the approval of the Secretary, an eligible coastal state may allocate to a local government, an areawide agency designated under section 204 of the Demonstration Cities and Metropolitan Development Act of 1966, a regional agency, or an interstate agency, a portion of any grant made under this section for the purpose of carrying out this section; except that such an allocation shall not relieve that state of responsibility for ensuring that any funds so allocated are applied in furtherance of the state's approved management program.
CCMM ENTARY
(e) For the purpose of this section, this subsection requires that the state monitor any Section 306(A) grant money allocated to any local, areawide, regional or interstate agencies.
(f) In addition to providing grants under this section, the Secretary shall assist eligible coastal states and their local governments in identifying and obtaining other sources of available Federal technical and financial assistance regarding the objectives of this section.
COMMENTARY
(f) This assistance measure is an invaluable aid in the further improvement of physical resources in the coastal zone. Through the acquisition of other sources of Federal funding, the goals of this section are further enhanced.
COORDINATION AND COOPERATION
SEC. 307. (a) In carrying out his functions and
responsibilities under this title, the Secretary shall consult with, cooperate with, and, to the maximum extent practicable, coordinate his activities with other interested Federal agencies.
COMMENTARY
(a) This subsection describes the implied rapport which is suppose to exist between Federal agencies with similar goals and direction. Although consultation, cooperation and coordination are all necessary tools to effective planning, interagency "turf battles"
- 26 -


can inhibit such efforts.
(b) The Secretary shall not approve the management program submitted by a state pursuant to section 306 unless the views of Federal agencies principally affected by such program have been adequately considered.
COMMENTARY
(b) Although seemingly understandable, this subsection has critical shortcomings. The first weakness is the lack of a defined mechanism to ensure that "the views of Federal agencies" are considered. The second problem is the need for definition of the phrases, "principally affected" and "adequately considered."
(c) (1) 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.
(c)(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 approved state management programs.
CCMM ENTARY
(c)(l)-(2) Both of these subsections offer coastal states the opportunity to exert some degree of influence over Federal agencies conducting activities in their coastal zones. While such provisions appear to be attractive to coastal states, the potential control over Federal activities is significantly diminished by the phrase, "to the maximum extent practicable." These subsections should prove to be disasterous from the standpoint of Federal-state relationships, should conflicts surface regarding Federal activities in state coastal zones.
(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 affecting land or water uses in 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 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. 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 receipt of its copy of the applicant's certification, the state's concurrence with the certification shall be conclusively presumed. No license or permit
- 27 -


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. COMMENTARY
(3)(A) While this subsection adequately describes the Federal-state relationship regarding Federal licensing or permitting to conduct activities in the coastal zone, there is ambiguity which needs corrective attention. Specifically, a "certification" by
definition means a "guaranteed statement" in the context of this subsection. According to the text, an applicant for a Federal
license or permit must provide in the application to the Federal licensing or permitting agency a certification that the proposed activity complies with the state's approved program. One must assume that "certification" and "compliance with the state's approved program" requires state coastal zone management program review, and subsequent certification that the completed application does indeed comply with the state's approved program. Lack of such certification would denote noncompliance. Yet the text doesn't explain who
conducts such certification. If the state does provide certification, state concurrence or objection could be conducted concurrently, thus streamlining the application process.
(3)(B) After the management program of any coastal state has been approved by the Secretary under section 306, any person who submits to the Secretary of the Interior any plan for the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) and regulations under such Act shall, with respect to any exploration, development, or production described in such plan and affecting any land use or water use in the coastal zone of such state, attach to such plan a certification that each activity which is described in detail in such plan complies with such state's approved management program and will be carried out in a manner consistent with such program. No Federal official or agency shall grant such person any license or permit for any activity described in detail in such plan until such state or its designated agency receives a copy of such certification and plan, together with any other necessary data and information, and until -COMMENTARY
(3)(B) Again clarification needs to be made regarding who performs certification on any plan which intends to conduct offshore exploration, development or production from any area leased under the Outer Continental Shelf Lands Act and inside the defined coastal boundaries of any approved state coastal zone management program.
(i) such state or its designated agency, in accordance with the
- 28 -


procedures required to be established by such state pursuant to subparagraph (A), concurs with such person's certification and notifies the Secretary and the Secretary of the Interior of such concurrence;
(ii) concurrence by such state with such certification is conclusively presumed as provided for in subparagraph (A), except if such state fails to concur with or object to such certification within three months after receipt of its copy of such certification and supporting information, such state shall provide the Secretary, the appropriate federal agency, and such person with a written statement describing the status of review and the basis for further delay in issuing a final decision, and if such statement is not so provided, concurrence by such state with such certification shall be conclusively presumed; or
(iii) the Secretary finds, pursuant to subparagraph (A), that each activity which is described in detail in such plan is consistent with the objectives of this title or is otherwise necessary in the interest of national security.
If a state concurs or is conclusively presumed to concur, or if the Secretary makes such a finding, the provisions of subparagraph
(A) are not applicable with respect to such persons, such state, and any Federal license or permit which is required to conduct any activity affecting land uses or water uses in the coastal zone of such state which is described in detail in the plan to which such concurrence or finding applies. If such state objects to such certification and if the Secretary fails to make a finding under clause (iii) with respect to such certification, or if such person fails substantially to comply with such plan as submitted, such person shall submit an amendment to such plan, or a new plan, to the Secretary of the Interior. With respect to any amendment or new plan submitted to the Secretary of the Interior pursuant to the preceding sentence, the applicable time period for purposes of concurrence by conclusive presumption under subparagraph (A) is 3 months.
COMMENTARY
(i)-(iii) These subordinate subsections adequately outline the procedures for reviewing submitted certifications and plans for offshore activities. What is interesting to note is the fact that amendments to plans are routed through the Secretary of the Interior and not through the Secretary of Commerce or the Office of Coastal Zone Management.
(d) 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 and coordinated 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 that such project is consistent with the
- 29


purposes of this title or necessary in the interest of national security.
COMMENTARY
(d) This subsection adequately defines the Federal-state relationship regarding the consistency which must exist between a state's approved coastal zone management plan and any proposed project.
(e) Nothing in this title shall be construed -
(1) to diminish either Federal or state jurisdiction, responsibility, or rights in the field of planning, development, or control of water resources, submerged lands, or navigable waters; nor to displace, supersede, limit, or modify any interstate compact or the jurisdiction or responsibility of any legally established joint or common agency of two or more states or of two or more states and the Federal Government; nor to limit the authority of Congress to authorize and fund projects;
(2) as superseding, modifying, or repealing existing laws applicable to the various Federal agencies; nor to affect the jurisdiction powers, or prerogatives of the International Joint Commission, United States and Canada, the Permanent Engineering Board, and the United States operating entity or entities established pursuant to the Columbia River Basin Treaty, signed at Washington January 17, 1961, or the International Boundary and Water Commission, United States and Mexico.
COMMENTARY
(e) (l)-(2) This subsection and its two subordinate subsections clearly establish the intent of the Coastal Zone Management Act of 1972 as it pertains to the inalienable rights of both the Federal government and the state government. Further explanation substantiates the legitimacy of interstate compacts, any legally established joint or common agency of two or more states, two or more states and the Federal government, existing Federal agency laws, internation compacts, the Permanent Engineering Board or the operating entity established pursuant to the Columbia River Basin Treaty. What these subordinate subsections successfully accomplish is clarification of "turf" retention by concerned entities.
(f) 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 the Federal Government or by any state or local government pursuant to such Acts. Such requirements shall be incorporated in any program developed pursuant to this title and shall be the water pollution control and air pollution control requirements applicable to such program.
COMMENTARY
(f) Incorporation of the Federal Water Pollution Control Act and the Clean Air Act provisions into any program pursuant to the Coastal Zone Management Act of 1972 is the primary intent of this subsection.
- 30 -


(g) When any state's coastal zone management program, submitted for approval or proposed for modification pursuant to section 306 of this title, includes requirements as to shorelands which also would be subject to any Federally supported national land use program which may be hereafter enacted, the Secretary, prior to approving such program, shall obtain the concurrence of the Secretary of the Interior, or such other Federal official as may be designated to administer the national land use program with respect to that portion of the coastal zone management program affecting such inland areas. COMMENTARY
(g) This subsection makes reference to a proposed national land
use program which, to this date, has yet to be enacted by the Federal government. Until such time as this proposed legislation becomes
law, this subsection should be deleted in its entirety.
Incorporation of this subsection, and the protection of the Nation's shorelands, could be accomplished when deemed appropriate and interagency cooperation could then be affected.
(h) In case of serious disagreement between any Federal agency and a coastal state -
(1) in the development or the initial implementation of a management program under section 305; or
(2) in the administration of a management program approved under section 306; the Secretary, with the cooperation of the Executive Office of the President, shall seek to mediate the differences involved in such disagreement. The process of such mediation shall, with respect to any disagreement described in paragraph (2), include public hearings which shall be conducted in the local area concerned.
COMMENTARY
(h) The information provided outlines a procedure to arbitrate disagreements concerning Sections 305 and 306 between any Federal agency and a coastal state. The weakness of this subsection is the lack of a definition for the phrase "serious disagreement."
COASTAL ENERGY IMPACT PROGRAM
SEC. 308. (a)(1) The Secretary shall administer and coordinate, as part of the coastal zone management activities of the Federal Government provided for under this title, a coastal energy impact program. Such program shall consist of the provision of financial assistance to meet the needs of coastal states and local governments in such states resulting from specified activities involving energy development. Such assistance, which includes -CCMM ENTARY
(a)(1) This introductory subsection establishes the coastal energy impact program and the Federal financial assistance which is available to coastal states impacted by energy development in the coastal zone.
(A) grants, under subsection (b), to coastal states for the
- 31


purposes set forth in subsection (b)(5) with respect to consequences resulting from the energy activities specified therein;
(B) grants, under subsection (c)(1), to coastal states for study of, and planning for, consequences relating to new or expanded energy facilities in, or which significantly affect, the coastal zone;
(C) grants, under subsection (c)(2), to coastal states to carry out their responsibilities under the Outer Continental Shelf Lands Act;
(D) loans, under subsection (d)(1), to coastal states and units of general purpose local government to assist such states and units to provide new or improved public facilities or public services which are required as a result of coastal energy activity;
(E) guarantees, under subsection (d)(2) and subject to the provisions of subsection (f), of bonds or other evidences of indebtedness issued by coastal states and units of general purpose local government for the purpose of providing new or improved public facilities or public services which are required as a result of coastal energy activity;
(F) grants or other assistance, under subsection (d)(3), to coastal states and units of general purpose local government to enable such states and units to meet obligations under loans or guarantees under subsection (d) (1) or (2) which they are unable to meet as they mature, for reasons specified in subsection (d)(3); and
(G) grants, under subsection (d)(4), to coastal states which have suffered, are suffering, or will suffer any unavoidable loss of a valuable environmental or recreational resource; shall be provided, administered, and coordinated by the Secretary in accordance with the provisions of this section and under the rules and reguations required to be promulgated pursuant to paragraph (2). Any such financial assistance shall be subject to audit under section 313. COMMENTARY
(A)-(G) These subsections provide specific information on what types of financial assistance are available to coastal states for their coastal energy impact program. Specifically, coastal states may receive Federal grants, loans, guarantees or other assistance for coastal energy-related impacts.
(2) The Secretary shall promulgate, in accordance with section 317, such rules and regulations including, but not limited to, those required under subsection (e) as may be necessary and appropriate to carry out the provisions of this section.
CCMM ENTARY
(2) The intent of this subsection is to give the Secretary of Commerce the authority to establish rules and regulations necessary to carry out the provisions of Section 308.
(b)(1) The Secretary shall make grants annually to coastal states, in accordance with the provisions of this subsection. COMMENTARY
(b)(1) This subsection clearly outlines the criteria necessary for the issuance of annual grants for the coastal energy impact program.
- 32 -


(2) Subject to paragraph (3), the amounts payable to coastal states under this subsection shall be, with respect to any such state for any fiscal year, the sum of the amounts calculated, with respect to such state, pursuant to subparagraphs (A), (B), and (C):
(A) An amount which bears, to one-half of the amount appropriated for the purpose of funding grants under this subsection for such fiscal year, the same ratio that the amount of outer Continental Shelf acreage which is adjacent to such state and which is newly leased by the Federal Government in the immediately preceding fiscal year bears to the total amount of outer Continental Shelf acreage which is newly leased by the Federal Government in such preceding year.
(B) An amount which bears, to one-quarter of the amount appropriated for such purpose for such fiscal year, the same ratio that the volume of oil and natural gas produced in the immediately preceding fiscal year from the outer Continental Shelf acreage which is adjacent to such state and which is leased by the Federal Government bears to the total volume of oil and natural gas produced in such year from all of the outer Continental Shelf acreage which is leased by the Federal Government.
(C) An amount which bears, to one-quarter of the amount appropriated for such purpose for such fiscal year, the same ratio that the volume of oil and natural gas produced from outer Continental Shelf acreage leased by the Federal Government which is first landed in such state in the immediately preceding fiscal year bears to the total volume of oil and natural gas produced from all outer Continental Shelf acreage leased by the Federal Government which is first landed in all of the coastal states in such year.
COMM ENTARY
(2) The impetus of this subsection and its respective subordinate subsections is the need for and use of a definitive formula for calculating monetary amounts that a coastal state can be eligible for under this section. Throughout the entire context of subsections (A),(B), and (C) there exist numerous stipulations which in themselves create confusion. Although these subordinate subsections are needed to determine potential grant allocations for coastal states, clarification needs to be facilitated to affect easier interpretation.
(3) (A)(i) After making the calculations required under paragraph (2) for any fiscal year, the Secretary shall -
(I) with respect to any coastal state which, based on such calculations, would receive an amount which is less than 2 per centum of the amount appropriated for such fiscal year, increase the amount appropriated for such fiscal year, increase the amount payable to such coastal state to 2 per centum of such appropriated amount; and
(II) with respect to any coastal state which, in such fiscal year, would not receive a grant under paragraph (2), make a grant to such coastal state in an amount equal to 2 per centum of the total amount appropriated for making grants to all states under paragraph
(2) in such fiscal year if any other coastal state in the same region
- 33 -


will receive a grant under such paragraph in such fiscal year, except that a coastal state shall not receive a grant under this subclause unless the Secretary determines that it is being or will be impacted by outer Continental Shelf energy activity and that it will be able to expend or commit the proceeds of such grant in accordance with the purposes set forth in paragraph (5).
COMMENTARY
(3)(A)(i) This subsection and related subordinate subsections permit the Secretary of Commerce to allocate a maximum of 2 percent of the total amount appropriated per fiscal year for this section. The first stipulation was instrumented in order to ensure that those coastal states which have final calulations under 2 percent would receive a fair share of available grant money. The second stipulation was adopted to ensure that no significant state disparity would exist in defined coastal regions regarding available grant money.
(ii) For purposes of this subparagraph -
(I) the states of Connecticut, Delaware, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, and Virginia, the Commonwealth of Puerto Rico, and the Virgin Islands(the Atlantic coastal states) shall constitute one 'region'.
(II) the states of Alabama, Florida, Louisiana, Mississippi, and Texas (the Gulf coastal states) shall constitute one 'region'.
(III) the states of California, Hawaii, Oregon, and Washington (the Pacific coastal states) shall constitute one 'region' and
(IV) the state of Alaska shall constitute one 'region'. COMMENTARY
(ii) Easily comprehended, this subsection and its subordinate subsections define coastal zone regions. The weakness of this subsection is the intentional or unintentional omission of Guam, the Commonwealth of the Northern Mariana Islands, the Trust Territories of the Pacific Islands and American Samoa from the Pacific coastal states (Section 308 (3)(A)(ii)(111)), especially since all are
mentioned as "coastal state" (Section 304(4)).
(B) If, after the calculations required under subparagraph (A), the total amount of funds appropriated for making grants to coastal states in any fiscal year pursuant to this subsection is less than the total amount of grants payable to all coastal states in such fiscal year, there shall be deducted from the amount payable to each coastal state which will receive more than 2 per centum of the amount of funds so appropriated an amount equal to the product of -
(i) the amount by which the total amount of grants payable to all coastal states in such fiscal year exceeds the total amount of funds appropriated for making such grants; multiplied by
(ii) a fraction, the numerator of which is the amount of grants payable to such coastal state in such fiscal year reduced by an amount equal to 2 per centum of the total amount appropriated for such fiscal year and the denominator of which is the total amount of
- 34 -


grants payable to coastal states which, in such fiscal year, will receive more than 2 per centum of the amount of funds so appropriated, reduced by an amount equal to the product of 2 per centum of the total amount appropriated for such fiscal year multiplied by the number of such coastal states.
COMMENTARY
(B) This subsection and its subordinate subsections leave much to be desired regarding clarity. Throughout the entirety, a bonafide mathematical formula is put into paragraph form. It is recommended that this entire subsection be restructured in the form of a mathematical formula. Stipulations which could be omitted from the context of the formula but included in paragraph form should include the following. "If, after the calculations required under subparagraph (A), the following conditions exist, then the mathematical formula in this subsection will be utilized to affect coastal state grant reductions. Also, for the purposes of this subsection, grants to coastal states shall be considered as for any fiscal year." The mathematical formula could read as follows:
IF: The total amount of funds appropriated for making grants to coastal states (1) is less than the total amount of grants payable to all coastal states (2) [ie IF: (1)is less than (2)]
THEN: Those coastal states which would receive greater than 2
percent of the total amount of funds appropriated for making grants to coastal states (7) shall have deducted from their total amount grant payable (3) an amount (4) = to: [ie THEN: (7)=(3)-(4)= adjusted coastal state grant payable]
The total amount of grants payable to all coastal states (2) -the total amount of funds appropriated for making grants to coastal states (1) = the amount (4).
The total amount of grants payable to such a coastal state (5) an amount = 2% of the total amount appropriated for making grants to coastal states (6)
THE AMOUNT (4)=_______________________________________________________
The total amount of grants payable to all coastal states (2) (if a coastal state will receive greater than 2% of the total amount of funds appropriated for making grants to coastal states (7))-(an amount (8)=(2% of the total amount appropriated for making grants to coastal states (9) x the total number of coastal states eligible for greater than 2% of the total amount of funds appropriated for making grants to coastal states (10)).
[ie The amount (4)= (5) - (6)
L(2) if (7)J L(8) = (9)(10)J
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(C)(i) If, after the calculations required under subparagraph (B) for any fiscal year, any coastal state would receive an amount which is greater than 37 1/2 per centum of the amount appropriated for such fiscal year, the Secretary shall reduce the amount payable to such coastal state to 37 1/2 per centum of such appropriated amount.
(ii) Any amount not payable to a coastal state in a fiscal year due to a reduction under clause (i) shall be 'payable
proportionately1 to all coastal states which are to receive more than 2 per centum and less than 37 1/2 per centum of the amount
appropriated for such fiscal year, except than in no event shall any coastal state receive more than 37 1/2 per centum of such
appropriated amount.
COMMENTARY
(C)(i)-(ii) Again, as with the aforementioned subsection (B), mathematical formulas should be utilized to promote clarity.
(iii) For purposes of this subparagraph, the term 'payable proportionately' means payment in any fiscal year in accordance with the provisions of paragraph (2), except that in making calculations under such paragraph the Secretary shall only include those coastal states which are to receive more than 2 per centum and less than 37 1/2 per centum of the amount appropriated for such fiscal year. COMMENTARY
(iii) For the purposes of this subsection, since the term 'payable proportionately1 makes reference to subsection (C)(ii) above, it should be redesignated (I).
(4)(A) The Secretary shall determine annually the amounts of the grants to be provided under this subsection and shall collect and evaluate such information as may be necessary to make such determinations. Each Federal department, agency, and instrumentality shall provide to the Secretary such assistance in collecting and evaluating relevant information as the Secretary may request. The Secretary shall request the assistance of any appropriate state agency in collecting and evaluating such information.
COMMENTARY
(4)(A) This subsection succinctly explains that the Secretary of Commerce shall collect and evaluate any information needed to determine the annual amounts of the grants to be issued under subsection (b)(1). The key to this subsection is that the collection of relevant information from Federal, state, local and other agency sources requires cooperation.
(B) For purposes of making calculations under paragraph (2), outer Continental Shelf acreage is adjacent to a particular coastal state if such acreage lies on that state's side of the extended lateral seaward boundaries of such state. The extended lateral seaward boundaries of a coastal state shall be determined as follows:
(i) If lateral seaward boundaries have been clearly defined or fixed by an interstate compact, agreement, or judicial decision (if
- 36 -


entered into, agreed to, or issued before the date of the enactment of this paragraph), such boundaries shall be extended on the basis of the principles of delimitation used to so define or fix them in such compact, agreement or decision.
(ii) If no lateral seaward boundaries, or any portion thereof, have been clearly defined or fixed by an interstate compact, agreement, or judicial decision, lateral seaward boundaries shall be determined according to the applicable principles of law, including the principles of the Convention on the Territorial Sea and the Contiguous Zone, and extended on the basis of such principles.
(iii) If, after the date of enactment of this paragraph, two or more coastal states enter into or amend an interstate compact or agreement in order to clearly define or fix lateral seaward boundaries, such boundaries shall thereafter be extended on the basis of the principles of delimitation used to so define or fix them in such compact or agreement.
COMMENTARY
(B) This subsection and its associated subordinate subsections establish the criteria utilized to determine a coastal state's extended lateral seaward boundary. Accomplishment of this facilitates a determination of outer Continental Shelf acreage, an integral part of making calculations under subsection (b)(2).
(C) For purposes of making calculations under this subsection, the transitional quarter beginning July 1 1976, and ending Septerrber 30, 1976, shall be included within the fiscal year ending June 30, 1976.
COMM ENTARY
(C) Because the entirety of Section 308 was the result of an amendment (Public Law 95-372) of September 18, 1978, it is unclear why this subsecton was added. Perhaps an omission of this subsection would be appropriate...at a minimum, a brief explanation of why this transitional quarter is being addressed would suffice.
(5) Each coastal state shall use the proceeds of grants received by it under this subsection for the following purposes (except that priority shall be given to the use of such proceeds for the purpose set forth in subparagraph (A)):
CCMM ENTARY
(5) The information provided in this subsection establishes the priorities of how each coastal state must use the proceeds of grants issued under Section 308(b). The purpose of such defined
prioritization is to ensure that all coastal states address certain issues in a similar manner.
(A) The retirement of state and local bonds, if any, which are guaranteed under subsection (d) (2); except that, if the amount of such grants is insufficient to retire both state and local bonds, priority shall be given to retiring local bonds.
COMMENTARY
(A) The strategy for retiring local bonds first, if both state
- 37


and local bonds cannot be retired simultaneously by a grant, is interesting from a planning standpoint. While it seems
insignificant, a local government will almost always face greater budgetary constraints and problems than their state counterpart. Thus, it is important to minimize financial stress on local governments and their constituencies, especially in those areas experiencing infrastructure growth needs caused by coastal zone energy activities.
(B) The study of, planning for, development of, and the
carrying out of projects and programs in such state which are -
(i) necessary to provide new or improved public facilities and public services which are required as a result of outer Continental Shelf energy activity:
(ii) of a type approved by the Secretary as eligible for grants under this paragraph, except that the Secretary may not disapprove any project or program for highways and secondary roads, docks, navigation aids, fire and police protection, water supply, waste collection and treatment (including drainage), schools and education, and hospitals and health care.
The Secretary may, pursuant to criteria promulgated by rule, describe geographic areas in which public facilities and public services referred to in clause (i) shall be presumed to be required as a result of outer Continental Shelf energy activity for purposes of disbursing the proceeds of grants under this subsection.
CCMM ENTARY
(B) This subsection and its subordinate subsections describe the planning process as it pertains to state and local infrastructure improvements, transportation improvements and other similarly oriented planning efforts.
It is interesting to note that although the Secretary of Commerce cannot disapprove various projects or programs, he or she does have the power to describe geographic areas in which public facilities and services are presumed to be required as a result of outer Continental Shelf energy activity. Thus, if a coastal state does not assume an aggressive posture regarding public facility and service siting, the Secretary of Commerce is empowered to assure such efforts are undertaken by the coastal states.
(C) The prevention, reduction, or amelioration of any
unavoidable loss in such state's coastal zone of any valuable environmental or recreational resource if such loss results from coastal energy activity.
COMMENTARY
(C) While the intent of this subsection seems clear, one must request an explanation of the term "unavoidable loss." Until such time as a definition is provided, one must assume that this subsection promotes coastal energy development activity over the protection of environmental or recreational resources.
(6) The Secretary, in a timely manner, shall determine that each
- 38 -


coastal state has expended or committed, and may determine that such state will expend or commit grants which such state has received under this subsection in accordance with the purposes set forth in paragraph (5). The United States shall be entitled to recover from any coastal state an amount equal to any portion of any such grant received by such state under this subsection which -
(A) is not expended or committed by such state before the close of the fiscal year immediately following the fiscal year in which the grant was disbursed, or
(B) is expended or committed by such state for any purpose other than a purpose set forth in paragraph (5). Before disbursing the proceeds of any grant under this subsection to any coastal state, the Secretary shall require such state to provide adequate assurances of being able to return to the United States any amounts to which the preceding sentence may apply.
COMMENTARY
(6) Federal monitoring of coastal state grant expenditures and commitments is the theme of this subsection and its subordinate subsections.
(c)(1) The Secretary shall make grants to any coastal state if the Secretary finds that the coastal zone of such state is being, or is likely to be significantly affected by the siting, construction, expansion, or operation of new or expanded energy facilities. Such grants shall be used for the study of, and planning for (including, but not limited to, the application of the planning process included in a management program pursuant to section 305(b)(8)) any economic, social, or environmental consequence which has occurred, is occurring, or is likely to occur in such state's coastal zone as a result of the siting, construction, expansion, or operation of such new or expanded energy facilities. The amount of any such grant shall not exceed 80 per centum of the cost of such study and planning. COMMENTARY
(c)(1) This subsection and its subordinate subsections provide the Secretary of Commerce with the basic guidelines for allocating grants to coastal states impacted by energy development activities. The basic weakness of this subsection is that it never addresses the need for mitigating measures or strategies as a decisive follow-up to planning efforts. A sentence in subsection (c)(1) could be rewritten as follows, "Such grants shall be used for the study of, the planning for, and the implementation of mitigating strategies for any economic, social, or environmental consequence which has occurred, is occurring, or is likely to occur in such state's coastal zone as a result of the siting, construction, expansion, or operation of such new or expanding energy facilities."
(2) The Secretary shall make grants under this paragraph to any coastal state which the Secretary finds is likely to be affected by outer Continental Shelf energy activities. Such grants shall be used by such state to carry out its responsibilities under the Outer Continental Shelf Lands Act. The amount of any such grant shall not
- 39


exceed 80 per centum of the cost of carrying out such responsibi1ities.
COMMENTARY
(2) This subsection, in conjunction with coastal states' responsibilities under the Outer Continental Shelf Lands Act, requires the Secretary of Commerce to make grants to said coastal states. As is the case with (c)(1) above, there is no provision for ensuring what "80 percent of the cost of such study and planning" or "80 percent of the cost of carrying out such responsibilities" actually amounts to monetarily. Such ambiguity, while seemingly trivial, is serious because of finite Congressional funding for Section 308 grants.
(3) (A) The Secretary shall make grants to any coastal state to enable such state to prevent, reduce, or ameliorate any unavoidable loss in such state's coastal zone of any valuable environmental or recreational resource, if such loss results from the transportation, transfer, or storage of coal or from alternative ocean energy activities.
COMMENTARY
(3)(A) The third type of grant which the Secretary of Commerce may allocate concerns the loss of coastal zone lands to any type of coal or alternative ocean energy activities. The terms "prevent, reduce, or ameliorate" strongly parallel the aforementioned "mitigating strategies" in (c)(1). The apparent weakness of this subsection is the phrase, "any unavoidable loss." From a planning standpoint such terminology is inappropriate. Since an "unavoidable loss" is the result of a land-use planning decision, it would be well advised to rephrase this particular sentence into something less potentially volatile, especially since the affected areas are "valuable environmental or recreational resources."
(B) Such grants shall be allocated to any such state based on rules and regulations promulgated by the Secretary which shall take into account the number of coal or alternative ocean energy facilities, the nature of their impacts, and such other relevant factors deemed appropriate by the Secretary.
COMMENTARY
(B) It is refreshing to know that this subsection does establish two important criteria which must be taken into account when rules and regulations are promulgated for coastal state grant allocations. Such insight promotes fairness regarding grant
allocations stemming from energy development activities in states' coastal zones.
(d)(1) The Secretary shall make loans to any coastal state and to any unit of general purpose local government to assist such state or unit to provide new or improved public facilities or public services, or both, which are required as a result of coastal energy activity. Such loans shall be made solely pursuant to this title, and no such loan shall require as a condition thereof that any such
- 40 -


state or unit pledge its full faith and credit to the repayment thereof. No loan shall be made under this paragraph after September 30, 1986.
COMMENTARY
(d)(1) While the intent of this subsection is noteworthy, the phrase "which are required as a result of coastal energy activity" needs further explanation. How is a legitimate determination suppose to be made regarding state or local infrastructure improvement loan requests as they relate to "which are required"? Until this phrase is either removed or improved upon, its ambiguity will create interpretative problems.
(2) The Secretary shall, subject to the provisions of
subsection (f), guarantee, or enter into commitments to guarantee, the payment of interest on, and the principal amount of, any bond or other evidence of indebtedness if it is issued by a coastal state or a unit of general purpose local government for the purpose of providing new or improved public facilities or public services, or both, which are required as a result of a coastal energy activity. COMMENTARY
(2) Provided that any state or local government utilizes
borrowed funds for the purpose of providing new or improved public facilities or services as required by any coastal energy activity, the Federal government will guarantee payment on both the interest and principal still owed. This Federal assurance encourages a working rapport between state and local governments and the banking community to promote a common goal.
(3) If the Secretary finds that any coastal state or unit of
general purpose local government is unable to meet its obligations pursuant to a loan or guarantee made under paragraph (1) or (2) because the actual increases in employment and related population resulting from coastal energy activity and the facilities associated with such activity do not provide adequate revenues to enable such
state or unit to meet such obligations in accordance with the
appropriate repayment schedule, the Secretary shall, after review of the information submitted by such state or unit pursuant to subsection (e)(3), take any of the following actions:
(A) Modify appropriately the terms and conditions of such loan or guarantee.
(B) Refinance such loan.
(C) Make a supplemental loan to such state or unit the proceeds of which shall be applied to the payment of principal and interest due under such loan or guarantee.
(D) Make a grant to such state or unit the proceeds of which shall be applied to the payment of principal and interest due under such loan or guarantee.
Notwithstanding the preceding sentence if the Secretary -
(i) has taken action under subparagraph (A), (B), or (C) with respect to any loan or guarantee made under paragraph (1) or (2), and
(ii) finds that additional action under subparagraph (A), (B),
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or (C) will not enable such state or unit to meet, within a reasonable time, its obligations under such loan or guarantee and any additional obligations related to such loan or guarantee; the Secretary shall make a grant or grants under subparagraph (D) to such state or unit in an amount sufficient to enable such state or unit to meet such outstanding obligations.
COMMENTARY
(3) This subsection and its related subsections adequately
address the role the Federal government will assume regarding loans or guarantees for infrastructure improvements in a state's coastal zone. Such provisions demonstrate the importance of assuring that
such needed projects will be completed. What is interesting to note is that financial strategies (A), (B) and (C) stress continuance of state or local responsibilities for loans or guarantees, but financial strategy (D) is a Federal grant which eliminates state or local loan or guarantee responsibility.
(4) [308(d)(4) deleted]
CCMM ENTARY
(4) Why a reference is made to a subsection which was deleted by an amendment is unknown. It is recommended that a total deletion be affected.
(e) Rules and regulations with respect to the following matters shall be promulgated by the Secretary as soon as practicable, but not later than 270 days after the date of the enactment of this section: CCMM ENTARY
(e) The need for defined rules and regulations for the issuance of loans for infrastructure improvements required as a result of coastal energy activity, is the theme of this subsection.
(1) A formula and procedures for apportioning equitably, among the coastal states, the amounts which are available for the provision of financial assistance under subsection (d). Such formula shall be based on, and limited to, the following factors:
COMMENTARY
(1) While a formula and procedures for equitable loan
apportionment is needed, the phrase, "Such formula shall be based on, and limited to, the following factors:" severely restricts the creativity of the Secretary of Commerce in this endeavor. An appropriate revision would be, "Such formula shall include, but not be limited to, the following factors:"
(A) The number of additional individuals who are expected to become employed in new or expanded coastal energy activity, and the related new population, who reside in the respective coastal states. COMMENTARY
(A) Simplified, the key elements of this subsection are the additional number of individuals who will be directly employed and indirectly employed as a result of coastal energy activities. Another important element is the increased population of non-employed
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types, such as children, wives, and other family relatives.
(B) The standardized unit costs (as determined by the Secretary by rule), in the relevant regions of such states, for new or improved public facilities and public services which are required as a result of such expected employment and the related new population.
COMMENTARY
(B) The two interesting stipulations in this subsection concern standardized unit costs in the relevant regions of such coastal states. It must be assumed that standardized unit costs are based upon square footage and that relevant regions will exhibit similar unit costs. Such stipulations assure that, at a minimum, regional loan equality standards will exist.
(2) Criteria under which the Secretary shall review each coastal state's compliance with the requirements of subsection (g)(2). COMMENTARY
(2) This subsection requires the Secretary of Commerce to establish a monitoring procedure for ensuring that each coastal state allocates Federal funding to local governments on a proportional basis based upon need.
(3) Criteria and procedures for evaluating the extent to which any loan or guarantee under subsection (d)(1) or (2) which is applied for by any coastal state or unit of general purpose local government can be repaid through its ordinary methods and rates for generating tax revenues. Such procedures shall require such state or unit to submit to the Secretary such information which is specified by the Secretary to be necessary for such evaluation, including, but not limited to -
COMMENTARY
(3) The intent of this subsection and its subordinate subsections is to determine a state's or local government's "ability to pay" on Federal loans for infrastructure improvements in their coastal jurisdictions.
(A) a statement as to the number of additional individuals who are expected to become employed in the new or expanded coastal energy activity involved, and the related new population, who reside in such state or unit;
COMMENTARY
(A) An estimate of increased population due to coastal energy development activities is an imperative element because a population increase positively affects the tax base, and hence increases the "ability to pay" on outstanding Federal loans.
(B) a description, and the estimated costs of the new or improved public facilities or public services needed or likely to be needed as a result of such expected employment and related new population;
COMMENTARY
(B) Before loans are issued under this subsection, a coastal
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state or local government must provide infrastructure improvement cost estimates. This procedure is an accepted financial practice in the business world.
(C) a projection of such state's or unit's estimated tax receipts during such reasonable time thereafter, not to exceed 30 years, which will be available for the repayment of such loan or guarantee; and COMMENTARY
(C) While (A) and this subsection could probably be combined, this subsection encompasses the entire tax base spectrum, rather than just the anticipated income from additional individuals. Such consideration is noteworthy because it dissects state or local governmental tax revenues, for the purpose of determining "ability to pay" on issued Federal loans.
(D) a proposed repayment schedule.
The procedures required by this paragraph shall also provide for the periodc verification, review, and modification (if necessary) by the Secretary of the information or other material required to be submitted pursuant to this paragraph.
COMMENTARY
(D) Having gathered all necessary financial information, to include (A), (B), and (C), this subsection is essentially a contractual agreement between the Federal government and the borrower.
(4) Requirements, terms, and conditions (which may include the posting of security) which shall be imposed by the Secretary, in connection with loans and guarantees made under subsections (d)(1) and (2), in order to assure repayment within the time fixed, to assure that the proceeds thereof may not be used to provide public services for an unreasonable length of time, and otherwise to protect the financial interests of the United States.
COMMENTARY
(4) This subsection also outlines a standard business world procedure similar to that of (3)(B) above. In this case, the loan lender is the Federal government and the borrower is a coastal state or local government.
(5) Criteria under which the Secretary shall establish rates of interest on loans made under subsections (d)(1) and (3). Such rates shall not exceed the current average market yield on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the maturity of such loans.
In developing rules and regulations under this subsection, the Secretary shall, to the extent practicable, request the views of, or consult with, appropriate persons regarding impacts resulting from coastal energy activity.
COMMENTARY
(5) This subsection requires the Secretary of Commerce to establish criteria for determining interest rates on loans. While a
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ceiling is defined in this subsection, there should be consideration given for providing low interest loans to those coastal states or local governments in need of such assistance.
(f)(1) Bonds or other evidences of indebtedness guaranteed under subsection (d)(2) shall be guaranteed on such terms and conditions as the Secretary shall prescribe except that -
(A) no guarantee shall be made unless the indebtedness involved will be completely amortized within a reasonable period, not to exceed 30 years;
(B) no guarantee shall be made unless the Secretary determines that such bonds or other evidences of indebtedness will -
(1) be issued only to investors who meet the requirements prescribed by the Secretary, or, if an offering to the public is contemplated, be underwritten upon terms and conditions approved by the Secretary;
(ii) bear interest at a rate found not to be excessive by the Secretary; and
(iii) contain, or be subject to, repayment, maturity, and other provisions which are satisfactory to the Secretary;
(C) the approval of the Secretary of the Treasury shall be required with respect to any such guarantee, unless the Secretary of the Treasury waives such approval; and
(D) no guarantee shall be made after September 30, 1986. COMMENTARY
(f)(1) This subsection and its subordinate subsections outline the conditions in which a bond or similar indebtedness shall be
guaranteed. Specifically, provisions are cited to assure that certain conditions are met prior to a Federal loan guarantee. The interesting provision of this subsection is (C), because the
Secretary of the Treasury serves as a checking mechanism for such
loan guarantee activities.
(2) The full faith and credit of the United States is pledged
to the payment, under paragraph (5), of any default on any
indebtedness guaranteed under subsection (d)(2). Any such guarantee made by the Secretary shall be conclusive evidence of the eligibility of the obligation involved for such guarantee, and the validity of any such guarantee so made shall be incontestable in the hands of a holder of the guaranteed obligation, except for fraud or material misrepresentation on the part of the holder, or known to the holder at the time acquired.
COMMENTARY
(2) Long winded, the key feature of this subsection is that any
loan or indebtedness guaranteed by the Secretary of Commerce is also guaranteed by the United States government. It is surprising that
such a subsection exists, especially when it is presumed that the Secretary of Commerce is an official agent of the United States.
(3) The Secretary shall prescribe and collect fees in connection with guarantees made under subsection (d)(2). These fees
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may not exceed the amount which the Secretary estimates to be necessary to cover the administrative costs pertaining to such
guarantees.
COMMENTARY
(3) In essence, this subsection allows the Secretary of
Commerce to charge an administrative fee for the processing of loans and other types of indebtedness seeking Federal guarantees.
(4) The interest paid on any obligation which is guaranteed
under subsection (d)(2) and which is received by the purchaser
thereof (or the purchaser's successor in interest), shall be included in gross income for the purpose of chapter 1 of the Internal Revenue Code of 1954. The Secretary may pay out of the Fund to the coastal state or the unit of general purpose local government issuing such obligations not more than such portion of the interest on such
obligations as exceeds the amount of interest that would be due at a
comparable rate determined for loans made under subsection (d)(1). COMMENTARY
(4) The weakness of this subsection is the phrase, "the Fund." This term needs to be defined more clearly.
(5) (A) Payments required to be made as a result of any
guarantee made under subsection (d)(2) shall be made by the Secretary from sums appropriated to the Fund or from moneys obtained from the Secretary of the Treasury pursuant to paragraph (6).
(B) If there is a default by a coastal state or unit of general
purpose local government in any payment of principal or interest due under a bond or other evidence of indebtedness guaranteed by the Secretary under subsection (d)(2), any holder of such bond or other evidence of indebtedness may demand payment by the Secretary of the unpaid interest on and the unpaid principal of such obligation as
they become due. The Secretary, after investigating the facts
presented by the holder, shall pay to the holder the amount which is due such holder, unless the Secretary finds that there was no default by such state or unit or that such default has been remedied.
(C) If the Secretary makes a payment to a holder under subparagraph (B), the Secretary shall -
(i) have all of the rights granted to the Secretary or the United States by law or by agreement with the obligor; and
(ii) be subrogated to all of the rights which were granted such holder, by law, assignment, or security agreement between such holder and the obligor.
Such rights shall include, but not be limited to, a right of reimbursement to the United States against the coastal state or unit of general purpose local government for which the payment was made for the amount of such payment plus interest at the prevailing current rate as determined by the Secretary. If such coastal state, or the coastal state in which such unit is located, is due to receive any amount under subsection (b), the Secretary shall, in lieu of paying such amount to such state, deposit such amount in the Fund until such right of reimbursement has been satisified. The Secretary
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may accept, in complete or partial satisfaction of any such rights, a conveyance of property or interests therein. Any property so obtained by the Secretary may be completed, maintained, operated, held, rented, sold, or otherwise dealt with or disposed of on such terms or conditions as the Secretary prescribes or approves. If, in any case, the sum received through the sale of such property is greater than the amount paid to the holder under subparagraph (D) plus costs, the Secretary shall pay any such excess to the obligor.
(D) The Attorney General shall, upon the reguest of the Secretary, take such action as may be appropriate to enforce any right accruing to the Secretary or the United States as a result of the making of any guarantee under subsection (d)(2). Any sums received through any sale under subparagraph (C) or recovered pursuant to this subparagraph shall be paid into the Fund.
COMMENTARY
(5) This subsection explains the rights and powers of the Secretary of Commerce regarding the collection of any defaulted, Federally guaranteed loans or other evidence of indebtedness. The interesting parts of this subsection are twofold in nature. The first is the Secretary of Commerce's right to a conveyance of property or interests therein as an acceptable means of defaulted loan reimbursement. The second is the utilization of the Attorney General and his or her respective staff, to affect payment on defaulted loans by the obligor. Such a Federal "collection agency" is a valued asset when the need arises.
(6) If the moneys available to the Secretary are not sufficient to pay any amount which the Secretary is obligated to pay under paragraph (5), the Secretary shall issue to the Secretary of the Treasury notes or other obligations (only to such extent and in such amounts as may be provided for in appropriation Acts) in such forms and denominations, bearing such maturities, and subject to such terms and conditions as the Secretary of the Treasury prescribes. Such notes or other obligations shall bear interest at a rate determined by the Secretary of the Treasury on the basis of the current average market yield on outstanding marketable obligations of the United States on comparable maturities during the month preceding the issuance of such notes or other obligations. Any sums received by the Secretary through such issuance shall be deposited in the Fund. The Secretary of the Treasury shall purchase any notes or other obligations issued under this paragraph, and for this purpose such Secretary may use as a public debt transaction the proceeds from the sale of any securities issued under the Second Liberty Bond Act, as now or hereafter in force. The purposes for which securities may be issued under that Act are extended to include any purchase of notes or other obligations issued under this paragraph. The Secretary of the Treasury may at any time sell any of the notes or other obligations so acquired under this paragraph. All redemptions, purchases, and sales of such notes or other obligations by the Secretary of the Treasury shall be treated as public debt transactions of the United States.
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CCMM ENTARY
(6) This subsection outlines the procedure the Secretary of Commerce uses if insufficient funds exist for the Federal obligations defined in subsection (5). The key to this subsection is the relationship which is established between the Secretary of Commerce and the Secretary of the Treasury regarding Federal financial endeavors concerning Section 308.
(g)(1) No coastal state is eligible to receive any financial assistance under this section unless such state -
(A) has a management program which has been approved under section 306;
(B) is receiving a grant under section 305(c) or (d); or
(C) is, in the judgement of the Secretary, making satisfactory progress toward the development of a management program which is consistent with the policies set forth in section 303.
COMMENTARY
(g) (1) This subsection and its subordinate parts establish criteria necessary to be met prior to the issuance of any Federal financial assistance under Section 308.
(2) Each coastal state shall, to the maximum extent
practicable, provide that financial assistance provided under this section be apportioned, allocated, and granted to units of local government within such state on a basis which is proportional to the extent to which such units need such assistance.
COMMENTARY
(2) The intent of this subsection is to promote an equitable division of Federal funds by coastal states to their local governments. They key to this equitable allocation of funds is based upon the need of such assistance to reach the goals of this section.
(h) There is established in the Treasury of the United States the Coastal Energy Impact Fund. The Fund shall be available to the Secretary without fiscal year limitation as a revolving fund for the purposes of carrying out subsections (c)(1) and (d). The Fund shall consist of -
(1) any sums appropriated to the Fund;
(2) payments of principal and interest received under any loan made under subsection (d)(1);
(3) any fees received in connection with any guarantee made under subsection (d)(2); and
(4) any recoveries and receipts under security, subrogation, and other rights and authorities described in subsection (f).
All payments made by the Secretary to carry out the provisions of subsections (c)(1),(d), and (f) (including reimbursements to other Government accounts) shall be paid from the Fund, only to the extent provided for in appropriation Acts. Sums in the Fund which are not currently needed for the purposes of subsections (c)(1), (d), and (f) shall be kept on deposit or invested in obligations of, or guaranteed by, the United States.
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COMMENTARY
(h) Here is the first mention of what constitutes "The Fund." Since the term is utilized in the context of the Coastal Zone Management Act of 1972 (see Section 308 (f)(4) and (f)(5)(A)) prior to being properly defined, some type of reversal needs to be instrumented. Clarity will only be afforded if this definition preceeds the usage of the term in this section. The subordinate subsections of this subsection merely define "The Fund" more fully.
(i) The Secretary shall not intercede in any land use or water use decision of any coastal state with respect to the siting of any energy facility or public facility by making siting in a particular location a prerequisite to, or a condition of, financial assistance under this section.
COMMENTARY
(i) The impetus of this subsection is to assure that the coastal states maintain full control of any land use or water use decisions involving energy or public facility siting. Towards this end, the Secretary of Commerce cannot influence such decisions by making Federal financial assistance contingent upon particular locational facility siting.
(j) The Secretary may evaluate, and report to the Congress, on the efforts of the coastal states and units of local government therein to reduce or ameliorate adverse consequences resulting from coastal energy activity and on the extent to which such efforts involve adequate consideration of alternative sites.
COMMENTARY
(j) This subsection allows the Secretary of Commerce to submit
a report to Congress concerning the efforts of coastal states and local governments in two distinct areas. The first area of
consideration is the ability to reduce or improve upon adverse consequences resulting from coastal zone energy activity. The second area of consideration is the extent to which such planning efforts involve adequate alternative site selections.
(k) To the extent that Federal funds are available under, or pursuant to, any other law with respect to -
(l) study and planning for which financial assistance may be provided under subsection (b)(4)(B) and (c)(1), or
(2) public facilities and public services for which financial assistance may be provided under subsection (b)(4)(B) and (d), the Secretary shall, to the extent practicable, administer such
subsections -
(A) on the basis that the financial assistance shall be in addition to, and not in lieu of, any Federal funds which any coastal state or unit of general purpose local government may obtain under any other law; and
(B) to avoid duplication.
COMMENTARY
(k)(l)-(2) The key to this subsection and its subordinate parts
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is that any Federal funds available from other sources shall be "in addition to", rather than "in lieu of" Federal funds already available under this section. Thus, the terms "supplemental Federal funding" and "non-duplicative Federal funding" would be appropriate in this instance.
(1) As used in this section -
(1) The term 'retirement,1 when used with respect to bonds, means the redemption in full and the withdrawal from circulation of those which cannot be repaid by the issuing jurisdiction in accordance with the appropriate repayment schedule.
(2) The term 'unavoidable,' when used with respect to a loss of any valuable environmental or recreational resource, means a loss, in whole or in part -
(A) the costs of prevention, reduction, or amelioration of which cannot be directly or indirectly attributed to, or assessed against, any identifiable person; and
(B) cannot be paid for with finds which are available under, or pursuant to, any provision of Federal law other than this section.
(3) The term 'unit of general purpose local government' means any political subdivision of any coastal state or any special entity created by such a state or subdivision which (in whole or part) is located in, or has authority over, such state's coastal zone, and which (A) has authority to levy taxes or establish and collect user fees, and (B) provides any public facility or public service which is financed in whole or part by taxes or user fees.
COMMENTARY
(1) This subsection defines the terms, "retirement,"
"unavoidable" and "unit of general purpose local government." While these defintions are needed, their placement at the back of this section, without mention of their location when the terms appear in context, leaves something to be desired.
INTERSTATE GRANTS
SEC. 309. (a) The coastal States are encouraged to give high priority -
(1) to coordinating State coastal zone planning, policies, and programs with respect to contiguous areas of such States;
(2) to studying, planning, and implementing unified coastal zone policies with respect to such areas; and
(3) to establishing an effective mechanism, and adopting a Federal-State consultation procedure, for the identification, examination, and cooperative resolution of mutual problems with respect to the marine and coastal areas which affect, directly or indirectly, the applicable coastal zone.
The coastal zone activities described in paragraphs (1), (2), and (3) of this subsection may be conducted pursuant to interstate agreements or compacts. The Secretary may make grants annually, in amounts not to exceed 90 percent of the cost of such activities, if the Secretary finds that the proceeds of such grants will be used for
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purposes consistent with sections 305 and 306.
COMMENTARY
(a) (l)-(3) This subsection and its subordinate parts encourage
coastal states to give high priority to contiguous areas' State coastal zone planning, to the establishment of unified coastal zone policies in these areas, and to establish an effective Federal-State problem solving and consultation procedure for coastal zone matters. The interesting economic incentive offered by the Federal government in this section is contained in the latter part of (a)(3). It
stipulates that if interstate agreements or compacts can be formulated, regarding the three aforementioned high priorities, those coastal states will be eligible for interstate grants of up to 90
percent of the incurred costs. Since Section 305 or 306 only allow
for Federal grants of up to 80 percent, this 90 percent grant
potential is an incentive for coastal states to enter into regional planning efforts.
(b) The consent of the Congress is hereby given to two or more
coastal States to negotiate, and to enter into, agreements or
compacts, which do not conflict with any law or treaty of the United States, for -
(1) developing and administering coordinated coastal zone planning, policies, and programs pursuant to section 305 and 306; and
(2) establishing executive instrumentalities or agencies which
such States deem desirable for the effective implementation of such agreements or compacts. Such agreements or compacts shall be binding and obligatory upon any State or party thereto without further
approval by the Congress.
COMMENTARY
(b) (1)-(2) The information provided in this subsection is a
reemphasis of the Federal position, the promotion of coastal states to enter into interstate agreements or compacts concerning coastal zone matters of mutual interest.
(c) Each executive instrumentality or agency which is
established by an interstate agreement or compact pursuant to this
section is encouraged to give high priority to the coastal zone activities described in subsection (a). The Secretary, the Secretary of the Interior, the Chairman of the Council on Environmental Quality, the Administrator of the Environmental Protection Agency, the Secretary of the department in which the Coast Guard is
operating, and the Secretary of Energy, or their designated representatives, shall participate ex officio on behalf of the Federal Government whenever any such Federal-State consultation is requested by such an instrumentality or agency.
COMMENTARY
(c) This subsection recognizes any interstate coastal agency so established as the result of an interstate agreement or compact. With such recognition, these agencies are encouraged to fullfill the three coastal zone planning activities mentioned in (a) above. In closing, this subsection requires various Federal agency
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participation whenever any Federal-State consultation is requested by such an interstate coastal agency.
(d) If no applicable interstate agreement or compact exists, the Secretary may coordinate coastal zone activities described in subsection (a) and may make grants to assist any group of two or more coastal States to create and maintain a temporary planning and coordinating entity to carry out such activities. The amount of such grants shall not exceed 90 percent of the cost of creating and maintaining such an entity. The Federal officials specified in
subsection (c), or their designated representatives, shall
participate on behalf of the Federal Government, upon the request of any such temporary planning and coordinating entity for a Federal-State consultation.
CCMM ENTARY
(d) This subsection could be classified as an "interim status" interstate coastal entity subsection. The impetus here is to give coastal states interested in forming interstate coastal agencies the opportunity to receive 90 percent Federal grants while in the process of forming such an agency.
(e) A coastal State is eligible to receive financial assistance under this section if such State meets the criteria established under section 308(g)(1).
COMMENTARY
(e) The intent of this subsection is to define coastal state eligibility for Federal grants under Section 309. The added requirement is to meet the criteria established under Section 308(g)(1).
RESEARCH AND TECHNICAL ASSISTANCE FOR COASTAL ZONE MANAGEMENT
SEC. 310. (a) The Secretary may conduct a program of research, study, and training to support the development and implementation of management programs. Each department, agency, and instrumentality of the executive branch of the Federal Government may assist the Secretary, on a reimbursable basis or otherwise, in carrying out the purposes of this section, including, but not limited to, the furnishing of information to the extent permitted by law, the transfer of personnel with their consent and without prejudice to their position and rating, and the performance of any research, study, and training which does not interfere with the performance of the primary duties of such department, agency, or instrumentality. The Secretary may enter into contracts or other arrangements with any qualified person for the purposes of carrying out this subsection. COMMENTARY
(a) This subsection's focus is the Secretary of Commerce's authority to conduct a program of research, study, and training to support the development and implementation of state coastal management programs. Toward this end, the Secretary of Commerce is
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authorized to seek any qualified Federal agency personnel and qualified private sector personnel to meet the needs of this research and development oriented program.
(b) The Secretary may make grants to coastal states to assist such states in carrying out research, studies, and training required with respect to coastal zone management. The amount of any grants made under this subsection shall not exceed 80 percent of the cost of such research, studies, and training.
CCMM ENTARY
(b) This subsection allows the Secretary of Commerce to make
Federal grants of up to 80 percent to coastal states for carrying out research, studies, and training required with respect to coastal zone management programs. The problem with this subsection is the word "required." In the context given, such a word necessitates an
interpretation, and the question of a Federal or State interpretation is the issue.
(c) (1) The Secretary shall provide for the coordination of research, studies and training activities under this subsection with any other such activities that are conducted by, or subject to the authority of, the Secretary.
COMMENTARY
(c)(1) The direction of this subsection is the coordination of all research, studies, and training activities with other similar activities.
(2) The Secretary shall make the results of research conducted pursuant to this section available to any interested person.
COMMENTARY
(2) This subordinate subsection requires the Secretary of
Commerce to make available the results of any coastal related research to any interested person.
PUBLIC HEARINGS
SEC. 311. All public hearings required under this title must be announced at least thirty days prior to the hearing date. At the
time of the announcement, all agency materials pertinent to the hearings, including documents, studies, and other data, must be made available to the public for review and study. As similar materials are subsequently developed, they shall be made available to the public as they become available to the agency.
COMMENTARY
SEC. 311. Succinctly stated, this section defines the
requirements for conducting public hearings under this title. While a thirty day pre-hearing public notice and agency pertinent materials availability are the specific keynotes of this section, the real impetus is the involvement of the public, the private sector and special interest groups in the planning process in the coastal zones of our Nation.
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REVIEW OF PERFORMANCE
SEC. 312.(a) The Secretary shall conduct a continuing review of the performance of coastal states with respect to coastal management. Each review shall include a written evaluation with an assessment and detailed findings concerning the extent to which the state has implemented and enforced the program approved by the Secretary, addressed the coastal management needs identified in section 303(2)(A) through (I), and adhered to the terms of any grant, loan, or cooperative agreement funded under this title.
COMMENTARY
SEC. 312.(a) This subsection requires the Secretary of Commerce to conduct a continuing review of the performance of coastal states regarding their respective coastal zone management programs. The content of each review will include detailed findings about the state's implementation and enforcement of their program, as it concerns the coastal management needs identified in Section 303(2)(A)-(I). This written review will also cover coastal state adherence to the terms of any grant, loan or cooperative agreement funded under this title. The only noticeable weakness of this subsection is the lack of a defined time period in which these reviews must be written. Although the reviews are to be continuous, an annual or biennial performance review requirement would seem appropriate.
(b) For the purpose of making the evaluation of a coastal state's performance, the Secretary shall conduct public meetings and provide opportunity for oral and written comments by the public. Each such evaluation shall be prepared in report form and the Secretary shall make copies thereof available to the public.
CCMM ENTARY
(b) The key emphasis of this subsection is the inclusion of both oral and written public comments into a state's coastal zone management program performance review.
(c) The Secretary shall reduce any financial assistance
extended to any coastal state under section 306 (but not below 70 per centum of the amount that would otherwide be available to the coastal state under such section for any year), and withdraw any unexpended portion of such reduction, if the Secretary determines that the coastal state is failing to make significant improvement in achieving
the coastal management objectives specified in section 303(2)(A)
through (I).
CCMM ENTARY
(c) This subsection permits the Secretary of Commerce to
penalize coastal states up to 10 percent of their total financial
assistance under Section 306, for failing to make significant improvement towards achieving the coastal zone management objectives as outlined in Section 302(2)(A)-(I). The weakness of this subsection is the lack of a specified time period in which the
Secretary of Commerce will perform such a review and instrument such
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penalties as needed.
(d) The Secretary shall withdraw approval of the management program of any coastal state, and shall withdraw any financial assistance available to that state under this title as well as any unexpended portion of such assistance, if the Secretary determines that the coastal state is failing to adhere to, is not justified in deviating from (1) the management program approved by the Secretary, or (2) the terms of any grant or cooperative agreement funded under section 306, and refuses to remedy the deviation.
COMM ENTARY
(d) The focus of this subsection is the power delegated to the Secretary of Commerce to withdraw approval of a state's coastal zone management program and any Federal funding if a state, (1) fails to adhere to, or is deviating from said approved program, or (2) fails to follow the terms of any grant or cooperative agreement funded under Section 306, and fails to rectify the matter. This subsection is a powerful tool which encourages coastal states to comply with Federal directives under this title.
(e) Management program approval and financial assistance may not be withdrawn under subsection (d), unless the Secretary gives the coastal state notice of the proposed withdrawal and an opportunity for a public hearing on the proposed action. Upon the withdrawal of management program approval under this subsection (d), the Secretary shall provide the coastal state with written specifications of the actions that should be taken, or not engaged in, by the state in order that such withdrawal may be canceled by the Secretary.
COMMENTARY
(e) This subsection defines the actions which the Secretary of Commerce must follow if a coastal state is to be subjected to the withdrawal of its approved management program or Federal financial assistance. The first action is a Federal notice issuance to the coastal state and an opportunity for a public hearing on the proposed action. The second action is to provide the coastal state with written specifications of the remedial actions which should be taken, or practices that should be eliminated, in order for the coastal state to affect cancellation of such a Fedral withdrawal action.
(f) The Secretary shall carry out research on, and offer technical assistance to the coastal states with respect to, those activities, projects, and other relevant matters evaluated under this section that the Secretary considers to offer promise toward improving coastal zone management.
COMMENTARY
(f) This subsection allows the Secretary of Commerce to conduct research on, and offer Federal technical assistance to any coastal state engaged in those activities, projects and other matters evaluated under this secton. Such freedom encourages a cooperative Federal-state relationship regarding coastal zone planning and implementation efforts.
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RECORDS AND AUDIT
SEC. 313.(a) Each recipient of a grant under this title or of financial assistance under Sec. 308 shall keep such records as the Secretary shall prescribe, including records which fully disclose the amount and disposition of the funds received under the grant and of the proceeds of such assistance,the total cost of the project or undertaking supplied by other sources, and such other records as will facilitate an effective audit.
COMMENTARY
(a) The information provided in this subsection requires every recipient of a grant or financial assistance under this title, to maintain financial records as the Secretary of Commerce requires.
(b) The Secretary and the Comptroller General of the United States, or any of their duly authorized representatives, shall -
(1) after any grant is made under this title or any financial assistance is provided under section 308(d); and
(2) until the expiration of 3 years after -
(A) completion of the project, program, or other undertaking for which such grant was made or used, or
(B) repayment of the loan or guaranteed indebtedness for which such financial assistance was provided. Shall have access for purposes of audit and examination to any record, book, document, and paper which belongs to or is used or controlled by, any recipient of the grant funds or any person who entered into any transaction relating to such financial assistance and which is pertinent for purposes of determining if the grant funds or the proceeds of such financial assistance are being, or were, used in accordance with the provisions of this title.
COMMENTARY
(b) This subsection permits the Secretary of Commerce and the Comptroller General of the United States, under defined conditions, to conduct audits or examinations of any financial record, book, document or paper concerning grants or financial assistance issued under this title.
ADVISORY COMMITTEE
SEC. 314.(a) The Secretary is authorized and directed to
establish a Coastal Zone Management Advisory Committee to advise, consult with, and make recommendations to the Secretary on matters of policy concerning the coastal zone. Such commmittee shall be composed of not more than fifteen persons designated by the Secretary and shall perform such functions and operate in such a manner as the Secretary may direct. The Secretary shall insure that the committee membership as a group possesses a broad range of experience and knowledge relating to problems involving management, use,
conservation, protection, and development of coastal zone resources.
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COMMENTARY
SEC. 314.(a) This subsection requires the Secretary of Commerce to establish a Coastal Zone Management Advisory Committee to advise, consult with, and make recommendations to the Secretary on coastal zone policy matters. The two stipulations are that the committee may only have a maximum of fifteen members and that committee members must possess a broad range of coastal zone resources experience and knowledge.
ESTUARINE SANCTUARIES AND ISLAND PRESERVATION
SEC. 315. The Secretary may, in accordance with this section and in accordance with such rules and regulations as the Secretary shall promulgate, make grants to any coastal state for the purpose of
(1) acquiring, developing, or operating estuarine sanctuaries, to serve as natural field laboratories in which to study and gather data on the natural and human processess occurring within the estuaries of the coastal zone; and
(2) acquiring lands to provide for the preservation of islands, or portions thereof.
The amount of any such grant shall not exceed 50 per centum of the cost of the project involved; except that, in the case of acquisition of any estuarine sanctuary, the Federal share of the cost thereof shall not exceed $3,000,000. No grant for acquisition of land may be made under this section without the approval of the Governor of the State in which is located the land proposed to be acquired.
COMMENTARY
SEC. 315 This section and its subsections encourage the Secretary of Commerce to make grants of up to 50 percent or less than three million dollars, for the acquisition, development and operation of estuarine sanctuaries in coastal states. Such estuarine sanctuaries are to serve as natural field laboratories for studying and gathering data on natural and human processes within estuaries of the coastal zone. The key requirement of this section is that no Federal grant for land acquisition can be without the approval of the affected coastal state's Governor. The interesting aspect of this section is that Federal grants can be made to coastal states strictly for the purpose of acquiring and preserving island properties.
COASTAL ZONE MANAGEMENT REPORT
SEC. 316.(a) The Secretary shall consult with the Congress on a regular basis concerning the administration of this title and shall prepare and submit to the President for transmittal to the Congress a report summarizing the administration of this title during each period of two consecutive fiscal years. Each report, which shall be transmitted to the Congress not later than April 1 of the year following the close of biennial period to which it pertains, shall include, but not be restricted to (1) an identification of the state
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programs approved pursuant to this title during the preceding Federal fiscal year and a description of those programs; (2) a listing of the states participating in the provisions of this title and a description of the status of each state's programs and its accomplishments during the preceding Federal fiscal year; (3) an itemization of the allocation of funds to the various coastal states and a breakdown of the major projects and areas on which these funds were expended; (4) an identification of any state programs which have been reviewed and disapproved and a statement of the reasons for such action; (5) a summary of evaluation findings prepared in accordance with subsection (a) of section 312, and a description of any sanctions imposed under subsections (c) and (d) of this section;
(6) a listing of all activities and projects which, pursuant to the provisions of subsection (c) or subsection (d) of section 307, are not consistent with an applicable approved state management program;
(7) a summary of the regulations issued by the Secretary or in effect during the preceding Federal fiscal year; (8) a summary of a coordinated national strategy and program for the Nation's coastal zone including identification and discussion of Federal, regional, state, and local responsibilities and functions therein; (9) a summary of outstanding problems arising in the administration of this title in order of priority; (10) a description of the economic, environmental, and social consequences of energy activity affecting the coastal zone and an evaluation of the effectiveness of financial assistance under section 308 in dealing with such consequences; (11) a description and evaluation of applicable interstate and regional planning and coordination mechanisms developed by the coastal states; (12) a summary and evaluation of the research, studies, and training conducted in support of coastal zone management; and (13) such other information as may be appropriate.
COMMENTARY
(a) This subsection clearly defines the requirement, placed upon the Secretary of Commerce, to submit a biennial coastal zone management report to the President and Congress. The content of this report is a summation of the administration of this title, which includes coverage of twelve distinct areas. These twelve requirements provide a comprehensive review of a national coastal zone management program effort instrumented at the state and local government levels.
(b) The report required by subsection (a) shall contain such recommendations for additional legislation as the Secretary deems necessary to achieve the objectives of this title and enhance its effective operation.
COMMENTARY
(b) With an obviously important emphasis, this subsection requires that the biennial coastal zone management report contains any recommendations for additional legislation which will achieve the objectives and enhance the effective operation of this title. Although an important consideration, it seems that this requirement could be included with the twelve requirements in (a) above.
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(c)(1) The Secretary shall conduct a systematic review of Federal programs, other than this title, that affect coastal resources for purposes of identifying conflicts between the objectives and administration of such programs and the purposes and policies of this title. Not later than 1 year after the date of the enactment of this subsection, the Secretary shall notify each Federal agency having appropriate jurisdiction of any conflict between its program and the purposes and policies of this title identified as a result of such review.
(2) The Secretary shall promptly submit a report to the Congress consisting of the information required under paragraph (1) of this subsection. Such report shall include recommendations for changes necessary to resolve existing conflicts among Federal laws and programs that affect the uses of coastal resources.
COMMENTARY
(c) The impetus of this subsection and its two subordinate parts is to assure that all other Federal programs, which affect coastal resources and the coastal zone, are in harmony with the policies and objectives of this title. Towards meeting this goal, the Secretary of Commerce will include such recommendations for change to resolve conflicts among Federal laws and programs affecting the coastal zones in the biennial coastal zone management report.
RULES AND REGULATIONS
SEC. 317. The Secretary shall develop and promulgate, pursuant to section 553 of title 5, United States Code, after notice and opportunity for full participation by relevant Federal agencies, state agencies, local governments, regional organizations, port authorities, and other interested parties, both public and private, such rules and regulations as may be necessary to carry out the provisions of this title.
COMMENTARY
SEC. 317. This subsection instructs the Secretary of Commerce to develop and promulgate such rules and regulations as are necessary to carry out the provisions of this title. It is interesting to note that prior to such promulgation, public notice and opportunity for full participation in the development process is afforded to all factions of both the public sector and private sector. Such a participatory practice ensures that factional input is at least heard or at best incorporated into Federal rules and regulations to be promulgated.
AUTHORIZATION OF APPROPRIATIONS
SEC. 318.(a) There are authorized to be appropriated to the Secretary-
(1) such sums, not to exceed $48,000,000 for each of the fiscal years occurring during the period beginning October 1, 1980, and ending September 30, 1985, as may be necessary for grants under
section 306, to remain available until expended;
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of
the fiscal 1980, and grants under
1
period beginning October as may be necessary for
exceed $3,000,000 for each period beginning October as may be necessary for
(2) such sums, not to exceed $20,000,000 for each
years occurring during the period beginning October ending September 30, 1985, as may be necessary for
section 306A, to remain available until expended;
(3) such sums, not to exceed $75,000,000 for each years occurring during the ending September 30, 1988, section 308(b);
(4) such sums, not to
years occurring during the ending September 30, 1985,
section 309, to remain available until expended;
(5) such sums, not to exceed $9,000,000 for each
years occurring during the period begininning October
ending September 30, 1985, as may be necessary for
section 315 to remain available until expended;
(6) such sums, not to exceed $6,000,000 for each
years occurring during the period beginning October ending September 30, 1985, as may be necessary for
expenses incident to the administration of this title.
(b) There are authorized to be appropriated until October 1, 1986, to the Fund, such sums, not to exceed $800,000,000, for the purposes of carrying out the provisions of section 308, other than subsection (b), of which not to exceed $150,000,000 shall be for purposes of subsections (c)(1), and (c)(2) and (c)(3) of such section.
(c) Federal funds received from other sources shall not be used to pay a coastal state's share of costs under section 306 or 309. COMMENTARY
of the fiscal 1 1980, and grants under
of the fiscal 1, 1980, and grants under
of the fiscal 1 1980, and grants under
of the fiscal 1, 1980, and administrative
(a)-(c) Clearly stated, these subsections and their subordinate parts establish the amount of Federal appropriations authorized by Congress for each specific section under this title. Furthermore, each subordinate subsection has a defined time period in which such appropriations can be distributed or issued until they become exhausted. Although this section seems relatively insignificant, it is probably the single most important section of this title, for without such continuing appropriations the national coastal zone management program would falter.
5. Amendments to the Coastal Zone Management Act of 1972
Although the Coastal Zone Management Act of 1972 has been amended five times, the three significant amendments were in 1975, 1976, and 1980.
The 1975 amendment made changes in grant conditions for coastal state program development and administration.
In 1973-1974, the Organization of Petroleum Exporting Countries' (OPEC) oil embargo and resultant United States energy crisis made energy independence an important national priority. With the submission and review of the first two state coastal zone management programs, the Energy Research and Development Administration and the Federal Power Commission objected to the lack of identification of
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coastal areas suitable for energy development. Although the National Oceanic and Atmospheric Administration acknowledged this weakness, it adopted a position that coastal states were not required to designate specific energy development sites or areas under this title. "As a result, the three federal agencies actively criticized NOAA's implementation of the Coastal Zone Management Act of 1972 for failing to provide properly for energy facility sites."5
Because solitary energy facility siting bills had failed to pass in Congress for many years, Congress viewed the Coastal Zone Management Act of 1972 as the best vehicle for promoting the national interest in this area. The 1976 amendment to the title was the most significant to date. This amendment created the Coastal Energy Impact Program, a ten year, $1.2 billion dollar program which provided loans, grants and other types of financial assistance to coastal states to help minimize adverse impacts or provide public services made necessary by energy development in the coastal zone (see Section 308).
Another important amendment in 1976 affected the federal consistency provision (see Section 307). Specifically, the amendment included federal offshore leasing activities as subject to coastal state's consistency review power. Although a sympathetic Congressional gesture towards coastal states, this state review power was only extended to the three-mile limit. Such limited powers indicate that national energy independence takes priority over coastal states' coastal zone management objectives.
Other important 1976 amendment changes to the title included the establishment of a mediation process for resolving federal/state disagreements (see Section 307 (h)) and requirements that coastal states plan for public beach access (see Section 305 (b)(7)), energy facility siting (see Section 305 (b)(8)) and shoreline erosion protection (see Section 305 (b)(9)).
The 1976 amendment to the Coastal Zone Management Act of 1972 imposed significant new responsibilities upon the coastal states, especially in regards to energy development activities. Such amendment additions clearly showed that coastal zone mangement was a bonafide national concern.
"The 1980 amendment repeated Congressional concern that coastal states incorporate the national interest in the development and implementation of their coastal management programs."6 The amendment stated new national coastal policies as outlined in Section 303 (2) (A)-(I) of the title. Coastal states were required to use up to a maximum of 30 percent of their federal funds to address nine specific objectives (see Section 306 (a)(3)). Such directives reflected the fact that the period of coastal state management program development was declining and that the implementation of the state management programs was to take precedence.
Other 1980 amendment changes included the encourgement of special area management planning (see Section 306A), the establishment of a new grant program to encourage a state inventory and designation of coastal resources of national significance and enforcement standards to protect those resources (see Section 306
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(i)(A)(B)) and a total program reauthorization reduction from $101 million dollars to $86 million dollars annually (see Section 318 (a)(1), (2), (4), (5) and (6)).
In conclusion, the 1980 amendment reauthorized the Coastal Zone Management Act of 1972 through September 30, 1985 "to insure that recently developed coastal zone management efforts in the States and localities become fully established and accepted functions of their government."7
6. Implementation of the Coastal Zone Management Act of 1972.
A. The Federal Role
In reviewing the implementation of the title, two distinct
themes emerge. The first theme is that the legislative development of the Coastal Zone Management Act of 1972 has shifted towards an inclusion of national goals into state coastal management programs. The second emergent theme involves the degree to which federal administrators of the title have influenced the intent of the legislation.
In the initial six years after passage of the law, the National Oceanic and Atmospheric Administration's philosophy was to foster coastal state involvement in the program. From the beginning, NOAA employed a flexible management approach, viewing its role "as the states' friend in the federal establishment, on the premise that
coastal zone management is a state program, not a federal one."8 Three major factors dictated this philosophy. The first factor was that each coastal state possessed different political and legal systems, unique geographical problems and particular managerial expertise levels to address coastal zone planning and management. To attempt to impose stringent federal regulations was impractical. The second factor was that coastal state participation in the program was strictly voluntary. Unfortunately, the National Oceanic and Atmospheric Administration does not possess the administrative power that the Environmental Protection Agency or other federal agencies
with stronger legislative mandates possess. The third factor was that the title was an experiment in the promotion of federal-state
cooperation designed to resolve a nationally recognized land-use problem.
Thus, the National Oceanic and Atmospheric Administration was faced with the dilemma of balancing its desire to encourage coastal state participation in the program with its need to ensure a standard quality, approved state coastal zone management program for each coastal state. The motto of the agency became "best effort possible" in each coastal state.
The formative years of state coastal zone management program development entailed institutional building at both the state and local government levels. Only through such efforts could program success become a reality. This process has been unique because unlike most federal environmental quality programs, it does not impose minimum standards upon states. The "Coastal Zone Management
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of Act of 1972, following a pattern reminiscent more of land-use planning programs than of environmental initiatives..., provides substantial state discretion in interpreting and achieving its goals."9
An important reality in comprehending the federal role in coastal zone management is that it involves a degree of compromise. If more control over state program activities is desirable, one must anticipate less state and local government cooperation. If a particular coastal zone management objective is given a priority, such emphasis detracts from other program goals. This problem is clearly evidenced in the national interest policies set forth in the title (see Section 303).
Under the Coastal Zone Management Act of 1972, even though each coastal state determines its land-use management direction through its coastal zone management program, NOAA determines if all relevant interests are adequately addressed in the context of the state program. To ensure proper representation of all coastal interests the phrase "national interest in the effective management, beneficial use, protection, and development of the coastal zone" was incorporated into the title (see Section 302(a)). Thus, although seemingly conflicting in nature, this phrase effectively promotes the notion of multiple land-use based upon prudent management. This balancing approach was probably a wise decision in both the implementation of the Act and in encouraging coastal state partici pation.
B. State and Local Roles
Since the passage of the Coastal Zone Management Act of 1972, all thirty-five coastal states and territories have participated in the coastal zone management program to some degree (See Table 1). To date, twenty-eight coastal states and territories have federally approved coastal zone management programs.
From an historical standpoint, coastal state response to the title was positive. By 1975, every coastal state and territory had initiated efforts to develop a coastal zone management program under Section 305 of the title. There were three primary reasons for such a high level of state participation in program development. The first reason was that most coastal states already had some type of coastal management mechanism in place and welcomed federal financial assistance to coordinate their efforts. The second reason was that the title's requirements were relatively easy to satisfy. The third reason was the attraction of the federal consistency provision, for those coastal states interested in exercising some degree of control over federal agency activities in their state.
Even though a high level of state involvement existed, the range of state response to the Coastal Zone Management Act of 1972 was variable. "Uneven progress was noted in fostering state involvement as a result of differences in the states' coastal zone management experience, key management issues and type of coastal legislation already in place."10 By far the most crucial of these elements is
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TABLE 1. STATUS OF STATE COASTAL ZONE MANAGEMENT PROGRAMS
Participating State/Territory Actual or Estimated Federal Approval Date by FY (ends 9/30) Comments and Status 7/30/82
Washington 1976 A*
Oregon 1977 A
California 1978 A
Massachusetts 1978 A
Wisconsin 1978 A
Rhode Island 1978 A
Michigan 1978 A
North Carolina 1978 A
Puerto Rico 1978 A
Hawaii 1978 A
Maine 1978 A
Maryland 1978 A
New Jersey 1978 A
(Bay and ocean shore segment)
Virgin Islands 1978 A
Alaska 1978 A
Guam 1978 A
Delaware 1979 A
Alabama 1979 A
South Carolina 1979 A
Louisiana 1980 A
Mississippi 1980 A
Connecticut 1980 A
Pennsylvania 1980 A
New Jersey 1980 A
(Remaining section)
Northern Marianas 1980 A
American Samoa 1980 A
Florida 1981 A
New Hampshire 1982 A
New Hampshire 1982 A
(Ocean and harbor segment)
New York 1982 A
Virginia 1984 Expected to be approved
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TABLE 1. STATUS OF STATE COASTAL ZONE MANAGEMENT PROGRAMS continued
Nonparticipating State/Territory Actual or Estimated Federal Approval Date by FY (ends 9/30) Comments and Status 7/30/82
Ohio Nonpartici pating Landowners & developers opposed land-use controls, especially erosion hazard setback.
Indiana Nonparticipating State unable to develop adequate legislative base.
Georgia Nonparticipating State program document failed to meet 306 requirements
M innesota Nonparticipating Intense local opposition in two northernmost coastal counties.
Illinois Nonparticipating State unable to develop adequate legislative base.
Texas Nonparticipating Gov. Clements withdrew program from federal consideration
*A = Approved.
Source: OCMZ Information Update, February and July 1982
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the extent of the existing legislative base, upon which the formulation of a state coastal management program is dependent.
In examining the role of local government in coastal zone management, it is necessary to understand that land-use planning has traditionally been a local government responsibility. Even though this is an accepted role, many local governments forget that such powers are derived from their respective state. State power to exert such discretionary control over land-use in the coastal zone can inhibit cooperative planning and management efforts between state and local governments.
Within the context of the title, the management of the nation's coastal zone is contingent upon joint federal-state cooperation. Yet implementation has been delegated to local governments in most coastal states. In many cases, state coastal zone management was based upon the use of existing local land-use regulations. Thus, "implicit throughout the coastal enabling legislation is the assumption that local officials will accept a local-state partnership in the regulation of land-use in the coastal zone.
7. Summary
The Coastal Zone Management Act of 1972, and its incorporated amendments, is the first effort at national land-use planning. Although fears were initially expressed by many factions, there is a general consensus that effective coastal zone management is being achieved. At a minimum, the title holds promise in promoting a coordinated Federal-state-local national land-use planning effort in the coastal zone. Yet, because of its subjectivity, the Act will remain the topic of controversy, subject to constant debate.
To review both the positive attributes and negative aspects of the Coastal Zone Management Act of 1972 at this juncture would be premature. Rather, a detailed examination of three states' coastal zone management programs will be instrumental in determining the effectiveness or ineffectiveness of the title as it relates to land-use planning. Such a review will also provide the reader with an insight of what course the Coastal Zone Management Act of 1972 will take in the future.
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REFERENCES
lU. S. Commision On Marine Science, Engineering and Resources,
"Our Nation and the Sea" (Washington, 0. C., 1969).
2john C. Whitiker, "Striking A Balance: Environment and Natural Resources Policy in the Nixon-Ford Years," AEI Hoover Policy Studies, 1976, pages 151, 154.
3u. S. Commission On Marine Science, Engineering and Resources,
"Our Nation and the Sea" (Washington, D. C., 1969).
M. Armstrong and P. C. Ryner, "Ocean Management: A New Perspective" (Ann Arbor Science, 1981), page 59.
5Scott C. Whitney. "Siting of Energy Facilities, A Regulatory Hiatus," William & Mary Law Review, Volume 16, Number 4, 1975, page 813, and M. S. Baram, "Environmental Law and the Siting of Facilities: Issues in Land Use and Coastal Zone Management" (Cambridge: Ballinger Publishing Company, 1976).
6[)avid J. Brower and Daniel S. Carol, "Coastal Zone Management and Land Planning" (National Planning Association, 1984), page 9.
7Congressman Gerry Studds, Congressional Record, House of Representatives, September 30, 1980, page H10109.
8u. S. General Accounting Office, "The CZM Program: An Uncertain Future," GGD-76-107, December 10, 1976, page 76.
^Coastal Zone Management 1980: A Context for Debate (Washington,
D. C.: Conservation Foundation, March 1980), page 19.
lODavid j. Brower and Daniel S. Carol, "Coastal Zone Management and Land Planning" (National Planning Association, 1984), page 15.
11 Judy B. Rosener, "Intergovernmental Tension in Coastal Zone Management: Some Observations," CZM Journal, Volume 7, Number 1, 1980, page 97.
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Three Case Study Coastal States
1. Purpose
The purpose of this section is to examine three states' coastal zone management programs. Such an examination will be instrumental in determining whether this federal legislation has been effectively or ineffectively administered to state governments to promote and secure sound environmental and land-use planning and subsequent management of coastal zone resources.
In order to facilitate an adequate determination it will be necessary to review each state's coastal zone management program in four distinct categories.
The first category will be a review of the state program, to include such subcategories as coastal history and state coastal legislation, general program review and organizational analysis, and coastal environmental and land-use achievements.
The second category will provide an historical breakdown of the fiscal allocations afforded each coastal state to develop and implement their respective state coastal zone management program. Program funding from federal, state and local government sources is a crucial element in determining both program effectiveness and future potential. Before preceding with the third category, it is necessary to comprehend how funds are allocated to each coastal state. Although the following is only one example of how funds are divided, it does provide a basic understanding of how the Federal government arrives at such decisions on a statutory, section by section basis.
15 Code of Federal Regulations, Parts 400-1200,
(Revised as of January 1, 1984)
Part 926.5 State Allocation Computation Example
The following computation indicates the procedure by which a State's minimum allocation is derived. As an example, the State of Massachusetts was selected.
Basic Information:
U.S. shoreline: 95,223 miles Massachusetts shoreline: 1,519 miles U.S. coastal population: 89,086,762 Massachusetts coastal population: 2,862,290 Total funds available for Section 305 grants in fiscal year 1975: $9,000,000.
National allocation by criteria:
Uniform allocation: 1% x $9,000,000 x 34 coastal states
$3,060,000


Variable allocation:
Shoreline criterion: 40% x ($9,000,000* $3,060,000)
...................$2,376,000
Population criterion: 40% x ($9,000,000* $3,060,000) ...................$2,376,000
Needs criterion: 20% x ($9,000,000* $3,060,000) ...................$1,188,000
Total ..........$9,000,000
Minimum State allocation (Massachusetts) Uniform allocation: 1% x $9,000,000 .................................$90,000
Variable allocation:
Shoreline criterion:
1,519 miles x ... $37,902
95,223 miles x $2,376,000
Population criterion:
2,862,290 x ... $76,339
89,086,762 x $2,376,000
Minimum Massachusetts allocation total ........................$204,241
To this minimum allocation may be added an appropriate amount from the needs criterion funds.
Part 926.6 State Allocations
Using the method described in Part 926.5 of this part, allocations (excluding needs criterion funds) for California, Florida and New Jersey follow:
1. California* $620,000
2. Florida' $446,000
3. New Jersey* $284,000
'Rounded to nearest $1,000
The third category will review various coastal-related environmental and land-use litigations in each coastal state. The intent is to show the effectiveness or ineffectiveness of a state's coastal statutes through an examination of its judicial capabilities to enforce such statutes. For all coastal states, the format for review will include a statement of the issue or problem, then a
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review of the facts, followed by judicial conclusions and a personal conclusion.
The criterion utilized for coastal state judicial effectiveness or ineffectiveness will be as follows. A judicial decision in favor of the State or a compromise decision will be considered as a positive measure. A judicial decision against the State will be deemed as a negative measure. A simple final tabulation of the respective litigations reviewed will determine the State's judicial capabilities to enforce their coastal-related statutes.
Upon completion of the three aforementioned categories, an evaluation category for each state will also be provided.
2. California Coastal Zone Management Program (CCZMP)
A. Coastal History and State Coastal Legislation
Historically, the use of the coastal zone in California has been regulated by local government authorities exercising control over their respective jurisdictions. Over the course of time, a host of new governmental agencies have been given defined regulatory powers over certain coastal zone activities. These agencies have included Federal, State, regional and local governmental entities. By 1972, California's 1,372 miles of mainland coastline and offshore island coastline (see Figure 1 for California coastal zone) was subject to the jurisdictional authority of seventy Federal agencies, forty-two State agencies, forty-five municipalities and fifteen counties.
The effect of such dispersed governmental authority was taking an environmental toll upon California's coastal zone. Infrastructure pressures from population expansion along the coastline, conflicting demands upon finite coastal resources, and the absence of any definitive State policy regarding California's coastal zone resources was promoting a visible deterioration of the coastal environment. Such signs of environmental degradation were especially evident in highly urbanized areas. Continued warnings about this monumental problem and the need for a comprehensive, California Coastal Zone Management Program to encourage long-range conservation and promote wise management of California's limited coastal resources were echoed throughout the state. The earliest recognition of the problem and the need for a solution was expressed in a 1931 California joint legislative committee report on "Seacoast Conservation." More recent expressions were voiced in legislative reports and resolutions, State and local government studies and reports, California legislative hearings and bill proposals, and in numerous articles and
publications.
Past efforts to promulgate State or regional coastal zone planning and management programs in California were generally unsuccessful. The one exception was the 1965 establishment of the San Francisco Bay Conservation and Development Commission (SFBCDC), which was the result of a public campaign to "Save the Bay" from further landfill and development activities. Thus, the San Francisco Bay Conservation and Development Commission was the pioneer agency in
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CALIFORNIAS COASTAL ZONE
Figure 1
I
I
LEGEND
El State Boundary B Coastai Zone Boundary Coastai Zon
I
1 75 MILES
71


land-use and environmental planning and regulatory efforts in California's coastal zone.
Despite numerous legislator-initiated efforts, no similar coastal commission was formed to address the problems of California's mainland coastline and offshore island coastline. When comprehensive coastal zone legislation was finally enacted in California, it was as a result of a concerted effort by citizen organizations. Placed on the ballot on November 7, 1972, Proposition 20 became the California Coastal Conservation Act of 1972, after California voters, by a 55 to 45 percent margin, voted for the proposed initiative. With this passage, the California Coastal Conservation Act of 1972 established a temporary, four-year program designed to affect comprehensive planning and management of California's coastal zone resources. A California Coastal Zone Commission and six, subordinate Regional Commissions were also established and given a dual mandate. Their first task was to prepare a comprehensive and enforceable, long-range plan for the conservation and development of the coast. The second task was to regulate development activities while this plan was being prepared.
From 1973 until 1975, hundreds of public hearings were held throughout California concerning the evolving coastal zone plan. California Coastal Zone Commissioners and their regional counterparts dealt with the complex nature of issues facing the coast. Some of these issues included energy development activities, preservation of critical marine and terrestrial environments, beach access and recreational needs, transportation, economic development and design standards. As these commissions discovered, the interim permitting or regulatory process they established gave them a firsthand look at coastal issues. These regulatory bodies soon discovered that one of the most controversial issues involved the need to balance
development activities with land preservation for public recreation and beach access.
On December 1, 1975, the California Coastal Zone Commission
submitted a completed coastal zone management plan to the Governor and Legislature. During the 1976 California Legislative session, the California Coastal Zone Commission and Regional Commissions reviewed permitting procedures and commenced studying various approaches for implementing local coastal program procedures as outlined in the proposed plan.
From a legislative standpoint, the original coastal zone management program bill, California Senate Bill 1579, was introduced in the State Senate in early 1976. After several hearings and approval in one Senate committee, the bill failed to pass in the Senate Finance Committee. Seemingly dead until the next legislative session, the coastal bill was attached as an amendment to another bill, Senate Bill 1277. After Senate hearings and approval, Senate Bill 1277 emerged from both Legislative houses as the statutory basis of the California Coastal Zone Management Program. The common statutory name of this bill is the California Coastal Act of 1976.
Other coastal bills and regulations which comprise the California Coastal Zone Management Program included Assembly Bill 3544, Senate
- 72 -


Bill 1321, Assembly Bill 400, Assembly Bill 2133 and the California Coastal Zone Commisson Regulations. The common statutory names of the first two bills are the California Coastal Conservancy Act of 1976 and the California Urban and Coastal Park Bond Act of 1976. The latter two bills were primarily financially oriented. The first bill appropriated operating funds and additional land acquisition funds for Senate Bill 1277. The second bill appropriated funds for the acquisition, development and restoration of parks, beaches, and historical places, pursuant to Senate Bill 1277.
On January 1, 1977, when these five coastal statutes and corresponding regulations became effective, the California Coastal Zone Management Program became a reality. Subsequent Federal approval for the coastal program was granted in two sections.
Because the San Francisco Bay Conservation and Development Commission planning and regulatory effort preceded the mainland and offshore island coastline effort, the former was submitted earlier and became Federally approved in 1977. The latter coastal planning and management effort was subsequently granted Federal approval in 1978. The two combined segments form the California Coastal Zone Management Program as it is known today.
B. General Program Review and Organizational Analysis
1. General Program Review
Section 306(e)(1) in the Coastal Zone Management Act of 1972 requires participating coastal states to utilize any one or a combination of three general techniques for controlling land and water uses in their coastal zones. California's choice corresponds to the management technique described in Section 306(e)(1)(A), "state establishment of criteria and standards for local implementation, subject to administrative review and enforcement of compliance."
Although the California Coastal Conservation Act of 1972 established a strong State role in coastal zone planning and management, the California Coastal Act of 1976 modified this role. The California Public Resources Code, Part 30004(a) stipulates that the State Legislature finds and declares that, "to achieve maximum responsiveness to local conditions, accountability, and public accessibility, it is necessary to rely heavily on local government and local land use planning procedures and enforcement." The legislative reasoning for reliance upon local governments in the California Coastal Zone Management program is elementary. This first reason is that local governments are both accessible and accountable to their respective citizenries. The second reason is that local governments can best reflect the various conditions and societal values of the many diverse communities in the California coastal zone. The third reason is that the use of local government land-use planning and development review systems effectively reduces duplicative permitting efforts at the State level. Utilization of development review processes at the local level also promotes efficiency and reduces monetary costs incurred by applicants.
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Because California statutes require that every local government prepare a comprehensive plan to control land uses within its jurisdiction, local governmental implementation of their segment of the coastal zone management program was a logical choice. Accordingly, local comprehensive plans are required to be amended to conform to the California Coastal Act of 1976.
Under existing regulations, until local coastal programs are written and adopted locally, and approved by the California Coastal Zone Commission, the California Coastal Zone Commission and its six, subordinate Regional Commissions will continue to regulate coastal zone development activities. Upon approval, coastal zone permit review authority reverts to local governments. Although local governments maintain such review authority, the Coastal Zone Commission does retain permit review authority and appellate jurisdiction regarding development activities in which it determines that intervention is warranted.
The statutory framework upon which the California Coastal Zone Management Program functions is primarily centered around the California Coastal Act of 1976, the California Coastal Conservancy Act of 1976 and the California Urban and Coastal Park Bond Act of
1976.
By far the most significant of the three statutes is the
California Coastal Act of 1976. In order to provide an adequate general program review it will be necessary to examine this
legislation in some depth.
Chapter 1 is entitled Findings, Declaration, General Provisions. The first noteworthy part outlines State Legislature findings and declarations as they pertain to the California coastal zone. Three general areas are addressed in this part. The first part states that the coastal zone is a valuable natural resource that exists as a
delicately balanced ecosystem. The second part stipulates that permanent protection of natural and scenic coastal resources is a paramount concern. The final part advocates the need to protect the ecological balance of the coastal zone by preventing further environmental degradation.
The second important part defines the five basic goals of the state for the coastal zone. These five goals are as follows: to protect, maintain, and, where feasible, enhance and restore the overall quality of the coastal zone environment and its natural and manmade resources; to assure orderly, balanced utilization and conservation of coastal zone resources taking into account the social and economic needs of the people of the state; to maximize public access to and along the coast and maximize public recreational opportunities in the coastal zone consistent with sound resources conservation principles and constitutionally protected rights of private property owners; to assure priority for coastal-dependent development over other development on the coast; and, to encourage state and local initiatives and cooperation in preparing procedures to implement coordinated planning and development for mutually beneficial uses, including educational uses, in the coastal zone.
Other parts in this chapter worthy of mention are: The
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acknowledgement of the Coastal Plan, as prepared by the California Coastal Zone Conservation Commission pursuant to the California Coastal Zone Conservation Act of 1972, as the basic study for the California Coastal Zone Management Program; the role of local governments in the statewide coastal zone planning and implementation effort; the public participation role in the coastal planning process; and, private property owner rights as they relate to iminent domain.
Chapter 2 is entitled Definitions. Key definitions included coastal zone, development, local coastal program, sensitive coastal resource areas and wetland. A detailed review of this section reveals concise definitions for all terms.
Chapter 3 is entitled Planning and Management Policies. The first article of this chapte"? generally outlines the highlights of the chapter. The two areas addressed are the policies which constitute the standards by which the adequacy of local coastal programs are measured and the permissibility of proposed developments subject to provisions outlined in this chapter.
Articles 2 through 7 examine California coastal zone planning and management policies. Article 2 addresses public access, specifically, maximum permissible access, protection of historic use areas, provision for accessways to the coast and low cost housing and tourist facilities.
Article 3 covers recreation, with specific emphasis on prioritization of recreational uses and recreational boating.
Article 4 focuses upon the marine environment, with attention on water quality, diking, filling, dredging, shoreline structures and stream structures.
Article 5 addresses coastal land resources, with specific emphasis upon sensitive habitats, prime agriculture lands, soils and forestry.
The focus of Article 6 is development, specifically, a strategy of concentrated development, protection of scenic resources, development and access strategies, natural hazards mitigation and protection of special communities, public service facilities, and coastal-dependent development priority.
Article 7 covers industrial development. Specifics include coastal-dependent industries, general tanker terminals, liquefied natural gas terminals, oil and gas development, refineries and power plants.
Chapter 4 is entitled Creation ... Power of Commissions. Broken into three Articles, this chapter outlines the creation of, and powers of coastal commissions. Addressed in Article 1 is the creation and membership of coastal commissions. Specifics address the composition of the fifteen-member California Coastal Zone Commission, the composition of the six Regional Commissions, and the eventual phasing out of the Regional Commissions.
Article 2 stipulates the qualifications of all commission members and outlines the general organizational procedures to be followed in monthly public meetings.
In Article 3 commission powers and duties are outlined. These
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powers and duties include: the responsibility to implement any or all of the provisions of the California Coastal Act of 1976 and the Federal Coastal Zone Management Act of 1972, the power to adopt any rules or regulations deemed necessary to carry out the purposes of the two aforementioned statutes, the power to assist or seek the assistance of any California agency or governmental level concerning coastal zone matters, the duty to provide for a joint development permit review process and public hearing procedures with permit issuing local governments, to provide for adequate public participatory measures and to submit a biennial report to the Governor and State Legislature on the implementation of this state statute.
Entitled, State Agencies, Chapter 5 contains two descriptive articles. Article 1 covers such items as establishing no authorative changes in state agency powers, state agency consistency with this coastal statute, the establishment of local coastal programs as the basis for the California Coastal Zone Management Program, and to make recommendations to various state agencies to affect changes in their rules, regulations or statutes so as to promote consistency with this coastal statute.
Article 2 essentially covers the duties of various state agencies as they apply to this statute. These agencies include the San Francisco Bay Conservation and Development Commission, the California Department of Fish and Game, the California Department of Navigation and Ocean Development, the California Water Resources Control Board and subordinate regional water quality control boards, the California Energy Resources Conservation and Development Commission, the California Air Resources Board, the State Office of Planning and Research, the State Lands Commission and the State Board of Forestry.
Such coordinated interaction between state agencies, with the knowledge that none of their respective powers have been altered, can only serve to enhance the efforts of the California Coastal Zone Management Program.
Chapter 6, entitled Implementation, is a core chapter of this statute from a land-use planning and implementation standpoint. Article 1 deals with the Local Coastal Program (LCP), as it pertains to five specific categories. The first category stipulates that each local government, which lies in whole or in part within the defined coastal zone, must prepare a Local Coastal Program for its jurisdiction. Each local government does have the option to request that the California Coastal Zone Commission prepare their Local Coastal Program. The second category addresses Local Coastal Program formulation guidelines which local governments must follow. These guidelines include procedures for the preparation, submission, approval, appeal, certification, and amendment of all Local Coastal Programs. Covered in the third category are areas designated as environmentally sensitive coastal resource areas. The designations are jointly determined by the California Coastal Zone Commission and affected local governments. In the fourth category public and agency participation in the Local Coastal Program planning process are defined. The fifth category clarifies the relationship between local
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governments and special districts within their respective jurisdictions. Special districts are required to submit development plans to their local government for possible incorporation into its Local Coastal Program.
Article 2 of this chapter addresses procedures for the preparation and certification of Local Coastal Programs. Specifics include a stipulation that Local Coastal Programs may be submitted in phases or by geographically defined units, the procedures which must be followed by local governments to gain land-use plan certification and zoning certification, amendment procedures for certified Local Coastal Programs and public works projects, California Coastal Zone Committee actions if no Local Coastal Program is certified by 1981, local government Local Coastal Program review requirements, and a priority given to selected Local Coastal Programs which serve as program examples for other local governments.
Entitled Development Controls, Chapter 7 also serves as an integral part of the California coastal, land-use planning and implementation scheme. Broken down into two articles, Article 1 addresses general provisions. Highlights of this article include specifics on coastal development permit issuance authorities, permit application appeals process, review of public works projects, wetlands replacement measures, a vested interest clause for development activity prior to the enactment of this statute, coastal development permit exclusions to include defined urban areas, and an emergency permit exclusion clause.
Article 2 of this chapter covers development control procedures; specifically, California Coastal Zone Commission procedures for development review, provisions for the issuance of administrative/emergency permits, and provisions for the permit appeals process.
Chapter 8, 9 and 10 of the California Coastal Act of 1976 address coastal ports, judicial review and severability respectively. The latter chapter is defined as follows, "If any provision of this division or the applications thereof to any person or circumstances is held invalid, such invalidity shall not affect the other provisions or application of the division which can be given effect without the invalid provision or application, and to this end the provisions of this division are severable.
Having examined the most important of the three coastal-related California statutes, a brief review of the California Coastal Conservancy Act of 1976 and the California Urban and Coastal Park Bond Act of 1976 will be accomplished.
Passed in 1976, the California Coastal Conservancy Act of 1976 became implemented in early 1977. Modeled after the Tahoe Conservancy Agency, the Conservancy is tasked with carrying out a multitude of activities complementary to various State agencies. Such activities are not considered to be in competition with State agency activities.
In general, Conservancy requirements include implementing programs for agricultural lands protection, lands restoration, public access, and resource enhancement in the coastal zone. Each program
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will be covered following a brief look at the composition of the California Coastal Conservancy.
The Conservancy is a section within the California Resources Agency. It is composed of five members who include the Resources Agency Secretary who serves as the chairperson, the chairperson of the California Coastal Commission, the Director of Finance and two Governor appointed citizens.
The Coastal Conservancy may acquire, pursuant to the California Property Acquisition Law, real property, to include development rights and easements of land located in the coastal zone to prevent loss of agricultural lands. The highest priority for agricultural property development acquisition rights is for lands determined to be in urban fringe areas.
Coastal zone lands restoration is accomplished through a project program designed to provide State funding for troubled areas. In general, these areas are targeted because of dispersed ownership, poor lot design, inadequate park and open space and incompatible land uses which are adversely affecting orderly development or the environment in the coastal zone.
In conjunction with the California Department of Parks and Recreation, the Conservancy is authorized to implement a public access system to and along the California coastline. Toward that end, the Coastal Conservancy issues grants to the Department of Parks and Recreation or local governments.
Resource enhancement and protection efforts by the Coastal Conservancy also parallel Department of Parks and Recreation efforts, as well as those of the California Department of Fish and Game. The California Coastal Conservancy Act of 1976 stipulates that buffer zones, to be known as "resource protection zones," shall be established around public beaches, parks, natural areas, and fish and wildlife preserves in the coastal zone to ensure that surrounding development is compatible with the existent resource values.2
The enactment of the California Urban Coastal Park Bond Act of 1976 is the third major statute upon which the California Coastal Zone Management Program is based. Approved by California voters in 1976, the statute provided $145,000,000 for the acquisition of coastal areas and $10,000,000 for the California Coastal Conservancy to start its program. In enacting the Urban Coastal Park Bond Act of 1976, the State Legislature stated that, "There is a pressing need to provide statutory authority and funding for a coordinated state program designed to provide expanded public access to the coast, to preserve prime coastal agricultural lands, and to restore and enhance natural and man-made coastal environments.1^
Thus, the coastal planning and implementation approach which California has embarked upon is an effective combination of state policy and guidance and oversight of locally implemented coastal programs.
State-local relations concerning land-use and environmental planning as they pertain to the California Coastal Zone Management Program are exemplary. In choosing the management technique described in Section 306(e)(1)(A) of the Federal Coastal Zone
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Management Act of 1972, the State of California has effectively created interaction between state agencies, local governments and the populace of their coastal zone regarding coastal program planning and implementation.
2. Organizational Analysis
Although the California Coastal Zone Commission is the lead regulatory and administrative agency of the California Coastal Zone Management Program, nine other State agencies play and integral role in implementing coastal zone policies. These nine State agencies' roles will be reviewed next.
The California Department of Fish and Game's primary responsibility is to promote the establishment and control of wildlife and fishery management programs. This responsibility has remained unchanged with the enactment of coastal legislation. In conjunction with the California Department of Navigation and Ocean Department, the Department of Fish and Game studies degraded wetlands and identifies those which could be restored.
The California Water Resources Control Board and its subordinate regional water quality control boards retain their responsibility for the control of water quality in California. Although the California Coastal Zone Commission cannot take conflicting actions in water quality or water right matters, the California Water Code has been amended to ensure that all water boards support the California Coastal Zone Management Program as it pertains to protection of the coastal zone environment. The Coastal Zone Commission has been given limited regulatory authority over wastewater treatment plants in the coastal zone. These regulatory limitations pertain to permit reviews in the following categories.
"(1) The siting and visual appearance of treatment works within the coastal zone.
(2) The geographic limits of service areas within the coastal
zone which are to be served by particular treatment works and the timing of the use of capacity of treatment works for such service areas to allow for phasing of development and use of facilities consistent with this decision.
3) Development projections which determine the sizing of
treatment works for providing service within the coastal zone."4
In addition to the above permit review powers, the California Coastal Zone Commission's permit determination is to precede the
Water Resources Control Board's final approval for project funding. Another Coastal Zone Commission role includes an active part in site determination for wastewater treatment plants and discharge points in the coastal zone.
The California Energy Resources Conservation and Development
Commission's retention of its electrical generating facility permit authority has been modified somewhat by the California Coastal Act of 1976. Under this statute the Coastal Zone Commission is required to designate locations inappropriate for siting power plants on a biennial basis. Once this task has been completed, the Energy
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Resources Conservation and Development Commission has exclusive jurisdiction over all power plant activities.
The California Air Resources Board's authority to establish ambient air quality and emission standards and air pollution control programs is unaffected by the statutory legislation of the California Coastal Zone Management Program. The Air Resources Board can recommend to the California Coastal Zone Commission methods to assist in the implementation of air quality programs.
The State Office of Planning and Research is assigned the task of streamlining coastal zone planning and implementation efforts statewide. This task is accomplished by reviewing California Coastal Act of 1976 policies and recommending to affected State agencies actions that can be implemented to minimize duplicative efforts.
The primary responsibility of the State Lands Commission is to maintain jurisdictional authority and control over all untitled tidelands and submerged lands in California. The California Coastal Zone Management Program does not change or alter the authority of the State Lands Commission, as their role is to review and comment on proposed Local Coastal Programs and port master plans that could affect State lands.
The role that the State Board of Forestry plays in the California Coastal Zone Management Program is primarily one of forestry management coordination with the Coastal Zone Commission. The latter body is required to identify "special treatment areas" within coastal zone forestry lands and make recommendations to assure that the natural and scenic qualities of these areas are preserved. In turn, the State Board of Forestry is required to consider these recommendations in the promulgation of rules and regulations concerning timber operations.
The San Francisco Bay Conservation and Development Commission's role in the California Coastal Zone Management Program is obvious, since it actually maintains regulatory control over a distinct segment of the California coastal zone. In accordance with the California Coastal Act of 1976, the Coastal Zone Commission and the San Francisco Bay Conservation and Development Commission are to conduct a joint review of the California Coastal Act of 1976 and the McAteer-Petris Act of 1969 (San Francisco Bay Conservation and Development Commission's legislation) to determine how the San Francisco Bay Conservation and Development program should be related to the California Coastal Act of 1976.
Although these State agencies play an integral role in the California Coastal Zone Management Program, the foundation upon which the program is built is centered around the California Coastal Zone Commission Regional Coastal Zone Commissions Local Coastal Programs relationship.
In order to better comprehend the State agency relationship and the State agency local government relationship, the following organizational charts are provided (see Figures 2 and 3 respectively).
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Figure 2. State Agency Relationships in California's
Coastal Zone Management Program
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Figure 3. State Agency Local Government Relationship
in California Coastal Zone Management Program
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C. Coastal Environmental and Land-Use Achievements
A review of California's coastal environmental and land-use achievements will be accomplished by utilizing the Federal Reports to the Congress on Coastal Zone Management. These annual reports, in the early years of the Coastal Zone Management Act of 1972, were required under Section 313. Following an amendment change, these reports were submitted to Congress and the President on a biennial basis, as required by Section 316.
Major coastal accomplishments between 1972 and 1976 were as a result of the California Coastal Conservation Act of 1972. The California Coastal Zone Commission and its six, subordinate Regional Coastal Zone Commissions examined eight distinct areas, which when combined, became integral components of the California Coastal Zone Management Program. These eight areas which were studied are as follows.
The first area studied was the marine environment, with an emphasis upon the physical attributes of the coastal zone ... such as waves, tides, marine life and geological formations.
The second area explored was the terrestrial environment of the coastal zone. Specifically, the relationship between the ocean and shoreline was studied, as were alternative methods of shoreline protection.
The third area which was studied was geology, specifically geological hazards and an analysis of potential environmental dangers from mineral extraction.
The fourth area examined was energy. The two important areas that were evaluated were California's responsibility to provide for its own energy requirements and for the national need. Specific examination was conducted on energy facility siting and its potential impacts.
Recreation in the coastal zone was the fifth area studied. Specific areas examined included a statewide coastal zone study on potential recreational sites and a coastal zone public access improvement study.
The sixth area explored was general appearance and design. Such efforts were accomplished by surveying scenic coastal resources and recommending ways of enhancing these natural resources.
Transportation in the coastal zone was another area examined. The need for port facilities and coastal industrial sites were primary areas evaluated. Alternate land and air transportation systems were also examined.
The eighth area explored was development activity intensity, specifically a statewide assessment of the appropriate level of development for specific coastal areas. This study utilized techniques for determining the carrying capacity of specific areas, the tax revenue base potential and local government development planning and implementation capabilities.
In 1976, California's focus in coastal zone management was primarily legislative in nature. In establishing the legislative base through the enactment of three important coastal statutes, the
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stage was set to embark upon a statewide coastal zone management program. In order to accomplish this task, attention was redirected towards the preparation of local coastal implementation programs.
Coastal zone management program progress made in 1977 consisted of many distinctive efforts. The first noteworthy effort was Federal approval of the jurisdiction and authority of the San Francisco Bay Conservation and Development Commission as the first segment of the California Coastal Zone Management Program. During this time period, the San Francisco Bay Conservation and Development Commission refined its management program, developed three new planning elements, streamlined its permit process, increased its enforcement capabilities and developed a unified program with the California Coastal Zone Commission.
The second major effort of the year was the work performed by the California Coastal Zone Commission. Besides developing regulations pursuant to the California Coastal Act of 1976, the Commission supported local governments with their efforts to add a coastal zone element to their comprehensive plans and continued processing the multitude of coastal zone development permits.
In 1978, the highlight of the California coastal program effort was the Federal approval of the second segment of the California Coastal Zone Management Program.
Other efforts during this time period included the certification of approximately half of the Local Coastal Program's Land Use Plans (a Local Coastal Program consists of a Land Use Plan and the Implementation Program, which can be certified separately or together), the continued processing of coastal development permits by the six Regional Coastal Zone Commissions and a study of potential sites for energy facilities.
From 1979 to 1981 significant strides were made in coastal zone planning and implementation. During this period the California Coastal Zone Commission fully certified twenty of the sixty-eight Local Coastal Programs and four port plans. In conjunction with the California Coastal Conservancy, the California Coastal Zone Commission implemented a public access grant and sign program with the goal of opening dedicated public accessways for public use.
In Noventier 1980, the California Senate and Assembly held two important oversight hearings on significant deadlines outlined in the California Coastal Act of 1976. According to this statute, January 1, 1981 was the date which all Local Coastal Programs had to be submitted for certification, and July 31, 1981 was the termination date of the six Regional Coastal Zone Commissions. The legislative remedy for the first deadline was legislation which extended the deadline for Local Coastal Program submission to January 1, 1983. The second deadline was administratively resolved by reorganizing the California Coastal Zone Commission and through the Legislative passage of bills which changed part of the California Coastal Zone Management Program's policies and authority.
Other achievements included natural hazards mitigation guidance, wetlands management, agricultural lands preservation, improved coordination and cooperation between affected State and Federal
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agencies concerning consistency reviews and continued protection of coastal natural resources. The latter effort was promoted by the designation of the Elkhorn Slough and Tijuana River Estuarine Sanctuaries.
Between 1982 and 1983, the California program focused on guiding Local Coastal Program development and implementation and developing policy guidelines for the cumulative impacts of offshore oil development activities. The California Coastal Zone Commission was also instrumental in implementing a development permit monitoring and enforcement program. Other California Coastal Zone Management Program endeavors included activity in Federal consistency issues, especially those involving outer continental shelf oil and gas activities.
In 1982, the California Coastal Zone Commission sponsored an Ocean Studies Symposium to develop recommendations for improving the coastal zone. Recommendations included potential aquaculture facility siting; the establishment of a California Fishery Management Council; a marine mammal management program; the designation and acquisition of marine sanctuaries, wildlife refuges, and underwater parks; studies of offshore energy and mineral activities; marine transportation; marine pollution; and a statewide shoreline erosion mitigation plan. The Symposium report published became the subject of a State Resolution which was passed by the California legislature in 1983. The Resolution directed follow-up action on the report's recommendations in the 1984 legislative session.
3. Federal/State/Local Governmental Fiscal Allocations
In order to adequately assess the California Coastal Zone Management Program, it is necessary to examine the various governmental fiscal allocations afforded the program. Such an examination will aid in determining both program effectiveness and the future stability of the program.
The fiscal allocations given to the California Coastal Zone Management Program between fiscal years 1972 and 1983 are depicted in the following matrices (See next two pages).
Based upon the figures depicted, Section 305 Federal funding was at its highest levels during fiscal years 1976 and 1977. These amounts can be attributed to California's establishment of a coastal statutory base and the corresponding effort to develop Local Coastal Programs. Federal funding grants prior to fiscal year 1976 were used primarily for the development of a comprehensive, long-range coastal plan under the auspices of the California Coastal Conservation Act of 1972.
Federal funding under Section 306 of the Coastal Zone Management Act of 1972 was issued to California between fiscal years 1977 and 1982. Such allocations can be attributed to coastal program implementation efforts at both the state and local levels. Of particular interest are the monetary amounts granted in fiscal years 1978 and 1981. These allocations can be ascribed to the Federal approval of the California Coastal Zone Management Program in 1978
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California Federal Grant Support ($000;() = % of Federal Share)
FY' 74 FY1 75 FY176 TRANSQTR FY177 FY178
Section 305 $ 720(66) O o or $ 1,200(66) $1,029(80) $ 75(80)
Section 306 -- -- -- -- $ 121(80) $5,879(80)
Section 308 -- -- -- -- $ 212(80) $1,126(96)
Section 315 -- -- $ 29(50)
Section 305 Section 306 Section 308 Section 315
FY'79
$ 3,025(80) $ 1,093(94) $ 1,042(50)
FY' 80
$ 1,500(80) $ 5,300(98) $ 919(50)
FY'81
$ 5,500(80) $ 566(82) $ 602(50)
FY'82
$ 3,000(80) $ 647(73) $ 700(50)
FY'83
$ 450(50)
TOTAL
$ 3,924(70) $19,025(80) $ 8,944(93) $ 3,742(50)


California State/Local Grant Support ($000;() = % of State/Local Share)
FY'74 FY'75 FY'76 TRANSQTR FY'77 FY'78
Section 305 $ 360(34) $ 450(34) $ 600(34) .. $ 257(20) $ 19(20)
Section 306 -- -- -- -- $ 30(20) $ 1,470(20)
Section 308 -- -- -- -- $ 53(20) $ 42( 4)
Section 315 -- -- $ 29(50)
FY'79 FY180 FY '81 FY'82 FY'83 TOTAL
Section Section Section Section 305 306 308 315 $ 756(20) $ 67( 6) $ 1,042(50) $ 375(20) $ 120( 2) $ 919(50) $ 1,375(20) $ 126(18) $ 602(50) $ 750(20) $ 240(27) $ 700(50) $ 450(50) $ 1,686(30) $ 4,756(20) $ 648( 7) $ 3,742(50)


and a revision of the submission deadline for Local Coastal Programs from 1981 until 1983.
Grants allocated to California under Section 308 were most significant during fiscal years 1978 through 1980. This activity in the Coastal Energy Impact Program can be attributed to a national public-private sector effort to attain energy independence from the Organization of Petroleum Exporting Countries (OPEC). Also
noteworthy are the Federal funding percentages for these years, because they indicate the importance of coastal zone energy activities.
Coastal zone land-use planning efforts under Section 315 in California are twofold in nature. Utilized for the establishment of estuarine sanctuaries and island preservation, a significant portion of these grant allocations have been devoted towards establishing the Elkhorn Slough Estuarine Sanctuary and the Tijuana River Estuarine Sanctuary. Other funding has been devoted to studying potential
estuaries and islands for inclusion into the program.
The California Coastal Zone Management Program appears to be adequately funded by Federal and State sources to continue its implementation efforts under Section 306. Local implementation and its effectiveness in coastal zone management will be determined by local financial stability and Federal and State grants infusion. Although the six Regional Coastal Zone Commissions have been dissolved, the focal point of the California Coastal Zone Management Program, and its financial bursar of Federal and State grants, will continue to be the California Coastal Zone Commission. Provided that Federal funding under the Coastal Zone Management Act of 1972 is reauthorized in 1985, the California Coastal Zone Management Program should survive and flourish.
4. Coastal-Related Environmental/Land-Use Litigation
In order to further establish the effectiveness or ineffectiveness of the California Coastal Zone Management Program it is also necessary to review the State's judicial capabilities to interpret and enforce coastal-related statutes.
Because the Coastal Act of 1976 (and its predecessor the Coastal Conservation Act of 1972), the Coastal Conservancy Act of 1976 and the Urban and Coastal Park Bond Act of 1976 are the basis of the California Coastal Zone Management Program, only environmental or land-use cases which pertain to these four statutes will be reviewed.
A. Bel Mar Estates v. California Coastal Commission, 115 Cal. App. 3d 936 (1981).
Issue/Problem
Petitioner sought writ of mandate in matter involving a denial of a permit for a real estate development within the coastal zone. The Superior Court of Los Angeles County denied relief of Coastal Commission decision and petitioners appealed to Court of Appeal.
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Facts
1. Petitioners own large land parcel in Santa Monica mountains,
which overlooks the Pacific Coast Highway.
2. Petitioners seek to subdivide 531 acres of parcel into 174 single family residential lots, averaging 2.3 acres each, together with a 5 acre stable and pasture area and two open-space areas.
3. Petitioner's proposed plan involves construction of a new
four-lane highway in Piedra Gorda Canyon. Total construction efforts include filling the canyon from 30 to 90 feet, grading lots and construction of residential roads. Total grading efforts involve moving 3.6 million cubic yards of material.
4. Homesites, located on ridgetops, will restrict ocean view of
other Santa Monica mountain homesites. Ocean frontage homesites will also experience visual restrictions in an inverse manner.
5. Petitioners secured approval of proposed development from County of Los Angeles and application for permit was conditionally approved by the Regional Coastal Commission. Petitioner did not contest stipulated conditions.
6. On appeal to the California Coastal Commission the application
was denied.
7. In Court of Appeal, petitioners made three contentions: (a) that the California Coastal Commission lost jurisdiction to act on the appeal since more than 21 days had elapsed after the hearing before same commission; (b) the grounds on which the commission denied the application were in error; and (c) that the commission should not have denied the application entirely.
Judicial Decision
1. On petitioner's contention (a), the matter was timely for a
hearing before the commission on January 17, 1978. After oral
arguments, the commission chairman announced that the matter was continued until February 14, 1978, in order for the staff report on the application to be filed and serviced. No objection to this decision was made by any commission member or the petitioners, even though the continuance was for more than 21
days.
On February 9, 1978 petitioners sought, and were granted, a continuance in order to file additional data in support of the application. A second continuance under similar circumstances was also issued. The matter finally came before the commission on May 17, 1978.
Clearly, the commission chairman's decision was agreeable to commission members and the petitioners, the latter whom had legal counsel present on January 17, 1978. If petitioner desired
formal commission vote on the matter before 21 day period expired, it had only to ask for such a vote. A party cannot
remain idle and permit an action to be taken and later say that it had not consented. Court determines that petitioner's contention is a "frivolous afterthought."
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2.
On petitioners contention (b), that all the grounds given by the California Coastal Commission for denial of the application were erroneous, the Court of Appeals does not believe that all of those grounds require judicial discussion.
The Court of Appeals believes that the record is satiated with evidence that the proposed development would create a major increase in the traffic using the Pacific Coast Highway. Specifically, there would be a minimum of 174 private vehicles and probably 348 private vehicles based upon "second car theory," a required stoplight at the Pacific Coast Highway and development entrance, and a steady flow of secondary traffic. The record indicates that, without the proposed development, the Pacific Coast Highway is already overused.
The Court of Appeals also believes that the proposed development clearly entails a major change in the natural environment, removing natural vegetation, leveling hills and destroying a scenic canyon. That this effect falls under the purview of the provisions of Public Resources Code-Section 30251 is without dispute. Additionally, the same adverse effect of the proposed development falls within the stipulation of Public Resources Code-Section 30240 that natural habitat not be excessively damaged.
In summary, the Court of Appeals cannot say that the California Coastal Commission, and the Superior Court, erred in regarding the cumulative impact of this significant development.
3. On petitioner's contention (c), that since the statute
requires the California Coastal Commission to balance the environmental impact of a proposed development against the public need for additional housing, it was an error to deny the application in its entirety. Petitioners believe that the commission should have imposed conditions on the petitioner that would reduce the environmental impact without prohibiting any development at all.
The Court of Appeals sees the contention as without basis in fact. The Court knows of no requirement that the commission must undertake efforts to redesign a faulty proposal to make it become acceptable. The developer knows better than the commission what changes constitute economic feasibility. While the petitioner was afforded the opportunity for development proposal
modification, it chose to disregard this opportunity. The land parcel in question is not forever precluded from being
developed. All that is involved is a finding that the present development scheme is legally unacceptable.
Conclusion
Court of Appeal's decision was totally in favor of the California Coastal Commission, thus supporting actions initiated by this body under the California Coastal Act of 1976.
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B. Billings v. California Coastal Commission, 103 Cal. App. 3d 729 (198DT:----------------- ----------------------
Issue/Problem
California Coastal Commission and Central Coast Regional Commission appealed a judgement entered by the City and County of San Francisco Superior Court, which granted the property owners' petition for a peremptory writ of mandate. Granted in two proceedings, the Superior Court said that the petitioners had a vested right to exemption from the permit requirements of the California Coastal Act of 1976 and that the Coastal Commission's actions to deny the petitioners a permit for their minor subdivision was not supported by law. Superior Court's decision was to direct the Coastal Commission to issue the permit to the petitioners. California Coastal Commission appeals this decision to Court of Appeal.
Facts
1. As they pertain to the exemption proceeding:
a. In 1976, petitioner acquired 118 acres of land in San Mateo County, none of which is proximate to beach or ocean, rather, property in question is rural and approximately two to three miles inland.
b. In 1976, San Mateo County Planning Department approved a minor
land division which created three parcels of 25, 26 and 67 acres, from the aforementioned 118 acre parcel. A written permit was issued on December 30, 1976, subject to dedication of
right-of-way, submission of plans and profiles for access to the proposed building sites, submission of a geological report, and submission of a parcel map. Final approval was granted without material change in May 1977, after the four stipulated conditions were adequately completed. County authorities, in granting final permit approval, acknowledged final discretionary power being exercised.
c. On January 1 1977, the California Coastal Act of 1976 became effective. Public Resources Code-Section 30608 states, so far as pertinent to this case, "(a) No person who has obtained a vested right in a development prior to the effective date of this division..." The question presented is whether, by virtue of the county's tentative approval of the subdivision map on December 30, 1976, the petitioners acquired a vested right to subdivide their 118 acres.
2. As they pertain to the permit proceeding:
a. Property in question was of marginal agricultural quality. All of the owners (three after parcel subdivision) are persons devoid of any real estate developer title. In addition to the existing farmhouse and barn on 67 acre parcel, the owners wish to establish the same structural scenario on each of the other two smaller parcels. Owners have offered to execute binding covenants running with the land to guarantee that this will be


the limit to their structural development and no further subdivision will occur. Petitioners will not convert land to non-agricultural purposes, but will retain the maximum feasible amount of prime and non-prime land in agricultural use. A common farming plan has been developed which would cover costs, yield a moderate profit and keep as much of the land as feasible in productive agricultural use.
b. The major contentions on appeal pertain to interpretations of Public Resources Code-Sections 30250, 30241 and 30242.
Applicable excerpts are presented below.
1. Section 30250(a) states that, "New development, except as otherwise provided in this division, shall be located within, contiguous with, or in close proximity to, existing developed areas able to accommodate it or, where such areas are not able to accommodate it, in other areas with adequate public services and where it will not have significant adverse effects, either individually or cumulatively, on coastal resources. In addition, land divisions, other than leases for agricultural uses, outside existing developed areas shall be permitted only where 50 percent of the usaole parcels in the area have been developed and the
created parcels would be no smaller than the average size of
surrounding parcels."
2. Section 30241 states that, "The maximum amount of prime
agricultural land shall be maintained in agricultural production to assure the protection of the areas' agricultural economy, and conflicts shall be minimized between agricultural and urban land uses..."
3. Section 30242 states that, "All other lands suitable for
agricultural use shall not be converted to non-agricultural uses unless (1) continued or renewed agricultural use is not feasible, or (2) such conversion would preserve prime agricultural land or concentrate development consistent with Section 30250."
Judicial Decision
1. In regards to the exemption decision reached by the Superior
Court, this judicial body was required to exercise its judgement based upon the evidence presented (Strumsky v. San Diego County Employees Retirement Association). In reviewing the Commission's action on the exemption, the responsibility of the Court of Appeal is to determine whether the findings and conclusions of the Superior Court lack support in the record (Board of Education v. Jack M.). In this capacity, the Court of Appeal can overturn the decision only if the evidence received, to include the record of administrative proceeding, is legally insufficient to sustain the decision (Patterson v. Central Coast Regional Commission).
The doctrine of vested rights protects property owners from zoning changes or other land use regulations which occur before the completion of the owner's development project (Russian Hill Improvement Assocation v. Board of Permit Appeals). A vested right to finish a project arises only after the property owner
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has performed substantial work, incurred substantial liability and exhibited good faith reliance upon a governmental permit (Avco Community Developers Incorporated v. South Coast Regional Commission). The vested rights rule is neither a common law rule nor a constitutional principle, but a manifestatin of equitable estoppel (Raley v. California Tahoe Regional Planning Agency). "Where an owner of property, in good faith reliance upon a governmental representation that construction is fully approved, has suffered substantial detriment by proceeding with development, the government is estopped from prohibiting the project by a subsequent change in law. Where no such permit has been issued, it is difficult to conceive of any basis for such estoppel. Unless the owner possesses all the necessary permits, the mere expenditure of funds or commencement of construction does not vest any rights in the development."
"It may be true that although other cases speak of vested rights in terms of reliance upon a building permit... a building permit may no longer be sine qua non of a vested right... Under modern land development practices various governmental approvals are required before the issuance of a building permit, each approval pertaining to different aspects of the project, and... a vested right might arise before the issuance of a building permit if the preliminary permits approve a specific project and contain all final discretionary approvals required for completion of the project "(Patterson v. Central Coast Regional Commission).
The record in this case indicates no good faith reliance by the petitioners on the tentative permit issued on December 30, 1976. Prior to permit issuance the petitioners incurred a $520 expense for surveying; all other expenses pertaining to the minor subdivision were incurred after the January 1, 1977, effective date of the California Coastal Act of 1976.
The Superior Court also relied upon the "final discretionary approval test" to make a decision on the exemption (Youngblood v. Board of Supervisors). It concluded that final permit approval in May 1977 was strictly a ministerial act. The evidence in the case indicates that the four prescribed conditions had not been satisfied, and the use of this test is rejected in making a vested right determination. The criterion to determine that a vested right exists is final map approval (Oceanic v. North Central Coast Regional Commission).
The Court of Appeal concluded that the trial court erred as a matter of law in concluding that the petitioners had acquired a vested right to subdivide before the effective date of the California Coastal Act of 1976.
2. In regards to the permit decision reached by the Superior
Court, the judicial body's judgement was limited to the substantial evidence presented. The Court of Appeal's function is identical to that of the lower court, in that it reviews the administrative record to determine whether the Coastal
Commission's denial of the permit was supported by substantial evidence (Bixby v. Pierno).
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The Coastal Commission determined that the owner's proposed development would not be consistent with Public Resources Code-Sections 30241 and 30242, "which require that the maximum amount of prime and non-prime agricultural lands remain agriculturally productive." This finding is an inaccurate assessment of the meaning of these two sections. Section 30241 requires that only prime agricultural land be maintained in agricultural production.
Because only 10 to 15 percent of the petitioners' land is prime agricultural land, the appropriate provision is Section 30242, which provides that other lands suitable for agriculture will not be converted to non-agricultural use unless such conversion would concentrate development consistent with Section 30250. Since the petitioners' affidavits indicated that their land would be dedicated to agricultural use, there is no evidence of any land conversion to a non-agricultural use.
Section 30250, as quoted, requires that a new development not be located in a previously undeveloped area, unless there are adequate public services and the development "will not have significant adverse effects, either individually or cumulatively, on coastal resources."
In the opinion of the Court of Appeal, the Coastal Commission did not find that the petitioners' minor subdivision would have a significant adverse effect. As it pertained to Sections 30241, 30242 and 30250, the Commission's finding focused on its future adverse effect, as the proposed subdivision "would encourage similar division of large parcels and threaten the continued viability of the low intensive agricultural economy of the area." The Commission thus erroneously relied upon the precedential impact of the petitioners proposed minor subdivision and the difficulty of rejecting future requests for similar minor subdivisions. It should be noted that the Commission clearly has the authority to prohibit future development whose cumulative effect is both significant and adverse.
In summary, the evidence does not indicate a finding of a significant adverse effect. The addition of two residences and corresponding barns and an increase in water use arid additional traffic, while significant, is not adverse. The Commission's finding is not supported by the evidence and does not meet the statutory requirement.
In addressing the second requirement under Section 30250, namely, that land divisions shall be permitted only where 50 percent of the useable parcels in the area have been developed and "the created parcels would be no smaller than the average size of surrounding parcels."
The California Coastal Commission ascertained the "surrounding parcels" as those being within one-quarter mile of the petitioners' properties; thus, eight proximate parcels were considered. These eight parcels range in size from five to 750 acres, with the mean average being 286 acres. While the use of the one-quarter acre guideline may not be unreasonable, the Court
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