Coastal water management

[From the U.S. Government Printing Office, www.gpo.gov]

Coastal ne 0757
Information
Center
J AN' 1977

-COA
MSTAL WATER MANAGEMENT

PREPARED FOR THE OFF.ICE OF COASTAL ZONE- MANAGEMEN!),
NOAA

CONTRACT NQ 6-350329

THE TRAVERS'E GROUP INCORPORATED

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c.3 MAY 311 1977
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1977
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THE TRAVERSE GROUP

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0 COASTAL ZONE AND LAND USE
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OIZVELOPMENT ANALYSIS

COASTAL WATER MANAGEMENT

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Under Contract #6-35309

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May 31, 1977

TABLE OF CONTENTS

Page

PART ONE: INTRODUCTION . . . . . . . . . . . . . . . . . . . 1

CHAPTER ONE . . . . . . . . . . . . . . . . . . . . . . 2

PART TWO: AUTHORITY TO MANAGE COASTAL WATERS . . . . . . . . 20

CHAPTER TWO: State Authority to Manage
Coastal Waters . . . . . . . . . . . 21

CHAPTER THREE: Federal Laws and Agencies Related to
Coastal Waters . . . . . . . . . . . 51

PART THREE: COASTAL WATER USES AND ACTIVITIES . . ... . . . 81

CHAPTER FOUR: Ocean Dumping. . . . * . . . . . . . . 84

",.-CHAPTER FIVE: Fisheries Management . . . . . . . . . 109.

---CHAPTER SIX: National:-.Defense . . . . . . . . . . . 140

CHAPTER SEVEN: Deepwater Ports . . . . . . . . . . . . 163

@_CHAPTER EIGHT: Tanker Safety . . . . . . . . . . . . . 177

CHAPTER NINE: Liquefied Natural Gas . . . . . . . . . 189

CHAPTER TEN: OCS Oil and Gas Development. 202

PART FOUR: PLANNING AND MANAGEMENT CONCEPTS FOR COASTAL
WATERS . . . . . . . . . . . . . . . . . . . . . 231

CHAPTER ELEVEN: Comprehensive Coastal Water
Management . . . . . . . . . . . . . 232

CHAPTER TWELVE: State Management Approaches . . . . . . 261

PART ONE

CHAPTER ONE: INTRODUCTION

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CHAPTER ONE

INTRODUCTION

Scope of Report

Uses of the nation's coastal waters are increasing at a

rapid pace. The acceleration of offshore oil development,

proposals for deepwater ports, plans for floating power plants,

increased emphasis on fisheries management have all served

to highlight the importance of coastal wat ers. Current and

potential conflicts over use of coastal waters are also

developing at a comparable rate.

The Coastal Zone Management Act was created to deal with

the complex questions of allocation and protection of coastal

resources. Many states have or are now developing management

programs for coastal lands and for estuarine and nearshore

waters. But in many instances little emphasis has been places

upon the water areas of the territorial sea and the adjacent

ocean waters. The basic premise of this report is that most

states have given considerable attention to shore and nearshore

areas, but that in implementing approved Sec. 306 programs,

the complexities and opportunities of the broader coastal

territorial sea must be given more attention. An attempt is

made here to introduce the concept of comprehensive coastal

water planning and management as part of a more general coastal

zone management system. Little consideration is given here to

estuarine or coastal land planning or management, although they

are at present of primary consideration to many coastal states.

Rather, the offshore, water issues are stressed in an effort

to encourage increased consideration of how these management

issues can be ihcorporated within the framework of the Coastal

Zone Management Act of 1972.

Definitions

"Coastal waters" is defined in the Coastal Zone Mangement

Act (CZMA) as:

1. In the Great Lakes area, waters within the territorial

jurisdiction of the United States, consisting of the

Great Lakes, their connecting waters, harbors, road-

steads, and estuary-type areas such as bays, shallows,

and marshes.

2. In other areas, 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. (Sec. 304(b))

Section 304 (h) defines "water use" as including:

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 stan-

dards, criteria, or regulations which are incorporated

in any program as required by the provisions of Section 307(f).

However, for the purposes of this report, 11coastal waters"

and "coastal water use" will be defined both more generally

and more narrowly. The focus of this document will be upon

the human use of the territorial sea, including the Great

Lakes, and upon human activities taking place in the oceans

beyond, to the degree that they may affect coastal waters. A

first definition, used in this report, is:

"Coastal waters" will include the submerged lands, the

water column, the surface waters, and to some degree,

the air above the territorial waters of the United

States. Except in the Gulf of Mexico, this will be

limited to a three-mile wide band of water.

The Concept of Comprehensive Coastal Water Use Management

As used in this report, comprehensive coastal water use

planning and mangement refers to the concept of integrating

a growing number of human activities within a water activity

arena that has certain natural limitations and inherent values

that must be recognized and protected. There are three primary

goals, each of which is similar to those of the more general

field of coastal zone management.

1. Conflict Resolution. With increased use of the sub-

merged lands, water column, and surface waters of the coastal

zone, more attention must be given to designing activity

patterns in such a way.as to minimize disruptions or conflicts

among users. For coastal states, this may include a need to

resolve conflicts between local, state, or federal government;

to consider domestic versus international interests in the

use of coastal waters; to improve coordination between state

and federal programs, and to sort out physically the growing

number of uses of submerged lands, coastal waters, and the

air above. The issues are complex as.are emerging conflicts

between coastal and ocean water uses, between land and water

uses, and between air and water uses.

However, conflict resolution is not the same as compre-

hensive resource planning and management, although in some

instances conflict resolution has been made the sole objective

of a management effort. It is suggested that while conflict

resolution is an essential and difficult part of coastal water

planning and management, it also is more of a means to a more

comprehensive objective, rather than the primary reason for

coastal management.

2. Increased Coastal Water Use. As reflected in the

language of the Coastal Zone Mangement Act and other legisla-

tion, such as the Outer Continental Shelf Lands Act, there is

a national interest in expanding the use of coastal waters, and

of the oceans beyond. Any increased use is likely to generate

further conflicts and intensify pressures upon the natural

systems of the coastal zone. However, it is not clear that

we have yet developed the capacity to sustain present levels

and types of use while also sustaining a viable natural ocean

system. In addition, the United States has an expanding popu-

lation with a need for recreation, food, transportation, national

- 7 -

defense, and employment. Our economic system tends to treat

the coastal waters as potential "resources" to be extracted

and processed for human benefit. Consequently, under the

explicit directions of Congress, to the degree that expanded

use can be achieved without disrupting necessary current

patterns of use, or destroying the marine environment, such

expansion must be attempted. This suggests the need for

positive action to seek out methods of accomodating activities

rather than simply reacting to potential adverse impacts once

a project is proposed.

3. Protect and Enhance the marine Environment. Histori-

cally, coastal waters have been viewed as an aquatic setting

for human activities and as a source of potential "resources"

for human use. Also, coastal waters have historically been

treated as a vast dumping ground into which virtually every

type of human waste, including the most toxic and explosive

substances, have been deposited. Fish have been harvested

as if they existed in infinite numbers. The marine system

generally has been treated as if it was not an interconnected

whole, fragile, limited, and of immense importance not only at

the local level but also in terms of global air quality, food

supplies, and weather and climatic patterns.

Species of plants, mammals, birds, and fish have been

diminished or eliminated. Critical breeding grounds, nursery

areas, or food webs have been damaged, contaminated, or lost.

Frequently, any addition in human use of coastal waters places

7a -

increased pressures upon the marine environment. The system

has limits. If the coastal waters are to continue to support

finfish and shellfish, if they are to provide recreational

opportunities, if their capacity to support a wide variety of

activities is to be protected, then human activities must be

limited, modified, and in some instances prohibited so as to

fit within the constraints of the finite capacities of natural

systems. If these capacities are more precisely understood,

then expanded use is more likely. And if the natural system

is maintained at a high quality level, the maximum number of

human uses can occur. The consequences of not treating natural

capacities as constraints to human use of coastal waters are

not clear. But they may include adverse shifts in weather and

climate patterns, loss of food supplies and of food production

capability, deterioration of adjacent land values, loss of

major recreational opportunities, and a considerable diminuation

of the economic potential of these resources.

In focusing upon planning and management of the coastal

waters there is a danger of suggesting an artificial separation

of land, air, and water planning which would violate the principal

integrative concepts of the Coastal Zone Management Act.

Clearly, coastal water use planning and mangement must be inte-

grated within a comprehensive coastal zone management program.

However, as this report attempts to illustrate, the present

network of public laws and human activities associated with

the coastal waters of the United States is very complex, not

clearly defined, and will require considerable attention if

state coordination of coastal uses is to be successful.

The Importance of Coastal Waters

There are several reasons why coastal states might benefit

from greater consideration of coastal water use management.

1. Growth of Offshore Activities. The Commission on

Marine Science Engineering and Resources provided a good descrip-

tion of the expanding use of coastal and ocean resources in its

report, Our Nation and the Sea. As the Commission stressed,

"problems of multiple uses of the coastal zone are moving sea-

ward." (P. 52) Accelerated OCS lease sales, growing interest

in storage of wastes in sub-surface areas, the possibility of

offshore geothermal energy sources, new national interest in

fisheries management, increased liquefied natural gas shipments,

floating-power plants, deepwater ports, and many other activities

indicate that utilization of coastal waters and the ocean beyond

will expand with or without a comprehensive management system.

If the resource base is to be protected from unwise use, if

conflicts are to be minimized, and if priority uses are to be

accomodated, a planning and management system will be a necessity.

2. Impacts of Water Use upon Land Use. In many instances

decisions regarding OCS or coastal water activities may be the

determining factor in what the coastal zone is or can be. As

use of coastal and ocean waters intensifies, so will the requests

for various types of shore access. This includes not only a

new demand for harbor and port facilities, marinas, boat

ramps, parking lots and beaches, but also suggests an unpre-

cedented demand for heliports, tank farms, landfall sites for

pipelines, LNG storage facilities, fish processing plants,

military bases, and transportation systems. Growth and change

within coastal communities may seem "inevitable" and beyond

public control unless the water-based pressures generating

such growth and change are identified and managed.

3. Requirements of the Coastal Zone Mangement Act. The

Act requires that approved coastal management programs be

able to regulate activities that may have a direct or signifi-

cant impaoct upon coastal waters. Priorities for coastal land

and water uses are to be identified along with permissible

uses. Thus, it is assumed that coastal states will at some

point have a planning and management logic for determining

which activities should be permitted, which should be prohibited,

and which should be given priority of access to the coastal

waters of the state. Unless a comprehensive approach to coastal

water activities and their relationship to ocean and shore issues

is'undertaken, it may be increasingly.difficult to have any

basis for determining priorities, or for knowing what should

and should not occur within the coastal zone.

4. Coastal Waters as a Unique, High Value State Resource.

Coastal states and their local communities are well aware of

the economic, social, environmental, and aesthetic values

derived from their coastal waters. The Coastal Zone Management

- 10 -

Act provides a jurisdictional framework and financial assis-

tance to develop a long-range comprehensive planning and

management system for this resource. Given the complexity

and expense of such an undertaking, most states would not

attempt anything approaching a comprehensive planning and

management effort for their coastal waters without the assis-

tance of the Act. It is an unusual opportunity at a parti-

cularly important time in the history of coastal and ocean

development. Hopefully this discussion will assist states

and others in taking full advantage of it.

5. "Consistency" Review of Federal Activities. Under the

provisions of Section 307 of the Coastal Zone Management Act of

1972, coastal states with an approved management program can to

some degree protect the integrity of their program through

consistency review of activities sponsored or approved by

federal agencies. As discussed in Chapter Eleven, this is a

key feature of the Coastal Zone Management Act; and under the

current ambiguous distribution of management authority over

coastal @aters, it is also a deciding factor in the degree of

state ability to manage coastal water activities. Just what

11consistency" means is sometbing that will evolve over time,

and final rules and regulations for Section 307 have not yet

been formulated. However, there is an initial indication that

some federal agencies may provide coastal states with informa-

tion for consistency review on a very controlled basis, limited

to the specific items articulated within the state's approved

coastal zone management plan (CZMP). Even if this does not

occur, it seems clearly advantagous for coastal states to

include as detailed and comprehensive a statement of their goals,

priorities, and concerns as possible. Because of concern about

land and nearshore problems, some states may have overlooked

the long@ranqe implications of not developing a detailed pro-

gram for the rest of the territorial sea. It is in deep-water

areas where the federal interest is more traditional, the

distribution of authority most unclear, and the likelihood

for dispute over the right of a state to review or object to

a federal action strongest.

s2ecial Problems of Coastal Water Use Planning and Management

1. SpecialSensitivities of Coastal Waters. Because of

their physical and chemical properties, coastal waters can

transmit impacts rapidly for great distances. Because coastal

waters also contain a series of interconnected biologic systems

that are often quite sensitive to environmental variation,

any change induced by human use has a potential for damage.

For the most part coastal waters have proven to be remarkably

resilient to human modifications. But complex webs of current

patterns, thermal regimes, nutrient cycles, and species inter-

actions are not immune to impact. Management programs should

recognize that coastal waters are biologically and chemically

far more reactive than coastal lands.

2. Size of the System to be Managed. It can be both

technically difficult and financially expensive to inventory,

monitor, and regulate use of coastal lands. However, the

submerged lands, water column, and surface waters of the

territorial sea represent an entirely new level of planning

and management challenge, as the size and complexity of

coastal waters are usually several times larger than the land

elements of a coastal zone. Just knowing what is happening

can be a major challenge. Complex computer control systems

for surface vessel traffic may soon be established in major

port areas by the U.S. Coast Guard. The Navy already has

radar/communications/computer/administrative networks of great

complexity and sophistication to manage its coastal and ocean

operations. Most states will find it useful, if not necessary,

to obtain assistance from federal agencies, universities, and

private industry if they are to collect and utilize the amount

and type of information which comprehensive coastal water

management may eventually require. In addition, enforcement

of coastal water management policies and regulations over the

broad expanse of submerged lands and water may require a new

type of law enforcement organization and expenditure, for both

local and state government. Again, interfacing with the U.S.

Coast Guard and other federal agencies may be essential.

3. Established Patterns of Use. Complex patterns of

coastal water use already exist as a result of historic devel-

opment, implied dedication, crown gifts, state leases, or

13 -

prior management decisions. The coastal waters are not

Ilempty space" but, in fact, a crowded mixture of interacting

natural systems and human claims to present or future patterns

of use.

Many coastal water areas are informally allocated for

fishing activities, based upon the port from which fishing

occurs. These aquatic territories have often been quite

strictly enforced, by fishermen, and new public comprehensive

management systems must acknowledge the existence of such

patterns of use and somehow deal with them. Similarly, the

submerged lands often contain polluted sediment, canisters of

hazardous materials, or large amounts of solid waste resulting

from previous coastal water activities. Present and past water

uses have established prior claims that require management

consideration in any new allocation. In addition they have

often modified the coastal environment in ways that may repre-

sent major management problems or opportunities.

4. Special Legal Considerations. In sharp contrast with

coastal lands, there is very little private ownership of coastal

waters, especially beyond the nearshore or littoral area. How-

ever, there are leases, grants, licenses, and riparianpatterns

of use which if not always having the full force of proprietary

rights, can nonetheless exert an influence over who can do what

in coastal waters. There is an extensive body of special mari-

time law that applies to most coastal water areas and activities.

This adds an altogether new complexity as well as a predetermined

set of decision rules to coastal water management that will not

be found on land (see Chapter Two for further description).

Coastal managers must be aware of this special law if they

hope to successfully implement a coastal water management program.

There are several international treaties, accords, and

agreements which either now influence or may in the future

affect the control or use of coastal waters. While state owner-

ship of the submerged lands beneath coastal waters may be

widely recognized,the ability of the coastal state to control

surface use of coastal waters is constrained by federal and

international concepts of navigational servitude. The principle

of allowing innocent passage of foreign ships within territorial

waters is but one of these concepts. Pending revisions of

international maritime law may add further complications that

state coastal programs must consider.

S. Special Significance of Management Decisions. It is

difficult to fully appreciate the importance of coastal waters

and of the management decisions made for them. To some extent

coastal land use decisions made at the community or state

level will primarily effect local and state interests, although

there are obvious and important exceptions to this observation.

On the other hand, coastal water decisions are almost always

connected economically, militarily, biologically, and chemically

to the waters of adjacent states and to the federal and inter-

national waters and submerged lands beyond. Coastal waters

are the interface between local and international concerns;

15 -

between state and federal jurisdiction, between domestic and

international law.

. World as well as regional and local climate and
weather systems are influenced by coastal and ocean
waters. Tides, currents, thermal regimes, and the
carbon dioxide absorptive capacity of the atmosphere
are involved. Coastal and ocean production of oxygen
is of global significance, and it takes place at the
sensitive and easily polluted water/air interface.
Thermal modification of coastal waters, either deli-
berately or as a secondary consequence of use, may
have major impact far beyond the limits of states'
coastal waters.

. Coastal and adjacent ocean waters serve as a vital
national and international transportation medium, the
disruption of which could have serious consequences.

. Coastal waters are a major national and international
source of food, and the importance of this may well
increase.

. Coastal waters may increasingly serve as a direct
source of energy (waves, tides, temperature gradients).
Hydrocarbons and possibly significant amoungs of
methane or geothermal energy are or may be contained
beneath coastal waters. Energy-related storage, pro-
duction, and transportation systems use and often are
dependent upon a coastal water location.

Coastal waters are a Vital'part of national defense,
and coastal water use management decisions could have
major national security implications.

6. The Federal Presence. This may be the single most

complex and important part of coastal water use management

for state program managers. One of the most prominent char-

acteristics of coastal waters is the degree to which they are

associated with federal programs, authorties, and agencies.

These federal interests in some instances represent an exclusive

right over some aspect of coastal water use. In all instances,

- 16 -

careful consideration should be given to what the national

interest might be in a coastal water use decision, and which

federal agencies or authorities might be involved.

The Federal Water Pollution Control Act amendments of

i972 represent one good example of this. This legislation

establishes as national policy the elimination of pollution

discharge into coastal (and other) waters by 1985. This could

produce an immense impact upon what coastal water uses can

or should occur; where they should be located; and how they

should be designed and undertaken. The FWPCA also deals with

aquaculture, dredge spoil disposal, vessel discharge, and oil

spills. This and other federal legislation establish a network

of standards, processes, and authorities that is as important

a part of coastal water use planning and management as the

complex interconnected bio-geo-chemical and energy systems of

the marine environment.

Conclusions

It has been suggested that comprehensive coastal water

management is too complex; that the task is too great; or that

it is unrealistic to expect a state to attempt, much less

implement, so difficult, large, and expensive a program.

At the present time it is probably true that no state
could create and implement a total coastal water use management

system. And at the present time, it is not clear that there is

a need for such a system. But use is increasing. Pressures

upon the natural capacilities of the marine environment are

having visible effect. And the Coastal Zone Management Act

recognizes that someone must take a long-range look at this

essential national resource, and assume responsibility for its

continued vitality and utility.

The actual cost, in terms of time, energy, money, people,

and equipment, to affect such planning and management may be

far beyond what has been presently estimated by Congress, as

reflected in the provisions and funding of the Coastal Zone

Management Act. Expanded use will require more management,

and more coordination between local, state, and federal inter-

ests. Such coordination and management costs money, and the

amount will increase as does our need to use and protect

these resources.

While this is a major problem that will require further

consideration, states should realize the degree to which the

present web of federal agencies and laws represent a coastal

water management resource. It would be naive to suggest that

every federal agency is presently willing or able to provide all

of the assistance a state may seek. The management of state

resources is primarily a state responsibility and will undoubtedly

remain so as.long as states wish to retain management control.

However, federal use of coastal and ocean resources do impart

costs upon state and local government. The Coastal Energy

Impact Program (CEIP) of the Coastal Zone Management Act is

one attempt to deal with this problem.

More importantly, each federal agency having an interest

in or responsibility for coastal water use also has information

and experience. The Coast Guard has techniques, equipment,

experience, and a manda e t-n Pnforn-e-e-oas In-Finns. The

EnvironmentAaJ_Px_otgction Agency conducts or sponsors extensive

research on'the impacts of various activities and substances

upon coastal waters. Other agencies have maps, computer pro-

grams, publications, photographs, and related forms of informa-

tion and equipment. Some of this will not be available to

states. Some will need updating or modification. Some will

just not be useful, but much will. Cooperative efforts in

areas of mutual concern are not only possible, but crucial.

The importance of establishing a comprehensive coastal

water management program as part of a state's total zone
management program is far greater than many state's may have yet

perceived. The difficulties in achieving a comprehensive

coastal water use management capability are, to say the least,

considerable. But the Coastal Zone Management Act provides

the states with several tools. It provides national reco i-

tion of the state as the appropriate management coordin

for federal cooperation and assistance. It recognizes the

r ty that will impact

the coastal waters, and to consider how and if those activities

might affect the coastal water use management plan.

Comprehensive coastal water use management, as well as a

national ocean policy, are things of the future . . . but of

the near future. No state has yet attempted a comprehensive,

water management program. Yet for many river basins, as well

as for bays, sounds, and nearshore waters, such a comprehensive

approach has started, and some would say has been achieved.

Every coastal state has some coastal water use regulations,

such as for submerged lands leasing or fisheries management.

These can be expanded, modified, and integrated into more

comprehensive management systems, as the need arises. New

federal laws, if they are written so as to directly acknowledge

the approved state coastal man agement program, could specify

a coordinated state/federal effort when new program inventories

are made or new standards established.

As should be clear from a reading of the material in this

report, changes in laws and funding may be necessary. New
ideas and n@w information will be needed. However, even now

a creative use of the Coastal Zone Management Act, along with

the other local, state and federal programs, should allow the

establishment of a basic integrative management program that

can protect, enhance, and allocate the submerged lands, water

column, and surface waters of the coastal zone, as part of an

overall state resource management effort. It is hoped that

this initial consideration of that concept will further such

attempts.

PART TWO

AUTHORITY TO MANAGE COATAL WATERS

CHAPTER TWO: STATE AUTHORITY TO MANAGE
COATAL WATERS

CHAPTER THREE: FEDERAL LAWS AND AGENCIES
RELATED TO COASTAL WATERS

- 21 -

CHAPTER TWO

STATE AUTHORITY TO MANAGE COASTAL WATERS

The Coastal Zone Management Act of 1972 provides a mech-

anism for the establishment of state programs to protect and

develop coastal waters. However, it is not always clear what

actual powers of management or control the various coastal

states have over specific coastal water activities and

resources. As the planning and management of these resources

becomes a matter of increasing concern, the issue of juris-

diction will become a crucial factor.

This chapter attempts to provide the state coastal manager

with some initial guidance to present legislative and judicial

determinations of state powers to control coastal water use.

This is not a technical legal guide, but a management-oriented

discussion of basic state and federal sources of authority. It

will be necessary to consult with professional legal counsel on

any specific point of law. Paxt Tw o continues the disucssion

of jurisdiction into specific activities, and should be read

in conjunction with this chapter.

The Coastal Zone Management Act of 1972, in Section 302(h)

states that 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 . . . " (emphasis added)

Since this "full authority" is not delineated in the Act, it

must be surmised from other legislation as well as court

decisions. The political, legislative, and judicial history

of national coastal water policy indicates that the distribution

of authority is fluid and evolving.

However, there are some relatively explicit allocations of

authority which provide tentative guidance for state program

implementation. The first section of this chapter traces the

judicial and legislative history of coastal management leading

up to the passage of the Submerged Lands Act and Outer Contin-'

ental Shelf Lands Act. Section Two discusses certain consti-

tutional and congressional provisions which limit or further

define the nature of state authority over coastal waters.

Chapter Three describes specific acts and federal agencies

that relate to coastal water use management.

PART ONE: HISTORY OF DEVELOPMENT OF STATE AND FEDERAL
AUTHORITY_

As technology, national policy, and economic factors

stimulated greater interest in the use of the resources of

the nation'.s territorial seas and submerged lands, there

emerged a growing and continuing dispute over what powers

the coastal states should or do have to regulate or control

these resources and their use.

Until the 1920's there were few major disagreements over

whether or not states could regulate coastal waters. In part

24 -

this followed from a limited technical and economic ability to

utilize coastal water resources, especially oil and gas

deposits in submerged lands. There also appears to have been

a general acceptance on the part of both federal and state

government that states had a basic authority to regulate
coastal water resources.1

But in the late 1920's offshore extraction of oil and

gas became feasible, and by the mid-1930's there was a growing

concern by both state and federal authority as to who might
have jurisdiction over the submerged lands.2 Of significance

is that much of the dispute that followed, and most of the

key legislation, related to submerged lands rather than surface

waters or the water column. The control of oil and gas deposits

and of the billions of dollars of revenue involved in such

control has been the focus of many of the disputes over state

versus federal rights, and was a primary topic of several major

U.S. Supreme Court decisions to be discussed in following sections.

This historic emphasis upon oil and gas production helps to

explain some of the provisions of legislation such as the Outer

Continental Shelf Lands Act and the Submerged Lands Act, and

also suggests that authority over surface waters and the water

column may require further clarification.

By the mid-1940's the federal government was making a

strong claim to paramount control over all coastal resources,

rejecting any state claim to ownership or jurisdiction. This

was reflected in the Truman Proclamation of September 28, 1945

25 -

which.claimed exclusive U.S. jurisdiction over the natural

resources of the continental shelf, and in a series of federal

challenges to state control of submerged lands in the U.S.

Supreme Court.

In three landmark decisions (U.S. v. California, 1947,

332 U.S. 19; U.S. v. Texas, 1950, 339 U.S. 707; U.S. v.

Louisiana, 1950, 339 U.S. 699) the U.S. Supreme Court held

that the federal government, rather than the states, had para-

mount rights in the submerged lands and natural resources of

the territorial seas,of the United States.

The United States of America is now, and has
been at all times pertinent hereto, possessed
of paramount rights in, and full dominion and
power overf the lands, minerals, and other
things underlying the Pacific Ocean lying sea-
ward of the ordinary low-water mark on the
coast of California, and outside of the in-
land waters, extending seaward three nautical
miles . . . . The state of California has no
title thereto or 12roperty interest therein.3
(emphasis added)

The reaction of several coastal states was to see this as

a denial of their basic constitutional rights, a "power-grab"

by the federal government. Louisiana, Texas, and California

were primarily concerned about control over oil revenues. But

several other coastal states saw non-oil related issues involved

in this declaration of total federal jurisdiction. Robert Moses

of New.York State expressed concern over the future control of

Jones Beach and other projects that had been claimed from the

sea. New England fishing interests saw this as a threat to

their industry, and Great Lakes representatives joined in a

- 26 -

strong expression of concern over state's rights.4

The question of coastal jurisdiction became a major national

political issue. It was the topic of 15 congressional hearings,

was in part responsible for the resignation of Harld Ickes as

Secretary of Interior, and was a major topic of debate in the

1952 presidential campaign, during whith Dwight Eisenhower

promised to support state control of submerged lands.

In 1953, newly-elected President Eisenhower signed into

law the Submerged Lands Act of 1953 and the Outer Continental

Shelf Act of 1953. As discussed in more detail below, these

acts gave primary control over the submerged lands of coastal

waters to the states, and to submerged lands beyond the terri-

torial sea to the federal government.

But the debate over jurisdiction was not silenced by the

passage of these laws. In the late 19601s, a continued disagree-

ment between several coastal states and the federal government

led to another major Supreme Court case which was finally decided

in favor of the federal government in 1974.

The United States v. Maine case was precipitated by a

lease of submerged-lands for oil and gas development by the

state of Maine. The federal government sought to get a final

definite articulation by the Supreme Court of who had jurisdic-

tion over the seabed and natural resources beyond the territor-

ial or coastal sea. It raised the issue not only against Maine,

but also against New Hampshire, Massachusetts, Rhode Island,

New Jersey, Delaware, Maryland, Virginia, North Carolina, South

Carolina, Georgia, and Florida.. In a report prepared by a
court-appointed Special Mastet_@ it was determined that:

The Truman Proclamation of 1945 for the first time
claimed for the United States jurisdiction and control
over the natural resources of the subsoil and seabed
of the continental shelf beyond the three-mile limit
of the territorial sea off the coasts-of the United
States. The Proclamation initiated a new rule of
international law in this regard.

. This claim was validly made by and on behalf of the
United States under its powers of external sovereignty
and did not in#ure to the individual benefit of any of
the Atlantic coastal states.

By the Submerged Lands Act of May 22, 1953, 67 Stat.
29, the United States confirmed to and vested in the
defendent states the seabed and the resources of the
territorial sea within three geographical miles of their
respective coastlines (Florida and Texas granted juris-
diction out to three marine leagues, based on historic
boundaries).

. Under the Truman Proclamation, the Outer Continental
Shelf Lands Act of 1953, and the Convention on the
Continental Shelf of 1964, the United States has the
right, as against the defendent states, to the resources
of the seabed and subsoil of the continental shelf
beyond the three mile limit of territorial sea off the
Atlantic coast.

While some coastal states have indicated a strong disagree-

ment with both this finding and the earlier findings of the

late 1940's and early 1950's, it can be taken as the law of

the land that state jurisdiction over ocean resources is

restricted primarily to the territorial sea of the coastal

zone.

In future coastal water use disputes the ability or lack

of it to intercede in decisions related to coastal water use

beyond the present territorial boundaries may determine the

effectiveness of a state management program.

The scope of the Coastal Zone Management Act is limited

specifically "seaward to the outer limit of the United States
territorial sea."6 The federal government recently declared

partial jurisdiction over ocean resources out to a distance of

200 miles for the purpose of fishery management. If a full

extension of the territorial boundary should occur, the

question may arise as to whether that also extends the current

limit of the Coastal Zone Management Act.

However, the Office of Coastal Zone Management has made

an explicit ruling over the scope of the Act. In an OCZM

Threshold Paper related to boundaries, waters beyond the pre-

sent three-mile (or three leagues in the Gulf of Mexico)

territorial limit must not be included in an approved state

coastal management program.

Waters beyond the three-mile territorial sea.

Irrespective of any extended seaward jurisdiction
which may be enacted by law or agreed to under
international convention, states may not include
waters beyond the territorial sea, in the 57b-sence
of specific legislation.7 (emphagis added)

Submerged Lands Act of 1953 8

The basic federal recognition and specification of state

authority to regulate coastal water use is contained in the

Submerged Lands Act. This allocation of jurisdictional

authority emerged from a 30-year federal-state c6nflic described

- 29

in Section One of this chapter.

The stated purpose of this Act is:

To confirm and establish the titles of the states
to lands beneath navigable waters within state
boundaries and to the natural resources within
such lands and waters, to provide for the use and
control of saiE -lands and resources, and to con-
firm the jurisdiction and control of the United
States over the natural resources of the seabed
of the continental shelf seaward of state boundaries'.
(emphasis added)

The Act indicates a broad definition of natural resources,

and on its face, would seem to include virtually all living

and non-living resources on or beneath the ocean floor or

within the water column.

Section 2(e). The term "natural resources" includes
without limiting the generality thereof, oil, gas,
and all other minerals, and fish, shrimp, oystersi
clams, crabs, lobsters, sponges, kelp, and other
marine animal and plant life, but does not include
w4@e t@
@ro w @er , @or t @he u @se o @fw a@ r f o @ @j
@@@r@qd
.4c
u_@t -i o n
of power.
- _a @

The significance of the last provision, which clearly reserves

the use of waters for power production to the federal govern-

ment, may increase in the near future. Both France and England

are giving serious consideration to either tidal power produc-

tion or to the use of wave energy for the production of elec-
tricity. Similar proposals'have been made in the United

States. While the Coastal Zone Management Act indicates a

congressional intention to have the coastal states be the

prime coastal water managers, this provision of the Submerged

Lands Act may affect their ability to regulate water-based

30 -

power production projects.

SLA Limitations upon State Authority

The Submerged Lands Act specifically excludes several

areas of authority from state control.

Section 3(d): "Nothing in this Act shall affect the
use, develoFme-nt, improvement, or control by or under
the constitutional authority of the United States of
said lands and waters for the purposes of navigation
or flood control or the production of power
(emphasis added)

. Section 6(a): "The United States retains all its
naH@ti@qnal@servitude and rights in and powers of said
lands and navigable waters for the constitutional pur-
poses of commerce, navigation, national defense and
international affairs . . . . " (emphasis adde-d-T-

Section 6(b): "In time of war or when necessary for
national defense, and the Congress or the President
shall so prescribe, the United States shall have the
right of first refusal to purchase at the prevailing
market price, all or any portion of the said natural
resources, or to acquire and use any portion of said
lands by proce=ding in accordance ;7ithdue process of
law and paying just compensation therefore. (emphasis
added)

The extent to which the above exclusions diminish the

power of the states to manage coastal water activities is not

clear. In each instance it is a question of the facts of the

case, of state and federal assertions, of political forces,

and of judicial interpretation. In the next section several

federal constitutionally-derived powers will be discussed to

indicate that words such as "commerce," "navigation," "national

defense," or "international affairs" can relate to virtually

every aspect of coastal water management.

SECTION TWO: AUTHORITIES AS ALLOCATED IN THE U.S. CONSTITUTION

Review of Basic State Powers

The state has two basic sources of power over coastal

waters. One derives from o4ogj; h@ (to the degree that the

Submerged Lands Act or other laws acknoWledge state ownership)--.

and secondly, as sovereign protector of the health, safety, and

welfare of the citizens of the state. In principle these

11p9Ji.c.e__ppwers" are reserved by the states unless specifically

granted to the federal government (see 10th amendment of

Constitution)

Three basic rules influence the degree to which a state

may be able to regulate coastal waters through its police

powers. The Supreme Court has held that:

1. Any state regulation must have a legitimate public
purpose, that it is necessary to protect the health,
safety, or general welfare of its citizen.

2.. Given a legitimate public purpose, the specific
regulation in question must be directly related to
that purpose.

3. If the regulation results in a "taking" of property,
but is otherwise necessary and reasonable, there
must be "just compensation" to the property owner.

In general it is held that the state must be "reasonable" and

must not be arbitrary" or "capricious." This has translated

in recent years into a need for a formal process of decision-

making, public input, and provision for appeal of a regulation.

But there are several areas in which the state has been found

- 32 -

by the Supreme Court to either by totally excluded or to have

definite limitations upon its use of polic powers.

It appears that the intent of Congress in formulating the

Coastal Zone Management Act was not to alter the existent

distribution of coastal juristiction between federal and state

sources. In Section 307(e) an important and explicit statement

regarding this issue is made.

Section 307(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

The Act is even more explicit in the following subsection, where

it is stated that:

Section 307(e) (Nothing in this title shall be construed)
(2) as s@uperceding, modifying, or repealing existing laws
applicable to the various federal agencies

The Submerged Lands Act of 1953 and the Outer Continental

Shelf Lands Act of 1953 appear to provide a clear delineation

of authority over coastal submerged lands with state control

specified out to the three-mile boundary (or three leagues in

Gulf Coast) and federal control beyond. However, even that

division is not absolute. When considering the living resources

within the water column or non-extractive uses of surface or

sub-surface waters, there tends to be a strong judicial and

legislative recognition of federal interest, if not paramount

control, even within the territorial sea. While Congress has

- 33 -

made it clear that the Coastal Zone Management Act of 1972 is

intended to allow the states to serve as primary managers of

coastal waters, Congress has also made clear that the Act

does not diminish existent federal power or authority. Much

of the basis for that federal authority is either implicity or

explicit in the Constitution.

The Supremacy Clause (Article VI, Clause 2)

A basic articulation of federal authority over state

interests lies in this clause, which declares:

This Constitution, and the laws of the United States
which shall be made in pursuance thereof; and all
treaties made, or which shall be made, under the
authority of the United States, shall be the supreme
law of the land; and the judges in every state shall
be bound thereby; anything in the Constitution or
laws of any state to the contrary not withstanding.

Limitations upon state power are contained both within

the Constitution or, as the supremacy clause states, within

federal statue or treaty.

The Commerce Clause (Article I, Section 8, Clause 3)

The Commerce Clause of the Constitution provides a major

source of federal authority in coastal waters, and is also

perhaps the single most important limitation that the Consti-
tution places upon state power. 9 The language within the

- 34 -

Constitution is brief, indicating only that Congress has
power to "regulate commerce with foreign nationt s and among
the several states . . . ." But as Power observes, 10 " Over

the years the Supreme Court has given this simple language

such an expansive interpretation that today Congress has sub-

stantially unfettered control over the nation's waterways."

In 1824 the U.S. Supreme Court held, in Gibbons v. Ogden,

that "commerce" includes "transportation" which includes

"navigation." Since then, "navigable waters" has been extended

in concept by the courts to allow the federal government juris-

diction over non-navigable tributaries of a navigable water
(U.S. v. Ashland Oil and Transportation Company'. 11

But the commercecLaa@@ @@f navi-

gation, and it is not limited to commerce. As decided in

United States v. Appalachian Power Company:

It cannot properly be said that the constitutional
power of the United States over its waters is limited
to control for navigation . . . That authoritylis as
broad as the needs of commerce Flood pro@Ee-Mtion,
w Bd_-de_ve1C1 recove y of the costs of im rove-
ments thro- on B likewide parts of
commerce cu9W__UE ----------

The Supreme Court has also ruled that the commerce clause

extends beyond interstate commerce to include those actions

within a state that might affect interstate commerce:

The commerce power is not confined in its exercise to
the regulation of commerce among the states . . . (i)t
extends to those activities intrastate which so affect
interstate commerce . . . to make regulation of them
appropriate . . . no form of state activity can consti-
tutionally thwart the power granted by the commerce
clause to Congress.13

Treaties or Alliances (Article I, Section 10, Clause I)

The Constitution forbids any state to enter into any

"Treaty, Alliance, or Confederation . . ." with any foreign
power. As Wroth observes, 14 this prohibition is of co'nsid-

erable importance. It precludes a coastal state from entering

into an independent treaty with an adjacent foreign nation in

regard to such matters as regulation of fisheries or pollution

control. Thus a state must defer to the federal government in

matters relating to foreign governments, as well as to matters

falling within the broad category of "commerce."

Article II, Section 2 of the Constitution specifically

reserves for the federal government the right "to make

treaties." There have been some disputes over the extent of

this power, with states arguing that the federal government

has used this clause to infringe upon powers reserved to the
states under the Tenth Amendment. 15

With both explicit legislative authority and extensive

jurisdiction through court interpretation of the commerce

clause, there.may be little federal interest in using the

treaties provision in jurisdictional disputes with coastal

states. Yet international accords may form a substantive

part of national marine policy, and it is an important federal

power.

Power over Foreign Affairs

In Perez v. Brownell 16 the Supreme Court found that even

through there is no specific grant to the federal government of

full power over foreign affairs in the Constitution, that

such powers are, of necessity, an inherent tool of Congress.

This in part derives from the treaties limitations cited above.,

The implications of this "inherent" power may be signifi-

cant in coastal water planning and management. As an example,

the 1947 Supreme Court decision in United States v. California,

where the court ruled that the states had no authority over

coastal waters, was based primarily upon the concept of a

necessary federal control over coastal waters as part of its

power over foreign affairs.

The Submerged Lands Act and,the_.@Q4sLtal,-Z-one-Managgment

Act provide considerable_Authority to the s_t_a_te_s_,_esp_ecially

over submerqed lands within the territorial sea.. How-ever, if

regulating surface or water column activities affect foreign

nationals or forpJ',gn a yernments, this implied or inherent

f e@d e r a l a bQ-r
-ut 1-ty--My come into effect.

Admiralty Jurisdiction and Maritime Law (Article III, Section 2)

Through Article III, Section 2, federal courts are given

power over "all cases of admiralty and maritime jurisdiction."

Congress used this constitutional power to establish the

Judiciary Act of 1789 which further articulates the distribution

of state and federal.power over maritime law issues:

-The district courts shall also have
exclusive original cognizance of all civil cases of
admiralty and maritime jurisdiction . . . 1,17

This clause and the maritime law associated with it has two

principal effects upon state efforts at managing coastal water

activities. (a) It may determine in which courts a dispute

will be settled, and (b) it may determine under what principles

of law the courts are to resolve a particular issue.

To emphasize the potential significance of this clause, it

is important to recognize that while the state is not precluded

from establishing coastal water regulations, that they must be

compatible with an extensive body of existent substantive law,

and that in some instances legal disputes will, as a matter of

law, be determined in federal-district courts, rather than in

the common-law courts of the states.

As with any matter of law, it is both difficult and poten-

tially misleading to make general statements about the impact of

admiralty jurisdiction and maritime law upon state coastal water

management efforts. Each state manager is urged to consult

directly with legal counsel when considering the establishment

of coastal water regulations. With this caution in mind, some

basic concepts are presented, based upon the discussion of
Wroth. 18

1. Admiralty jurisdiction extends to all navigable
waters, including inland waters capable of being
navigated by vessels engaged in interstate or
foreign commerce, even though such waters are

- 38

wholly within a state. Thus all coastal states,
including those of the Great Lakes region, would
be affected.

2. Through the Judiciary Act of 1789, Congress pro-
vided that suitors have the right to a common-law
remedy, rather than through the admiralty courts,
"where the common law ig competent to give it "19
Thus whether a case is to be heard in a United
States District Court or in a state court is in
some instances a matter of choice for the plaintiff,
although there are several instances when as a
matter of law, such cases muct be heard in federal
istrict court rather than state court.

3. Of great importance is that federal maritime law
principles may govern a case even if it is brought
in state court. Maritime law derives in part from
historic English admiralty law and'in part from court
decisions and acts of Congress. It is a substan-
tive body of law with specific principles that may
differ significantly from the law of a coastal state,
and yet its principles may determine the decision of
a case.

An Example

For those not familiar with admiralty jurisdiction and

maritime law, a case cited by Wroth may help to explain why

the state coastal zone manager may wish to give detailed con-

sideration to this body of law in developing and administering

a coastal water use management effort.
In Kossick v. United Fruit Company 210 the issue was raised

as to whether New York state law or maritime law would deter-

mine the outcome of a dispute. The case involved an oral

promise that a shipowner had made to an injured seaman regarding

possible compensation for his injuries. The Supreme Court held

that because the case involved a seaman, and for associated

39 -

reasons, that maritime law was involved. Of importance to

state coastal managers is that the New York state law was

bypassed, and the case was instead decided by principles of

maritime law. Those principles include an ancient rule that

oral promises constitute a firm and binding maritime contract,

and it was on that.basis that the case was decided. It will be

of importance to consider maritime law and admiralty juris-

diction when dealing with the enforcement of coastal water
management provisions. @Agnew v. American Waterways 11 discussed
in Chapter Ten, focused upon the extent to which,admiralty

law should affect a state management program. It is an impor-

tant case for coastal water management, and is recommended for

review.

Doctrine of Preemption

As management programs for coastal waters become more

comprehensive, disputes may arise as to whether or not some

new state regulation is preempted by federal authority (see,

Chapter Four). The preemption doctrine that has evolved

through decisions of the Supreme Court holds that in instances

where "compliance with both federal and state regulations is

a physical impossibility" that federal law will preempt state
regulation (Florida Lime and Avocado Growers, Inc. v. Paul). 21

A factor that makes it especially difficult to clearly determine

when preemption exists is that there need not be a clear conflict

between state and federal laws. Preemption may also exist if,

the court determiens that Congress intended to close an area

from state authority..

The Coastal Zone Management Act, in Section 302(h),

indicates a strong congressional intent to have the states

serve as lead authorities in establishing comprehensive coastal

zone management programs. However, there are several explicit

and implicit preemptions.

1. Section IP-7Je) has already been cited as an explicit
declaration by Congress that the Coastal Zone Manage-
ment Act will in no manner diminish present federal
authority.

2. Section 3(LZLf) declares that the Federal Water Pollu-
tion Control Act and the Clean Air Act requirements
shall be the water pollution control and air pollution@
control requirements of state coastal management
programs.

3. Section 307(g) indicates that if a national land use
program fg-ever established it may have supremacy
over shorelands plans of the states, and will require
concurrence of the federal administrator of any
national land use program with any state land elements
in its coastal program.

In.most instances, the question of how much control a coastal

state can impose over coastal water activities will require a

careful balancing of factors. The commerce clause, the sapremacy
clause, the doctrine of pLeemption, and the admiralty clause

serve as major checks upon state authority in coastal waters,

not withstanding the provisions of the Submerged Lands Act,

the Outer Continental Shelf Lands Act, or other legislation.

However, both Congress and the Supreme Court have supported

a trend towards cooperation between state and federal authorities.

The general rule that the Supreme Court appears to follow

is that:

where the (state) statute regulates evenhandedly
to effectuate a legitimate state interest and the
effects on commerce are only incidental, it will be
upheld unless the burden-imposed on such commerce is
clearly excessive in relation to the putative local
benefits.22

Prior to the passage of the Coastal Zone Management Act there

was no specific mechanism or process for accomodating distri-

butions of authority in coastal waters as new issues emerged.

Previously most disputes were settled in the courts. However,

the state coastal management programs now provide a method of

negotiating and formalizing a distribution of power and

authority. Congress has declared that the states, using their

full authority, are the best points for establishing a national

program of coastal zone management.

It is possible that in the future Congress may alter the

current balance of power between federal and state interests,

or that court decisions will further expand the concept of

federal supremacy or preemption. But for now, especially when

dealing with coastal waters, it is not just-empty rhetoric to

assert that any successful coastal water management and planning

effort will require a partnership of both federal and state

interests, since under current law neither source has full

or sufficient power to unilaterally establish a comprehensive
Imanagement system.

breeding of the Species found there. The area Should be acquired
by the government or other means should be explored to accomplish
its protection. It is a primary wildlife area.

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the Virgin Islands. Fondo Educativo Interamericano. San
Juan, Puerto Rico.

Rathbun, G. B., T. Carr, N. Carr, & C. A. Woods. 1985. The
distribution of Manatees and sea turtles in Puerto Rico,
with, emphasis on Roosevelt Roads Naval Station.
Installation Planning Division, Engineering Command.
Atlantic Division Naval Facilities.

Reyes de Ruiz, N. B. 1971. Estudio ecologico de la Laguna
Tortuguero, Puerto Rico. Universidad de Puerto Rico,
Recinto Universitario de Mayaguez. Mayaguez, Puerto Rico.

Rivera-Ortiz, M., J. Villamil, A. Molinares, J. Berrios & W.
Ortiz. 1981. Suplemento de informacion tecnica para la
Reserva Natural de Las Cabezas de San Juan, Fajardo, Puerto
Rico. Area de Investigaciones Cientficas, Departamento de
Recursos Naturales. San Juan, Puerto Rico.

Rodriguez, J. 1981. Calidad de Agua. Informe tecnico Area
Planificacion Especial de Pinones. Division de
Planificacion de Recursos Costaneros, Pesca y Vida
Silvestre. Area de Planificacion. Departamento Recursos
Naturales. San Juan, Puerto Rico.

Salles, R., M. del Llano, J. Rodriguez, J. Toro, G. Morris, E.
Agosto, & B. Cintron. 1983. Suplemento tecnico para el
manejo de la Reserva Natural de Cago Tiburones. Area de
Investigaciones Cientificas, Departamento de Recursos
Naturales. San Juan, Puerto Rico.

Simberloff, D., and L. G. Abele. 1982. Refuge design and island
biogeographic theory; effects of fragmentation. American
Naturalist 120:41-50.

Sorrie, B. A. 1978. Report on the birds of Vieques Island,
Puerto Rico. Draft Report. U. S. Navy. 35 pp.

Sorrie, B. A. 1975. Observations on the birds of Vieques Island,
Puerto Rico. Caribbean Journal of Science. 15:89-103.

Toro, J. A. & J. A. Colon. 198o. Suplemento de informacion
tecnica para el plan de manejo del Area de Planificacion
Especial del Suroeste, Segmento de Boueron. Divison
Asesoramiento Tecnico, Area Investigaciones Cientificas.
Departamento de Recursos Naturales. San Juan, Puerto Rico.

Toro J A. & J. A. Colon. 198o. Suplemento de informacion
tecnica para el plan de manejo del Area de Planificacion
Especial del Suroeste, Segmento de Guanica. Division
Asesoramiento Tocnico, Area Investigaciones Cientificas.
Departamento de Recursos Naturales. San Juan, Puerto Rico.

Toro, J. A. & J. L. Chabert. 1986. Suplemento tecnico para la
designacion de la Reserva Natural de Laguna Cartagena.
Divison Asesoramiento Tecnico, Area Investigaciones
Cientificas. Departamento de Recursos Naturales. San Juan,
Puerto Rico.

U. S. Department of Commerce, NOAA, Office of CZM. 1978. Puerto
Rico Coastal Management Program and FEIS. Washington, D.C.

U. S. Fish and Wildlife Service. 1908o. Annual narrative report,
calendar year 1986. Desecheo National Wildlife Refuge,
Caribbean Islands National Wildlife Refuges. National
Wildlife Refuge System, Fish and Wildlife Service. U. S.
Department of the Interior.

Villamil, J., M. Canals, S. Silander, M. del LLano, J. Gonzalez,
E. Questell, M. Perez, M. Rivera, M. J. Velez, V. Mestey,
& R. Perez. 1980. Suplemento tecnico para la Reserva
Natural Caja de Muertos. Area de Investigaciones
Cientfficas, Departamento de Recursos Naturales. San Juan,
Puerto Rico

Villamil, J., J. A. Colon, M. del Llano, M. Perez, & I. Corujo.
1981. Suplemento de informacion tecnica para la designacion
de la Reserva Natural Calio la Bouilla, Mayaguez, Puerto
Rico. Area de Investigaciones Cientificas, Departamento de
Recursos Naturales. San Juan, Puerto Rico.

Wiley, J. W. and B. N. Wiley. 1979. The biology of the White-
crowned Pigeon. Wildlife Monographs No. 64.

- 47 -

territorial sea, states have a very real, if constrained,

opportunity to orchestrate wise use of coastal waters.

- 48

FOOTNOTES

1. Bartley. The Tidelands Oil Controversy, 1953. Bartley
provides several interesting citations to support
this contention.

2. The politics of national ocean policy is not only of con-
siderable interest, it is also of some importance in
understanding current distribution of authority and
considering possible future trends. There are three
sources on this topic which are especially recommended.

a. Engler, Robert. The Politics of Oil (especially pp.
86-95).
b. Bartley. The Tidelands Oil Controversy (entire book).
c. Solberg, Carl. Oil Power (chapter-91-xdiscusses the
development of federal and state policy over offshore
oil regulation)

3. Submerged Lands Act, Report of the Committee on Interior
and Insular Affairs, U.S. Senate, 83d Congress, Ist
Session, 1953, p. 37.

4. The Politics of Oil, p. 89.

5. Special master's report to the U.S. Supreme Court on U.S.
v. Maine et al, August 27, 1974. Nautilus Press, Inc.

6. Section 304(l), Coastal Zone Management Act of 1972, as
amended.

7. Office of Coastal Zone Management, Threshold Paper Number
One, Boundaries, p. 3 (May 24, 1976).

8. This section is based in large part upon:

a. Wroth, L. Kinvin. "Federal Power as a Limit Upon
State Control of Marine Resources," in Maine Law
Affecting Marine Resourcesil Volume 4.
b. Power, Garret. Chesapeake Bay in Legal Perspective,
Part Two.
C. Office of Technology Assessment. "Federal and State
Regulations of the Three Offshore Energy Technologies,"
Working Paper #1, Volume II, Coastal Effects of Off-
shore Energy Systems.
d. DuBey, Richard A. Control of Oil Transport in the
Coastal Zone.

9. Power, page 137.

10. Ibid, page 131.

- 49

11. U.S. v. Ashland Oil and Transportation Company, 504 F2d
1317 D20 (6th Cir, 1974).

12. United States v. Appalachian Power Company, 311 U.S. 377,
429'-(1940).

13. U.S. v. Wrightwood Dairy Company, 314 U.S. 110 (1941).

14. Wroth, p. 848.

15. Power, pp. 139-40.

16. Perez v. Brownell, 356 U.S. 44, 57 (1958).

17. 1 Stat. 76-77, 28 U.S. C.A. Sec. 1333 (1970).

18. Wrot, pp. 868-889.

19. (See note 17.)

20. Kossick v. United Fruit Co., 365 U.S. 731 (1961).

21. Florida Lime and Avocado Growers, Inc. v.,- Paul, 373 U.S.
132.

22. Pike v. Bruce Church, Inc. 397 U.S. 137, 142 (1970).

- 50 -

RECOMMENDED READINGS

1. Wroth, L. Kinvin. "Federal Power as a Limit Upon State
Control of Marine Resources" in Maine Law Affecting
Marine Resources, Volume. 4. University of Mai e
School of Law, 1969. These four volumes reamin a
good introduction to federal and state law related
to coastal zone management, and have application far
beyond the state of Maine.

2. Power, Garret. Chesapeake Bay in Legal Perspective. U.S.
Department of Interior. March, 1970. As witH-'@Fhe
Maine collection, this serves as a good reference to
coastal law. Although somewhat outdated, it remains,
especially in Part Two, a useful reference.

3. Bartley. The Tidelands Oil Controversy. 1953. See
footnote number two for associated sources of interest
on the formation of federal OCS law.

P Supreme
4. Special Masters ReLort to the U.S. Court@on U.S. v.
Maine, et al, August 27, 1974. Nautilus Press, Inc.

5. The state of Washington, as part of the preparation of a
coastal management guidebook, has developed a major
legal analysis on local, state, and federal authorities
that should be completed by July of 1977.

6. Congressional Research Service. Legislative History of
the Coastal Zone Management Act of 1972, as Amended
in 1974 and 1976 with a Section-by-SeRtion Index.
National Ocean Policy Study. December, 1976.

- 51 -

CHAPTER THREE

FEDERAL LAWS. AND AGENCIES

RELATED TO COASTAL WATERS

SECTION ONE: FEDERAL LAWS

Many federal laws, programs, rules, policies, and regu-

lations affect coastal waters. The problem and challenge for

state coastal management programs is to assimilate this diverse

collection of federal legislation and agency rules into a

cohesive coastal water management system within the territorial

waters of each state.

A full discussion of all of the federal laws that might

affect coastal management is beyond the scope of this effort.

Only the major laws are presented, and many of these may undergo

significant revision in the near future. The subject of coastal

and ocean management has become the focus of both congressional

and executive branch action and those involved in coastal zone

management should be cognizant of pending amendments and reorgan-

izations.

The summaries included in this chapter are not intended as

exhaustive discussions of the present legislation. Actual refer-

to the text of a specific law is strongly recommended. This

chapter ismeant to be used in connection with Part Two in which

further discussion of specific legislation is provided.

- 53

Clean Air Act

Deepwater Port Act

Endangered Species Act

Federal Aviation Act of 1958

Federal Water Pollution Control Act

Fishery Conservation Act

Intervention on the High Seas Act

Marine Mammals Protection Act

Marine Protection, Research, and Sanctuaries Act

Marine Resources and Engineering Development Act

Military Public Lands Withdrawals Act

National Environmental Policy Act

Outer Continental Shelf Lands Act

Ports and Waterways Safety Act

Proclamation 2732 of 31 May, 1947

Rivers and Harbors Act of 1899

Water Resources Planning Act

NOTE: Additional acts are described in Chapters Four
through Ten, as they affect specific coastal
water activities.

- 54 -

Clean Air Act (42 U.S.C. 1857-1857f)

This Act establishes a national program of air quality
research, maintenance, and improvement. National primary
and secondary standards are established, for both point
and non-point sources of pollution. The Environmental
Protection Agency establishes standards which states
administer. States are allowed to designate areas as
being either Class I, Class II, or Class III, which in
effect are air quality.zones of decreasing restrictiveness.

This is a major federal law which continues to be a source
of controversy and amendment. The standards of the law
are required, by the Coastal Zone Management Act, to be
the air quality standards for a state coastal management
program.

Importance for State Coastal Water Management Programs:

The importance of this Act for Coastal Zone Management
could be immense. Air loading of coastal waters may be a
major source of pollutants such as PCB's, and state
coastal management programs may increasingly attempt to
use the consistency provisions to insure that state and
national air quality standards under the Clean Air
Act are consistent with coastal management objectives.

Stringent air quality standards may also determine patterns
of coastal water use. It is possible that some activities
may seek a coastal water location in order to use some
of its air quality capacity, as compared to major urban
land areas. State consideration.of priority uses for
coastal waters should take into consideration the air
quality impacts of various alternatives, as well as other
factors such as water dependency.

Deepwater Port Act of 1974 (33 U.S.C. 1501-1524 (1975))

This Act establishes jurisdictional authority over the
licensing and regulation of deepwater ports beyond the
territorial sea (coastal waters) of the United States.

. The Secretary of Transportation is authorized to issue
licenses for the ownership, contruction and operation of
deepwater ports. The Secretary must find that the project
is consistent with the national interest, national
security, and other national policy goals and objectives,
including energy sufficiency and environmental quality
(Section 4(c)(3).

The deepwater port must use best available technology
so as to prevent or minimize adverse impact on the marine
environment (Section 4(c)(5).

- 55 -

The Environmental Protection Agency must certify that
the deepwater port will conform will all applicable pro-
visions of the Clean Air Act, the Federal-Water Pollution
Act, and the Marine Protection, Research and Sanctuaries
Act (Section 4(c)(6). A'license cannot be granted if the
5oveIrnor 'of any I'adjacent" coastal state does not'approve
(Section 9(b)(1). Adjacency is determined by:

1. Direct connection by pipeline to the deepwater port.
2. Being within 15 miles of the deepwater port site.
3. If the Secretary of Transportation, in response to
a coastal state's request, designates such a state
as being an "adjacent coastal state."

This determination is to be based upon whether or not there
is a risk of damage to the coastal environment of such
state:

f1equal to or greater-than the risk posed
to a state directly connected by pipeline
to the proposed deepwater port." (Section
9(a)).

If a governor of an adjacent coastal state declares thad
the application for license is'incon'sistent with state
programs relating to environmental protii=tion, land and
water use, and coastal zone management, any license
granted must be conditioned so as to make it consistent
with such programs (Section 9(b)(1)).

An oil discharge liability is also established by this
Act, including the creation of a $100,000,000 Deepwater
Port Liability Fund to be financed by a fee of two cents
per barrel for loading or unloading at the deepwater port
(Section 18).

The law of the-nearest adjacent coastal state will apply
to any deepwater port licensed under'the Act, so long as
state law is consistent with federal law and the regulat-
tions of the Deepwater Port Act (SectioF 19(b)).

Importance for State Coastal Water Use Management Programs:

. An adjacent coastal state has veto power over the
development of any deepwater port.

. The Coastal Zone Management Act requires that approved
state programs reflect a full consideration of the national
interest which specifically includes consideration of
energy related facilities. Further, deepwater ports may
represent an environmentally superior alternative to
increased levels.of smaller tankers moving in andout,of
shore-based ports. Whether this is always true, deepwater
ports represent a major regional and national interest and
will probably affect most coastal states. Chapter Seven
provides further information.

- 56 -

Endangered Species Act of 1973 (16 U.S.C. 1531-1543)

The Secretary of Interior is to prepare a list of endan-
gered species and issue necessary regulations to provide
for their conservation. All federal departments and
agencies are to insure that "actions authorized, funded,
or carried out by them do not jeopardize the continued
existence of such endangered species and threatened
species or result in the destruction or modification of
habitat of species determined by the Secretary to be
critical." (Section 7),

Importance for State Coa'stal Water Management:

The full implications-of this Act are not clear, and
there is growing pressure to modify its provisions.
However, it may be of considerable importance, as evidenced
by two recent examples:

Tellico Dam Project. On January 31, 1977 the U.S. Court
iYff Appeals to the Sixth Circuit enjoined the Tennessee
Valley Authority from further construction of its almost-
completed $116 million Tellico Dam project on the Little
Tennessee River. This action was based onthe discovery
that part of the proposed Tellico Reservoir to be formed
by the proposed dam would destroy the habitat of the
snail*darter, a three-inch member of the perch family.
The snail ter is on the federal endangered species
list because the Little Tennessee River is the sole
habitat of the fish (New York Times, February 6, February
1, 1977).

Dickey-Lincoln Hydro-Electric Dam. In the fall of 1976
a rare species of wildflo , the furbish lousewort, was
discovered near the Upper-St. John River in Maine. This
flower has been proposed for inclusion on the federal
endangered species list. Unless some way can be found of
transplanting and protecting the species, the large hydro-
electric dam project, which would flood and destroy both
the specimens and their habitat, may have to be modified
in order to meet the requirements of the Endangered Species
Act.

Federal Aviation Act of 1958

The Secretary of Transportation is authorized and directed
to formulate policy with respect to the use of the navi-
gable airspace, and assign by rule, regulation, or order
theuse of the navigable airspace under such terms, condi-
tions, and limitations as he may deem necessary in order
to ensure the safety of aircraft and the efficient use of
such airspace. Full consideration must be given to the
requirements of national defense.

Executive Order 10854 of 1959 extended this authority to
areas of land or water outside the United States and
the overlying airspacethereof over or in which the
federal government of the United States appropriate
jurisdiction or control, "provided the Secretary of
Defense agrees that it is not inconsistent with the
requirements of national defense."

Importance for State Coastal,water Management Programs:

This is the authority through which the Department of
Defense secures various special use airspace designations,
and would appear to constitute a permit under Section 307
(c)(3)(A) of the Coastal Zone Management Act of 1972, as
amended.

Federal Water Pollution Control Act-.(PL 92-500)

This Act establishes as nationa1goals some rather explicit
water quality conditions which could have considerable
impact upon coastal water use decisions.

Section 101(a). The objective of this act is to restore
and maintain the chemical, physical, and biological
integrity of the nation's waters.

Section 101(a)(1). "It is the national goal that the
discharge of p6lffutants into the navigable waters be
eliminated by 1985.11

Section 101(a)(2). "It is the national goal that where-
ever attainablii-,an interim goal of water quality which
provides for the protection and.propagation of fish, shell-
fish, and wildlife and provides for recreation in and on
the water be achieved by 1983."

Section 101(a)(3). "It is the national objective that
the discharge of toxic pollutants in toxic amounts be
prohibited.

Importance for State Coastal Water Mangement Programs:

The amendments of 1972 serve as the source of water
quality managment for coastal waters, as specified in
Section 307(f) of the Coastal Zone Management Act.

Notwithstanding any other provision of this title,
the Federal Water Pollution Control Act, as
amended . . . shall be incorporated in any program
developed pursuant to this title and shall be the
water pollution control . . . requireFe-nts appli-
cable to such program. (emphasis added)

- 58

The Coastal Zone Management Act requires that each state
program consider the national interest, as reflected, in
part, in the mandate of.various federal agencies.

Several other sections of the Act are of importance to
coastal water use management. Program mangers should
become familiar with each of the Act's many provisions,
including construction grants for sewage treatment
systems, and Section 2b8 areawide waste treatment manage-
ment plans. A brief summary of some of the sections
that have direct impact upon coastal water management
follows.

Are*awide Waste Treatment ManaZement Plans: Section 208
of the FWPCA provides for regional water quality planning.
Many states are approaching such programs as land'use
planning, and the language of the Act in Sect'1=208
reflects that thinking. However, coastal managers may
wish to explore the degree to which 208 funds and pro-
visions might be used for coastalwater areas that have
"substantial water quality control r-oblems." Perhaps
wate areas -Fn _hea_vy_,bna_t_traf tic,
stormwa@rter cd@iiischarge@,surfface oLf-,-or-sImilar pollu-
Pr ssures mig 2
ssures m1cr si
tion pre e diesig=nate as water areas of
part er Section 208.

Section 311: Oil and Hazardous'Substance Liability:

Section 311(b)(1) ". . . it is the policy of the United
States that there should be no discharges of oil or
hazardous substances into or upon the navigable waters
of the United States, adjoining shorelines, or into or
upon the waters of the contiguous zone."

Section 311(c)(2) calls for the creation of a National
Contingency .Plan for oil spills, including formation of
strike forces, and a national center for coordination.

Section 211(o)(2) "Nothing in this section shall be con-
strued as preempting any state or political subdivision
thereof from imposing any requirements or liability with
respect to the discharge of oil or hazardous substance
into any waters within such state."

Section 311(o)(3) "Nothing in this section shall be con-
strued . . . to affect any state or local law not in
conflict with this section."

section 312: Marine Sanitation'Devices: to prevent the
discharge of untreated or inadequately treated sewage
into or upon the navigable waters.

Section 316: Thermal'Dtischarge: to assure the protection
and propagation of a balanced indigenous population of
shellfish, fish, and wildlife.

Section 318: Aquaculture: The Administrator of EPA is
authorized to allow certain "pollutant" discharges from
approved aquaculture projects.

Section 401: Certification: Any project thAt will cause
a water discharge must 3-btain a state certification that
the activity meets req .uirements of the Act.

Section 401(c): The Corps of Engineers is authorized to
permit use of dredge spoil disposal areas.

Section 402: Natiotial-Pollutant Discharge Elimination
System (NPDES)

Section 403: Ocean Discharge Cr .it er.ia: Special guide-
lines are to be promulgated for-9-ec-t-71-on 402 permits that
involve the territorial sea, the waters of the contiguous
zone, or the oceans.

Section 404: Permits for Dredged or Fill Material:
Authorizes-the Army Corps of Engineers to issue permits
for the discharge of dredged or fill material into navi-
gable waters at specified disposal sites.

Section 405: Disposal of Sewage'Sludge: Prohibits sludge
dispos9l -except under EPA permit. States can request
administration of such permits within their jurisdiction.

Section 504: Emergency Powers: The Administrator of EPA
can seek court action to restrain any activity that pre-
sents "an imminent and substantial endangerment to the
health of persons or to the welfare of persons where such
endangerment is to the livelihood of such persons, such
as inability to market shellfish."

.Section 510: State Authority: The states may not adopt or
@enforce standards whicS--are less stringent than those for-
mulated under the Act. Except as expressly provided in
the Act, nothing in the Act shall be construed as impairing
or in any manner affecting any right or jurisdiction of
the states with respect to the waters (including boundary
waters) of such states.

- 60 -

Intervention on the High Seas Act (33 U.S.C. 1471-1487 (1970))

Whenever a ship collision,.stranding, or other incident
of navigation or the occurrence on board a ship or external
to it leads to "a grave and immenent danger" to the coast-
line or realted interests of the United States due to
pollution or threat of pollution of the sea by oil, the
Secretary of Transportation may take measures on the high
seas beyond the coastal waters to prevent, mitigate, or
eliminate that danger.

Specific coastal resources to be protected include, but
are not limited to, fish, shellfish, and other living
marine resources, wildlife,:co*astal zone and estuarine
activities, and public and private s lines and beaches.

A controlling factor in determining when action can take
place is whether or not a "major harmful consequence" is
involved. Any remedial actions taken must be limited
proportionately to the actual damage that is expected,
and such action cannot go beyond what is "reasonably
necessary" to prevent, mitigate, or eliminate that damage.

Importance for State Coastal Water Management Programs:

While states do not have jurisdiction beyond the territorial
sea, they could seek DOT assistance under authority of
this Act to take action on a hazard threatening state
coastal waters.

Marine Mammals Protection Act (16 U.S.C. 1361; 1371-1384)

The taking, importing, exchanging, selling, or trading
or marine mammals requires a permit. with some excep-
tions, killing of marine mammals is prohibited. A
Marine Mammal Commission is established-and is admin-
istered by Interior's Fish and Wildlife "d by the
National Marine Fisheries Service of NOAA.

Importance for State Coastal Water Management Programs:

This Act establishes another national interest which
state coastal management programs are required to con-
Sider. The greatest impact to date has been upon the
tuna fishing industry, requiring the protection of porpoise
(see Chapter Five and Eleven). The protection of marine
mammals and of marine mammal habitats within territorial
waters thus becomes an important part of coastal water
use management and warrants consideration as a desig-
nated priority use of coastal waters.

The Act also provides assistance to states to establish
research and protection programs, and allows state admin-
istration under federal supervision. The*se provisons
might'serve as technical and financial support for coastal
water planning and management efforts.

Marine Protection, Research*,!'and Sanctuaries'Act of 19'72
(33 U.S.C. 1401-1444)

See Chapter Four.

Marine Resources'and Engineering Development Act of 1*96'6
(33 U.S.C. 1101-1108)

This Act established the National Council on Marine
Resources and Engineer'ing-De@ve@opment,charged wi't-H-
coordinating ederal marine science research and
development. It also authorized the establishment
of a.Commission on Marine'.S'cience,' Engineering 'and
Resources which prepared Our Nation and the Sea, a
report that still serves as an excellent description
of national coastal management issues and opportuni-
ties.

Importance for State Coastal Water Management Programs:

Our Nation and the Sea remains a valuable source of infor-
mation and warrants reveiw by those interested in coastal
water management. The National Council, composed of the
chiefs of major federal departments, could serve an impor-
tant role in the formation of a national ocean policy,
and in resolving some of the present jurisdictional
conflicts within the territorial sea. However, its
linkage with the national coastal zone management pro-
gram is unclear, and some agencies seem unsure as to its
value or future.

Military Public Lands Withdrawal Act (43 U.S.C. 155-158)

This Act stipulates that an act of Congress will be neces-
sary for the withdrawal of public lands, including those
of the outer continental shelf, for purposes of national
defense, if such withdrawals would involve more than 5,000
acres.

Importance for State Coastal Water Management Programs:

This is not the most significant of federal acts relating
to national security and coastal water use management.
However, it serves to call attention to the extremely
complex issues of limited and unlimited nationalemergencies

- 62

under which the Executive Office of the President has,
over the past thirty years, established several rules
related to national defense. Many of these rules are
still in effect, and during times of future national
emergencies, under present law, the Office of the
President is given extraordinary powers to establish
orders such as the declaration of security areas in-
coastal or ocean waters. During time of war, these
powers, as well as those of Congress, are expanded by
another order of magnitude.

For most coastal states, there is no*immediate need to
explore rules promulgated under past or still-declared
national emergencies, or under war powers. But it is
of importance to recognize that most of the provisions
of the Coastal Zone Management Act could be seriously
affected under national emergency or war conditions.
The implications of this are not always obvious and
deserve consideration.

National Environmental Policy Act of 1,969 (42 U.S.C. 4321-4347)

This Act established the Council on Environmental Quality
and the requirements for the by novifamiliar Environmental
Impact Statement (EIS) to be prepared for every signif-
icant federal project. What must be contained in an EIS
has expanded, to-the point where most EIS's are signifi-
cant decision documents and important sources of manage-
ment information. Federal agencies are allowed to make
an initial determination of when an EIS is required.

Importance for State Costal Water Management Programs:

This law has two impacts upon state management programs.
First, it serves as a useful source of information. For
example, the New Hampshire Coastal Management Program has
obtained a significant amount of its inventory data from
federal EIS's, such as that prepared for the SEABROOK
nuclear power plant. Without such information, states
might be unable to assess the degree of consistency of
@a proposed activity.

Secondly, NEPA establishes a requirement, under law, that
environmental impact be taken into consideration. If a
major adverse impact will result from a project, that
impact must be identified and possible methods of miti-
gation identified and evaluated. Failure to prepare a
proper impact statement can lead to the blockage of a
project. A measure of this potential can be found in the
January 17, 1977 action of Federal Judge Weinstein. He
ruled the major mid-Atlantic OCS lease of 93 tracts made
in August of 1976 as being null and voild (Wall Street

Journal, February 18, 1977). The basis of his action
was that the EIS for the lease was inadequate,having
failed to consider several important factors such as
the potential ability of local communities to-block
landfalls of OCS pipelines.

NEPA can be used as a positive tool to gather otherwise
unavailable information, and to force activity sponsors
to focus upon the critical task of using coastal waters
in such a way as to minimize destruction or disruption.

Outer Continental"Shelf'Land's Act (43 U.S.C. 1331-1343 (1964)

Historically, this Act is a companion piece to the
Submerged Lands Act of 1953 (see Chapter Two). It estab-
lir'-s-hes federal j.ursidiction, control, and power over the
subsoil"and seabed of the outer continental shelf. This
not only adopts.the Truman Proclamation which extended
U.S. jurisdiction beyond three miles, but also makes quite
clear that beyond three miles federal rather than state
authority is to control the submerged lands.

This act is of considerable importance, since it, along
with the Submerged Lands Act, is the basic source of
state autFo'rity in coastal waters. Several proposals for
modification of this Act have been made in recent years, a
frequent feature of which has been to allow more state
participation in federal leasing decisions. -

The right to navigation and fishing and, in general, to
activities other than submerged lands activities, are not
affected by the Act. This is the basic authority for
the Department of the Interior to lease OCS lan-ff-s.It
also establishes thatthe Federal Power Commission sKall
r?IF@cgr-ulate--6gas--p-i'p--'e-j:@iifi-e-s--'a-n-d--t-ha-t- the'- Interstate Commerce
gas
Commission sfi-al:r-3F64-UJ6:td-6117pipelines.

The OCSLA states that the criminal and state laws of the
state directly inshore from any artificial islands apply
to "artificial islands and fixed structures," as.well as
to the submerged lands of the outer continental shelf.
But if state law is to apply, it must be consistent with
federal laws and regulations (Section 4(a)(2)).

U.S. District Courts are given original jurisdication of
cases and controversies involving:

. . . exploring for, developing, removing or
transporting by pipeline the natural resources,
or involving rights to the natural resources of
the subsoil and seabed of the outer continental
shelf . . . . 'I (Section 4(b))

The Secretary of Interior is authorized to "cooperate"
with the conservation agencies of adjacent states
(Section 5 (a) (1)

In the event of a controversy between the United States
and a state as to whether or not lands are subject to
the provisions of this Act, the Secretary is authorized
to negotiate with the state in questions regarding
operations of leases, payments, and the issuance of new
leases.

Section 8(a) speaks of the"'urgent need" for further
exploration and development of the oil and gas deposits
of the submerged lands of theouter shelf.

Section 8(c) suggests that there is an "urgent need" for
exploration and development of sulphur deposits in the
submerged lands of the outer continental shelf.

Section 11 allows for the geological and geophysical explor-
ation in the outer continental shelf, as authorized by the
Secretary, but only if they are "not'unduly'harrftful to
aquatic life in such area."

The Secretary of Defense, with thgo-a roval of the
dent, can-restric r._ ex loration and riti-om-any
portions of the outer continental shel Hne-e-d national
de,@nse@_"(S*ecti[on 12 (d)

Importance for State Coastal Water Management Programs:

This is a key piece of legislation, and it is recommended
that each state program manager become familiar with its
provisions. Further, it is suggested that each state
coastal zone management program attempt to keep track of
pending congressional modifications of this law.

There remain serious questions as to how the Coastal Zone
Management Act may affect the provisions of this law.
For example, the Office of Coastal Zone Management threshold
papers explicitly prohibit the inclusion of OCS waters or
submerged lands within the boundaries of an approved
@coastal zone management program. Yet the Act establishes
as a basic objective the formation of state programs that
regulate direct and signficant impacts upon coastal waters.
Of critical importance in terms of jurisdiction is that OCS
developments, while outside the coastal zone, may be major
sources of"Uirect'and significant impacts upon coastal waters.
To the degree that a state can establish that activities
occurring under the jurisdiction of the Outer Continental
Shelf Lands Act will impart a direct and significant impact
upon their state coastal waters, they may be able to

65 -

establish some claim to a need for federal.-consistenty
within an approved CZM program as a criterion in the
administration of the OCSLA.

This is a sensitive issue which c ould lead to future
disputes between state and federal interests.. However,
the state is in a strong position to influence and to
some degree control OC8 activities.. Most if.not all of
these activities are at some point dependent upon coastal
waters or shorelands,,,both of which fall wiTbin the admin-
istrative jurisdiction:of coastal states (see Chapter
" discussion of this point).
Ten for

Ports and Waterways Safety Act@of 1-972 (33 U.S.C. 1221-1227 (1970))

The purpose of this Act is to promote the safety of ports,
harbors, waterfront areas, and navigable waters of the
United States. The Secretary of Transportation is auth-
orized to establish vessel traffic systems, methods of
vessel operation, and standards of vessel equipment and
construction.

Section 104 requires the Secretary of Transportationto
provide an 'adequate opportunity" for states to consult
and comment upon proposed rules, regulations, and
standards.

Section 102(c) provides that the Secretary May consider,
utilize and incorporate regulations or simii-ar directory
materials issued by port or other state and local author-
ities.

Section 102(b) allows states to establish higher equipment
requirements or safety standards:

of
. . . nor does it prevent'a state or political
subdivision thereof from prescribing for structures
only higher safety equipment requirements or safety
standards than those which may be prescribed pur-
suant to this title."

Importance for State Coastal Water Management'Programs:

This Act provides the Coast Guard with considerable authority
to regulate vessel traffic in caostal waters and to estab-
lish regulations for tanker safety. At issue is the degree
to which this Act preempts state authority. The U.S.
Supreme Court has agreed to consider this and associated
issues resulting from a challenge to Washington State's
tanker regulations.

- 66

Proclamation 2732 of 31 May,,,,1947 (See.33 U.S.C. Section 143)

This proclamation gives the Departmentof the Army authority
and jurisdiction for the establishment and abandonment of
anchorages and restricted areas in navigable waters of the
United States and its possessions.

Importance for State Coastal'Water Management'Programs

This is a principal source of authority by which the
Navy establishes its operational areas within the coastal
waters of the United States.

Rivers and Harbors Act of 1899 (30 Stat 1151-1153)

This is a primary source of jurisdictional authority for
the U.S. Army Corps of Engineers, along with the FWPCA
amendments of 1972.

Section 9: Within state coag@t_kI_,3!L4_tgrs, thg__.@@qrps must
ap rove ra-ns for the
@2 ,dam,,
dike_, o3@_ causewaX.
Section 10: Unless approved__Py__Porkg ss, an ob-struc--tion
to the navigAhle capaiHty of@ @@py__pf the waters of the
UnIted !3@t;ate. , _s rohibitd-d. Also:
_@ . P-Ti __P -

a. Outside of established "harbor lines" (bulkhead lines)
the Corps must approve the construction of any wharf,
pier, dolphin, boom, weir, breakwater, bulkhead, jettey,
or other structure in any port, roadstead, haven, har-
bor, canal, navigable river, or other water of the
United States.

b. Within the limits of an established harbor line, Corps
approval is needed to excavate or fill, or in any manner
to alter or modify the course, location, condition, or
capacity of any port, roadstead, haven, harbor, canal,
lake, harbor of refuge, or enclosure, or of the channel
of any navigable water of the United States.

Section 11: The Secretary of War is granted the power to
establish harbor lines, beyond which no piers, wharves,
bulkheads, or other works shall be extended or deposits
made except under regulations which the Secretary may
establish.

Section 13: A permit system administered by the Secretary
of War and the Chief of Engineers is established. Without
a permit it is unlawful to throw, discharge, or deposit, or
cause, suffer, or procure tothe thrown, discharged, or

deposited either from or out of any ship, barge, or
other floating craft of any kind, or from the shore,
wharf, manufacturing establishment, or mill of any
kind, any refuse matter of any kind or description
whatever other than that flowing from streets.and
sewers (regulated now by FWPCA .amendments of 1972) into
any navigable water of the United States or into any
tributary of any navigable water.
Section 14: Makes it illegal to defa#ce, remove or tie
vessels to public works in coastal wdters or to aids to
navigation..

Section 15: It is unlawful to tie up or anchor vessels or
other craft in navigable channels in such a manner as to
prevent or obstruct the passage of other vessels or craft.

Section 20: In an emergency if a vessel or boat is
sinking, grounded, or otherwise stopping, seriously
interfering with, or specially endangering navigation,
the Secretary may take immediate possession of the vessel
and remove or destroy it to clear canals, locks, or
navigable waters.

Several of these-provisions have been duplicated or trans-
ferred through recent legislation. The "ocean dumping"
regulations, the Title 33 authorities of the Coast Guard,
the Rivers and Harbors Act, and the various provisions of
the 1972 amendments of the Federal Water Pollution Control
Act are basically expansions of this earlier legislation.
This legislation constitutes a powerful jurisdictional
foundation for regulation which conflicts with some of the
provisions and declared congressional intents of the
Coastal Zone Management Act (see Chapter Two). It is also
not clear as to how this-and similar federal legislation
cited above relates to the extensive state regulatory
authorities recognized in the Submerged Lands Act of 1953.
The degree to which this extensive federal authority i7i-ght.
effectively limit state ability to control direct and
significant impacts upon coastal waters may be mitigated
by the Section 307 consistency requirements of the CZMA.
However there may also, be a need for legislative adjustment
to explicitly recognize some degree of stae authority over
the subjects of this Act.

Water Resources Planning Act (42 U.S.C. 1962)

This Act established,the Water Resources Council, composed
of Secretaries of Interior, Agriculture, Army, HEW, and
the Chairman of the Federal Power Commission.

- 68

The congressional policy statement, in Section 1962,
encourages the conservation, development, and utiliza-
tion of water and related land resources. of the United
States on a comprehensive and coordinated basis by the
federal government, states, localities, and private
enterprise with the cooperation of all affected federal
agencies, states, local governments, individuals, corpor-
ations, business enterprises, and others concerned.

Regional river basin commisions were also authorized
under this Act. Two of these, the New England River
BasinsCommission, and the Great Lakes Basin Commission,
have become active participants in coastal zone planning
and management.

Importance for Coastal Water'Mangement Programs:

Comprehensive management of water resources has been advo-
cated in one form or another since the mid-1800's, and the
Inland Waterways Commission Report of 1908 provides a
specific statement of this concexpt. The Water Resources
Planning Act represents a "final" step in a management
concept that had been evolving for at least fifty years.
But the Water Resources Planning Act and the associated
Water Resources Development Act of 1974 (PL 93-251) have
little direct connection with comprehensive coastal zone
or ocean management. Thus there are currently two sets
of comprehensive water planning.-effor S, one for inland
waTe-r-s-,-Tn-c-I-ud-Ingriver and river basin planning, and
another one for coastal zone managemEn't.-If an ocean
poRcy is ever ormulated,-Enere may-exist three separate
comprehensive water management systems, with little legis-
lative or administrative coordination.

As an example of possible connections, there remains a
basic issue as to who should establish quality standards
for major river discharges into coastal waters. Are
coastal managers to accept present inland water inputs to
the coastal waters as a "given" or can they develop concepts
of acceptable levels of water quality based upon the uses
and tolerances of the coastal zone? At the present time
there is no clear legal or national policy recognition of
this type of problem.

- 69 -

RECOMMENDED READINGS

1. Office of Technology Assessment. "Federal Laws Relevant
to Offshore Development," in Coastal Effett's of
offshore Energy Sy'stems, Volume II, pages 109-163.
November, 1976.

2. Congressional Research Service. A_Compil'at*ioh,-'o'f*Feder'al
Laws Relating to'Conservation and Development.-6-f
Our'Nation's Fishand Wildlife Resource's,'Envkronmental
Quality, and Oceanograph7. U.S. Government Printing
Office. January,.,197.3.

SECTION TWO: FEDERAL AGENCIES ASSOCIATED WITH COASTAL WATER
USE MANAGEMENT

The following descriptions are not intended to be compre-

hensive presentations of the activities and authorities of

.federal agencies. Some of the more significant and direct

programs relating to a state's coastal water use management

efforts have been identified and briefly described, but these

are not exhaustive.

At this time there is considerable interest in possible

changes in the distribution of jurisdictional authority within

coastal ocean management. It is quite possible that signifi-

cant executive branch reorganizationswill take place that will

have a direct impact upon coastal water use management. There-

fore, it is suggested that filed be kept on existent and new

programs and agencies. The "packet" approach of the state of

Washington provides one possible example.

As a further suggestion, state coastal managers maywish to

devote timelto a detailed study of existent lawAs and programs

at the federal level. While.the Coastal Zone Management Act of

1972 provides a principal source of direction and funding for

coastal water use planning and management, there are other sources.

Considerable opportunities are available for a creative augmenta-

tion of state research and enforcement capabilities by fully

utilizing these additional programs.

71 -

Department of Commerce

Department of Defense

Department of Health, Education, and Welfare

Department of Interior

Department of Transportation

Energy Research and Development Administration

Environmental Protection Agency

Federal Energy Administration

Federal Power Commission

National Aeronautic and Space Administration

Nuclear Regulatory Commission

Department of Commerce

Principal' Coastal Wate' L'
r___egislation:

Coastal Zone Mangement Act of 1972
Endangered Species Act
Fish and Wildlife Coordination Act
Fishery Conservation Act of 1976
Marine Mammal Protection Act of 1972
National Sea Grant College and Program Act of 1966

Some Major Coastal*Water Management Agencies and P*r'ograms:

National Oceanic and Atmospheric Administration
Office of Coastal Zone Management
National Ocean Survey
Economic Development Administration
Federal Maritime Administration
National Marine Fisheries Service
Sea Grant
Environmental Data and Information Services

Principal Activities

Administration of Coastal Zone Management Act of 1972
Ocean dumpsite monitoring and research, as required
under Title II of the Marine Protection, Research and
Sanctuaries Act of 1972
Administration of the Fishery Conservation Act of 1976
Administration of the National Sea Grant Program
Administration of the Marine Mammal Protection Act
Operation of National Environmental Satellite Service
operation of Environmental Data and Information Services,
including Environmental Data Index (ENDEX) and Oceanic
and Atmospheric Scientific Information System (OASIS)
Operation of National Climatic Center
Operation of National Oceanographic Data Center
Operation of National Oceanographic Instrumentation Center
Research on weather, marine ecosystems, climate modifi-
cation, aquaculture, anadromous fisheries, and fish
gear development

- 73 -

Economic Development'.Admin-istration:
@
DA has the general purpose of providing funds to commun-
ties for projects that will improve economic base and
nemployment.

As prt of this funding, it is estimated that EDA has
invested, more than $100 million for port facilities
since 1965.*

EDA is a potential source of funding for coastal water
->-related development that could have significant impact
upon coastal water management programs.

Federal Maritime Administration:

Under a mandate derived from the Merchant Marine Act of
1936 and the Merchant Marine Act of 1970, the Maritime
Administration attempts to provide a modern efficient U.S.
merchant fleet and maintain a strong shipbuilding industry.

The Maritime Administration has provided essential funds
for supertankers, LNG carriers, andmost recently, nuclear
powerd tankers. In fiscal 1975 the Maritime Administration
provided oil tanker and LNG carrier subsidies of $275
million per year.

The Maritime Administration maintains the national Mer-
chant Marine Academy-at Kings Point, New York and supports
six state merchant marine schools.

The Maritime Administration supports research and develop-
ment projects on new cargo systems and better contruc-
tion techniques.

National Marine Fi-sheries Service:

NMFS administers several laws and programs, including the
Anadromous Fish Conservation Act, the Endangered Species
Act, the Commercial Fisheries Research and Development
Act, the Fish and Wildlife Coordination Act, the Fishery
Conservation and Management Act, the Fur Sea Act, the
Marine Mammal Protection Act and the Marine Migratory
Game Fish Act.

Eric Schenker, et al. The Great Lakes Transportation
System. UniVe-rsity of Wiscons-IR-Sea Grant, 1976.
2-4 6 .

- 74 -

NMFS reviews Section 9, 10, 402 and 404 permits and
other federal programs for impact upon fisheries.

NMFS works with'the Fish and Wildlife Service (Interior)
on many research, review, and management tasks related to
marine fisheris.

NMFS designates critical marine habitats-for endangered
species.

NMFS sponsors fisheries research, including marketing,
gear testing, and habitat improvement.

Department of Defense

Department of the Navy:

Development and maintenance of defense and security
capability.
Operation of tactical marine systems.
Research on marine weapon systems.
Monitoring of marine development and usage patterns.
Extensive research in all aspects of the marine environ-
ment, including studies of deep ocean bathymetry, marine
mammal behavior, coastal hydrographic surveys, and under-
water acoustics.

Defense Advanced Research Projects Agency:

Extensive research and development efforts on a wide
variety of concepts and systems with military potential.

Defense Mapping Agency

Primary permit control over hazards to navigation, shore-
line construction, and dredging, through mandate of Rivers
and Harbors Act of 1899, Marine Protection, Research and
Sanctuaries Act, Federal Water Pollution Control Act
Amendements of 1972, and River and HarobrAct of 1902.
Construction and maintenance of harbor and marine facilities.
Research on navigation and coastal engineering (also other
areas).

Department of Health, Eduation and"Welfare

Principal Coastal' Water' Legislation:

Food, Drug, and Cosmetic Act (21 U.S.C. 301)

Major Coast!a'l Water Manaqeme nt Agencies and Programs:

.Food and Drug Administration
National Shellfish Sanitation Program
National Institute of Health

Food and Drug Administration:

FDA is responsible for insuring that food obtained from
the ocean, shipped in interstate commerce, is safe, pure,
wholesome, and processed under sanitary conditions.

FDA administers the National Shellfish Sanitation Program
which is a voluntary federal, state and industry effort
to protect and improve the quality of shellfish.

FDA inspects plant inspections and samples the quality of
fish and fish products to insure safety and quality.

Department of Interior

Bureau of Outdoor Recreation:

Distributes funds from Land and Water Conservation Fund
Act of 1965,. encouraging and assisting in recreational
planning.

Bureau of Land Management:

Manager of federal submerged lands.
Under authority of Outer Continental Shelf Lands Act,
regulates and supervises leasing of OCS lands.
Grants right-of-way permits for common carrier pipelines.

- 76 -

Fish and Wildlife Service:

Administers (often with NMFS) Fish and Wildlife Conser-
vation Act, Andromous Fish Conservation Act,.Endangered
Species Act, Wildlife Res@toration Act, Marine Mammals
Protection Act.

Performs marine and environmental studies, federal aid
programs for fish and wildlife restoration, technial
management assistance, and fishery resear Prepared
seven volume.Nati-6--n-if Estuary tu y.

National Park Service:

Activities related to coastal water management include
administration of National'Lakeshores, National Seashores,
and coastal recreation areas. The;@_e-are often focal
points for coastal water activities.

U.S'. Geological Survey:

See Director to U.S. Geological Survey Program Activities
in Coastal Areas 1974-76 for full description.

Administers OCS activities once BLM has leased.

Extensive research, including identification of possible
submerged lands toxic substance disposal sites.

Department of Transportation

Coast Guard:

Primary law enforcement agency in coastal and ocean waters.

Has enforcement or other responsibilities under Ocean
Dumping Act (MPRSA), Dangerous Cargo Act, Ports and Water-
ways Safety Act,.Tanker Act, OCS Lands Act, Fishery Con-
servation and Management Act, Federal Water Pollution
Control Act amendements of 1972.

Marine safety and rescue operations.

Maintain navigation aids including LORAN.

Control of ships in harbors, channels, and at deepwater
ports.

Icebreaking activities.

Land, air, and sea patrols.

Distributes' Notice to Mariners and other publications.

Operates a Pollution Incident Reporting System.

Maintains a strike force and special oil pollution clean-
up equipment, as part of National"Contingency"P'lan (FWPCA).

Development of standards for design, construction, alter-
ation, repair, maintenance, and operation of vessels and
deepwater ports.

Office of Pipeline Safety:

Establish and enforce standards necessary to insure safe
construction and operation of offshore pipelines used to
transport hazardous materials, such as natural gas, petro-
leum, and petroluem products, to shore facilities.

Energy Research and Develop_ment Administration

Undertakes extensive research and development in matters
related to energy. May have major impact upon coastal
water management.

Maintains a Marine Sciences Program (Division of Bio-
medical and Environmental Research) - conducts research
,on energy related environmental effects in marine environ-
ments.

Currently funding a Seabed Emplacement Program that seeks
to find an undisturb environment in whic-R-R-gh-level
nuclear wastes could be contained for several thousand
years.

Environmental Protection Agency

Principal Legislation:

Federal Water Pollution Control Act

Clean Air Act
Marine Protection, Research and Sanctuaries Act

- 78 -

Principal Activities:

Regulation of ocean dumping.
Establishment of national air and water quality standards.
Regulation ofeoastal Water outfa-11s.
Administration of 208 areawide water quality programs.
Oil and hazardous materials spill research.
Extensive research on marine ecosystems, impacts of
activities upon marine environment.

Federal Energy Administration

Under mandate of the Federal Energy Administration Act of
1974, FEA is directed to f rmulate and implement national
policy on energy supplies and distribution.

Proposed reorganization may shift FEA, ERDA, and NRC.
Presently FEA decisions could determine what energy devel-
opments occur in coastal and ocean waters.

Federal Power Commission

Federal licensing and regulatory authority for interstate
activities of natural gas and electric power operations,
including LNG facilities. OCS Lands Act gives FPC
certain authority over OCS gas lines. Recently sponsored
a study on coastal location of LNG plants in the northeast
United States.

National Aeronautics and Space Administration

Extensive research on use of remote sensing for development
of marine-related research.
Research on application of NASA management techniques to.I,.jC4--
OCS leasing,and development regulations. V'.00
Development of SEASAT-A satellite to test remote sensing
and data sysem capabilities to collect information on
global marine environment.
&ffiA "A

79 -

Nuclear Regulatory 'Commission

Licensing of shore and offshore nuclear power systems,
general regulation of nuclear power industry, and of
unclear waste disposal, including, potentially, in
coastal waters (see Chapter Four).

- 80 -

RECOMMENDED READINGS

1. General Accounting Office. Federal Agenc .1.e.sAdministering
Programs Related to Marine Science Activities'and
Oceanic Affairs. February, 1975.

2. Bureau of Coastal Zone Planning. An Overview of Existing
Government Roles 'and Responsibilities. State of
Florida. January, 1977-.

3. National Marine Fisheries Service and U.S. Fishand Wild-
life Service. Living Coastal Resources. Office of
Coastal Zone Management. July,, 1976.
C0 Marcus, Philip A., Editor. Directory to U.S. Geological
Survey Program Activities in Coastal Areas 1974-
U.S. Government Printing Office, 1976.

PART THREE

COASTAL WATER USES AND ACTIVITIES

INTRODUCTION

CHAPTER FOUR:
.>OCEAN DUMPING

CHAPTER FIVE: FISHERIES MANAGEMENT

CHAPTER SIX: NATIONAL DEFENSE

CHAPTER SEVEN: ---)DEEPWATER PORTS

CHAPTER EIGHT: TANKER SAFETY

CHAPTER NINE: LIQUEFIED NATURAL GAS

CHAPTER TEN: OCS OIL AND GAS DEVELOPMENT

- 82 -

COASTAL WATER ACTIVITIES

INTRODUCTION

Use of coastal and ocean waters is increasing, and the

objective of comprehensive coastal water use management is to

coordinate these uses in ways that will protect the resource

base and minimize user conflicts. Chapters Four through Ten

describe specific coastal water activities, providing an

initial discussion of how these might relate to a state's

coastal management program.

These descriptions are introductory in nature: each

warrants a full document. An effort has been made to incorpor-

ate the most recent legislation andregulations, and in most

instances the discussions cover developments through early

spring, 1977. However, major changes in either agency regula-

tions or congressional legislation are pending, and the entire

field of ocean and coastal management is at a point of change.

Readers are both cautioned and urged to make direct contact

with the agencies and programs identified in these discussions

for updated and more complete information.

Each of these activities was chosen for discussion because

it is already or will soon be a matter of concern for several

coastal states. Each issue also allows a further consideration

of the nature and difficulties of state/federal responsibilities.

National defense is discussed for these reasons, but also because

to date it has not received sufficient attention in the planning

literature.

I As each activity, with its specific management problems,

information needs, and federal leg islation, is examined, the

reader is urged to keep in mind the idea of attempting to inte-
grate each of the@e into a single management program. This

integration, which has not taken place at the federal level,

is both the opportunity and the task of states implementing

coastal water management concepts under the Coastal Zone Manage-

ment Act.

- 84 -

CHAPTER FOUR

OCEAN DUMPING

PRINCIPAL AGENCIES: U.S. ENVIRONMENTAL PROTECTION
AGENCY

U.S. ARMY CORPS OF ENGINEERS

U.S. COAST GUARD

PRINCIPAL LEGISLATION: MARINE PROTECTION, RESEARCH
AND SANCTUARIES ACT

FEDERAL WATER POLLUTION CONTROL
ACT

RIVERS AND HARBORS ACT OF 1899

- 85 -

OCEAN DUMPING

Historically, coastal waters have been used for the

disposal of a wide variety of noxious, hazardous, or toxic

materials. The oceans and coastal waters have also been

routinely used to dispose of materials such as dredge spoil

which due to sheer bulk, represent major disposal problems in

terms of costs of transportation and location of acceptable

sites. As mentioned in Chapter One, a major difference between

coastal lands and coastal waters is in the lack of immediate

visibility of the impacts of human use of Qoastal waters com-

pared to use of land areas. It is in part because the coastal

lands have been increasingly developed for a variety of human

uses that coastal waters are sought as a site for dumping.

Water disposal frees valuable land fbr-other uses and tends to

avoid nuisance or hazard conditions in major population areas.

in most instances, it also saves a considerable amount of money.

Waste is transported by surface vessel to some coastal water

or ocean site and "dumped," without concern about burial,

further treatment, or surface restoration, as is often required

for landfill sites.

The use of coastal waters for waste disposal represents a

series of management issues which will become more complex as

coastal water use increases for a variety of other purposes.

in effect, the use of coastal waters for waste disposal is an

allocative decision on how the assumed assimilative capacity

86 -

of coastal waters will be used, and consequently how surface,

water column, and submerged lands shall be used. As recent

studies and growing conflicts suggest, coastal.waters may not

have the assimilative capacity that was one assumed, and if
such a characteristic does exist, it is not being used properly. 2

Waste disposal within coastal waters includes the use of

coastal wat ers for sewage outfalls, as well as for heat disposal

from power plants and other industrial activities. For the

purposes of this discussion, waste disposal shall be primarily

confined to the more specific activities of "dumping," especially

of sewer sludge, dredge spoil, industrial waste, or military

ordinance.

Increase in Amount of Ocean Dumping

The use of coastal and ocean waters for the disposal of

wastes has greatly increased in recent,years. In the early

1950's some 1.7 million tons of industrial wastes, sewage

sludge, solid wastes and construction and demolition debris was

being dumped into the oceans each year. Added to that were

several million tons of dredge spoil. By the mid-1960's this

amount had expanded to 7.4 million tons a year, for an estimated
increase of 335 percent. 3 In 1975, over 5 million tons of

sludge was dumped into the ocean, along with 3.4 million tons
of industrial waste.4 At the present time the city of Phila-

delphia is permitted to annually dump 120 million pounds of

- 87 -

solids and an unlimited amount of liquids as part of its sewage

sludge disposal program.

The forces that have led to increased ocean dumping help

to define the management task facing coastal managers. The
Library of Congress, in its study of ocean dumping 6 suggec-Fc

four primary reasons for dumping increases:

1. There was a widely held perception, which to some
degree continues today, that the ocean can serve
as a vast ultimate sink for wastes. This view gave
rise to the assumption that the ocean was a "safe"
disposal site able to dilute and absorb otherwide
harmful material.

2. Between 1930 and 1970 the population within coastal
areas approximately doubled. This growth of popula-
tion and associated land development led to the gen-
eration of tremendous amounts of solid waste. At the
same time this growth reduced the amount of land
available for landfill disposal methods.

3. Since the late 1960's there have been growing numbers
and types of controls upon air and water discharge.
This has led to:
a. A transfer of waste disposal processes to coastal
and ocean dumping, transfering pollution from one
medium to another rather than eliminating it, and
b. Pollution controls have themselves expanded the
amount of waste needing disposal. Seqage treatment
has generated more sewage sludge, and stack scrub-
bers collect large amounts of fly ash. Both of
these are bulky wastes that require some type of
disposal.

4. Until 1972 there was no federal regulation of ocean
dumping. In many instances this encouraged use of 7
ocean dumping over other methods of waste disposal.

What is Being Dumped

Under the Marine Protection, Research, 'and Sanctuaries

Act (MPRSA) a permit is required to dump any material into

coastal waters. The Federal Water Pollution Control Act

Amendments of 1972 provide additional controls over discharge

and also require a permit. Thus in theory, there is a mechan-

ism for complete inventory and control over what is dumped into

coastal and ocean waters.

But to monitor the territorial seas, much le ss the oceans

beyond, is an immense task, and in reality it is probable that

ocean dumping is not fully monitored or inventories. The

General Accounting Office (GAO) recently estimated that about

one-half of all ocean dumping occurs at night. Yet because of

a shortage of personnel and the importance of other missions,
the Coast Guard at this time does not conduct night surveillance.8

The GAO report also contends that the Coast Guard check

few boats for permits, and that in fiscal 1975 less than one

percent of 6,038 dumpings of substances other than toxic chemicals
were actually observed.9 An electronic Ocean Dumping Surveillance

System (ODSS) that would transmit actual vessel location and

time of dump from a vessel to district Coast Guard offices is

being tested at this time. If successful, it would greatly

assist, although not fully solve, the task of 24 hour monitoring

of dumping.

Coastal states rarely have the resources to effectively

monitor all ocean dumping. Unless and until there is a compre-

89 -

hensive federal monitoring program there can be no assurance

that materials are being dumped where they are supposed to,

and no accurate information on how much of what is actually

entering coastal waters.

Effect of Dumped Materials Upon Coastal Environment

The Council on Environmental Qualityf in its 1970 study
of ocean dumping 10 suggested that seven major areas required

further research:

Development of effective national and international
pollution monitoring system.

Development of alternatives to ocean dumping.

Ecological research on pathways of waste materials
in marine ecosystems.

Preservation and study of representative ecosystems..

Oceanographic studies of physical and chemical
processes.

Identification of marine pathogens in marine ecosystems.

Identification of toxic materials and investigations
of the lethal, sublethal, and chronic long-term effects
on marine life.

According to the 1976 Library of Congress study, "no coherent
plan for ocean dumping research exists." 11 Basic questions

such as the relative merits of land versus water disposal, or

of near-shore versus deep ocean disposal, apparently cannot be

answered with any degree of certainty at this time. As EPA

officials have testified:

Locating all disposal sites arbitrarily off the edge
of the continental shelf may result in large expen-
ditures which do not achieve environmental benefits.
Disposal of some types of waste at such sites may
possibly cause greater adverse impact than the use
of sites closer to shore. There is no scientific
justification at this time for imposing such a restric-
tion on ocean dumping site location.12

Where to Dump

As the above quote indicates, it is not clear at this

time what constitutes a "best" coastal or ocean dump site.

During 1976 pressure intensified for the relocation of ocean

dump sites off the.coast of New Jersey into deeper waters, in

the hope that greater distance might decrease the number of

fish kills and beach pollution problems.

Section 102(a)(1) of the Marine Protection, Research and

Sanctuaries Act requires the Administrator of EPA, in regulating

ocean dumping, to "utilize wherever feasible locations beyond

the edge of the continental shelf." This might damage major

offshore fishing grounds, such as Georges Bank. Also, such

requirements might significantly increase the cost of ocean

dumping. To the degree that ocean dumping is a necessary or

allowable use, this may be a major consideration. Also, there

may be some advantages in allowing dumping closer to shore, even

though it might increase the potential for coastal water disrup-

tions:

- 91 -

a. Enforcement of dumping in deep ocean waters may
be virtually impossible, due to costs involved.

b. Monitoring, not just for enforcement purposes, but
in order to gather more information on coastal
water impacts of ocean dumping, may be enhanced
at nearshore locations.,

What Has Already Been Dumped, and Where* is it Now

Until the passage of the MPRSA and the FWPCA, the primary

control over ocean dumping was to prevent navigational hazards,

under authority of the U.S. Army Corps of Engineers. In most

instances permits were not required, and the use of coastal and

ocean waters for dumping has in many instances been a principle

historic coastal water use. For example,.sewage sludge has been
dumped at one location in the New York Bight for over 50 years. 14

As Wesley Marx suggests in The Frail Ocean, dumping operations

must in the future be "charted, plotted, and predicted as care-

fully as shipping operations."

Examples 16

When the Air Froce cancelled its Navaho missile contract

with North American Aviation Corporation, it advised North

American to dump its remaining rocket engines in the ocean.

These one-story high structures now represent a hazard to

commercial fishing nets and to research vessels dragging expen-

sive test equipment.

In 1965 a Texas chemical company dumped sixteen drums

of sodium oxide residues twenty miles out in the Gulf of Mexico.

Seven of the drums returned to shore, propelled by on-shore

currents, and exploded on the beach in the city of Galveston,

Texas.

While fishing on the outer banks off North Carolina,

Captain Doody of the commercial fishing boat Snoopy hauled up a

bomb left from a practice bombing run. As another nearby boat

reported, there was a terrible blast and "the Snoopy was just
gone." 17

In 1961 the Collier Chemical and Development Company

leased the 40-mile bank off the coast of California from the

Department of Interior with the intention of mining deposits

of phosphate nodules with a hydraulic dredge. it discovered

that there were "unexploded naval projectiles" over large

portions of the ocean floor in the lease area, and that the only

feasible way of mining was to first remove the'unexploded

shells. Finding this to be economically prohibitive, the company

eventually obtained a refund.

In August of 1975 EPA coordinated a survey of the

Pacific Farallon Islands 1700 meter (5300 feet) radioactive

waste and munitions dump site located some 40 miles west of

San Francisco., California. It is estimated that more than

40,000 steel drums filled with concrete in which radioactive

waste was mixed and solidified were dumped at this site. Of

the containers examined, some showed evidence of hydrostatic.

implosion and plutonium-238, and plutonium-239, 240 contamina-

tion was discovered in the surrounding sediment at levels

2-25 times greater than expected. A similar investigation of

the "106 mile site" off the Maryland-Delaware coast, where an

estimated 14,000 drums of low-level radioactive waste were

dumped from 1951-1962 indicated levels of Cesium-137 at

concentrations 3-70 times higher than expected. There is

evidence to suggest that the material may be leaching out of

the concrete matrix rather than simply leaking from breached
containers. 18

So long as there are materials within or beneath coastal

waters which obstruct or endanger other coastal water uses, this

heritage from historic patterns_of dumping represents a major

impediment to increased economic development of coastal resources.

In some instances the probable site of obstacles or hazards can

be mapped by tracing through records that-public or private

agencies might make available. But in some instances records

may not exist, or may be difficult to obtain for reasons of

security or out of concern over possible liability.

Current Regulations for Ocean Dumping

At the present time there are three basic sources of regu-

lation of ocean dumping. These are:

- 94

1. The International Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other
Matter.

2. The Federal Water Pollution Control Act Amendments
of 1972.

3. The Marine Protection, Research*and Sanctuaries Act
of 1972.

International Convention on the Prevention 'of Marine'Pollution
by Dumping of Wastes and Other Matterl@f

This international agreement became effective in August,

1975. Formulated in 1972, the Convention establishes a three-

part regulatory system.

Annex I ("Black List"): Prohibits dumping of certain

substances from vessels, aircraft, platforms or other man-made

structures, including high-level radioactive waste and chemical

warfare materials.

Annex II ("Gray List"): Requires a special permit to dump

heavy metals, cyanides, fluorides, low-level radioactive wastes

and other listed materials.

A general permit is required to dump wastes not listed in

either Annex I or Annex II.

The Marine Protection, Research and Sanctuaries Act was

amended in 1974 to make it more consistent with,this Convention,
20
and new regulations issued by EPA for both the MPRSA and the

FWPCA attempt to make all three approaches consistent.

95 -

The Federal Water Pollution Control Act Amendments of*1972

As stipulated in Section 307(f) of the Coastal Zone

Management Act, this legislation Vill be the source of all state

water quality standards within its coastal management program.

Section 403 and Section 404 relate specifically to ocean dis-

charge and dumping.

Section 403 (Ocean Discharge Criteria).regulates discharge

of nondredged materials from on-shore outfall pipes, from all

point sources out to three miles, and from point sources other

than vessels or floating craft out to 12 miles.

Section 404 requires the Environmental Protection Agency

to establish regulations for dumping of dredge spoil, and

authorizes the Secretary of the Army, acting through the Corps

of Engineers, to issue permits for the discharge of dredged or

fill material. Regulations for Section 403 are undergoing exten-

sive revision as of this writing, and should be watched for by

coastal managers. Regulations for Section 404 of the FWPCA and

for the MPRSA were significantly revised by EPA and issued in
the Federal Register on January 11, 1977. 21

Marine Protection, Research and Sanctuaries Act (Ocean Dumping
Act)

This is a key act for coastal water use management. Title I

establishes a basic regulatory mechanism for the control of ocean

- 96

dumping. Title II-requires increased research on ocean dumping.

Title III establishes a mechanism for creating Marine Sanctuaries.

Title I of the MPRSA and Section 404 of the FWPCA are

administered under regulations published by the U.S. Environmen-

tal Protection Agency on January 11, 1977. These regulations

establish a comprehensive management system for the control

of ocean dumping, and to a large extent have the effect of

being the dumping regulations to be used by states in their

coastal water use management efforts.

What Can Be Dumped 'in Coastal'Waters

The Environmental Protection Agency (EPA) has stated

that its objective is to "eliminate ocean dumping of unaccep-
table material as rapidlyas possible." 22 The question of

what is possible and what is unacceptable remain issues of

great importance, and have been the subject of a law suit

brought against EPA by the National Wildlife Federation.

The actual criteria used by EPA in evaluating permit

applications is contained in Section 227 of the new regulations.

In establishing those criteria, the EPA Administrator is required

under Section 102(s) of the MPRSA to consider the following

factors:

A. The need for the proposed dumping.

B. The effect of such dumping on human health and wel-
fare, including economic, esthetic, and recreational
values.

C. The effect of such dumping on fisheries resources,.
plankton, fish, shellfish., wildlife, shore lines
and beaches.

D. The effect of such dumping on marine ecosystemst
particularly with respect to:
(i) The transfer, concentration, and dispersion of
such material and its byproducts through bio-
logical, physical, and chemical processes;
(ii) Potential changes in marine ecosystem diversity,
productivity,, and stability; and
(iii) Species and community population dynamics.

E. The persistence and permanence of the effects of the
dumping.

F. The effect of dumping particular volumes and concen-
trations of such materials.

G. Appropriate locations and methods of disposal or
recycling, including land-based alternatives and the
probable impact of requiring use of such alternative
locations or methods upon considerations affecting
the public interest.

H. The effect on alternative uses of oceans, such as
scientific study, fishing, and other living resource
exploitation, and non-living resources exploitation.

I. In designating recommended sites, the Administrator
shall utilize wherever feasible locations beyond the
edge of the continental shelf.

This regulatory system represents a major tool for state

coastal water use management, even though its administration is

carried out through the Environmental Protection Agency and the

Corps of Engineers. EPA is given authority to control dumping

that individual coastal states, through their coastal zone

management programs, might not have full control over. And

98 -

the burden of issuing permits, monitoring activities and

enforcing the law is payed for and administered by federal

rather than state agencies. But at the same time a major

.portion of coastal water use management is outside of direct

state control.

State Authority to Regulate Ocean Dumping

Under the Coastal Zone Management Act, states are encour-

aged to formulate comprehensive coastal water use management

plans that include descriptions of permissible uses, areas of

particular concern, and which allow new use of coastal water

resources while protecting natural coastal.systems and existing

uses. As described in Chapter Two, the Submerged Lands'Act

provides coastal states with a considerable authority over the

submerged lands and water resources of the territorial sea.

However, that authority is not absolute, and ocean dumping is a

particular instance in which Congress appears to have preempted

state authority. The Marine Protection, Research and Sanctuaries

Act of 1972 is quite specific on this matter. Section 106(d)

allows the EPA Administrator to consider suggestions from coastal

states, but this is not mandatory, and the states are apparently

precluded from regulation of ocean dumping.

Section 106(d): After the effective date of this title,
no 'state shall adopt o... enforce a.ny rule or regulation
":@e-iating to any activity regulated by this title. Any
state may, however, propose to the AIR-nistrator cri-
teria relating to the dumping of materials into ocean
waters within its jurisdiction, or into other ocean

- 99 -

waters to the extent that such dumping may affect
waters within the jurisdiction of such state, and
if the Administrator determines, after notice and
,opportunity for hearing, that the proposed criteria
are not inconsistent with the purposes of this
title, may adopt those criteria and may issue regula-
tions to implement such criteria. (emphasis added)

Consistency

Section 307(c)(1) of the Coastal Zone Management Act,

as amended, requires that:

Each federal agency conducting or supporting
activities directly affecting the coastal zone
shall conduct or support those activities in
a manner which is, to the maximum extent prac-
ticable, consistent with approved state manage-
ment programs.

This would appear to apply to such activities as dredge spoil

disposal or the issuance of permits for waste disposal either

in coastal waters or in ocean waters to the degree that such

dumping would directly and significantly affect coastal waters.

Section 307(c)(3) of the CZMA suggests thatEPA could not

issue a permit for Ocean Dumping if it were to have a direct

and significant impact upon coastal waters and also be incon-

sistent with a state's program. Designation of dump sites and

standards for disposal would also fall under the consistency

provisions of the Coastal Zone Management Act.

This federal preemption may represent a major problem.

Many coastal states,currently have some set of regulations

regarding dredge spoil disposal and these may conflict with the

- 100

prohibitions of the MPRSA. Oregon has recently encountered

problems of this,sort, and Massachusetts, as described in a

following example, may also have future problems. Furthermore,

EPA has made an initial claim to the Office of Coastal Zone

Management that the Section 106 provisions of the Marine Protec-

tion, Research, and Sanctuaries Act preempt not only state

regulation, but also the consistency provisions of the Coastal

Zone Management Act. While it is difficult to sustain such an

interpretation of either the Coastal Zone Management Act or the

MPRSA, this does indicate that EPA is serious about its authority

and that coastal states should carefully examine their present

regulations.

However, there is also reason to question the necessity

and even the constitutionality of the Section 106 provisions.

Congressional adjustment or court declaration may be necessary

to clear up this situation. If states were in fact precluded

from regulating dumping in either coastal or adjacent ocean

waters, they would also be precluded from implementing compre-

hensive coastal management programs.

Dredge Spoil Disposal

The U.S. Army Corps of Engineers is given principle

authority over the regulation of ocean disposal of-dredge spoil

within coastal waters through Section 103 of the Marine Protec-

tion, Research, and Sanctuaries Act (MPRSA) and Section 404 of

the FWPCA. Through Section 102(a) of the MPRSA, the Environmental

101

Protection Agency also plays an important role in establishing

standards.

While ocean disposal of, sewage'sludge has been confined

to the Atlantic coast, the use of.coastal or ocean waters for

other...forms of waste disposal, such as fordredqq,,spoil, is

common in all coastal areas. Water disposal of dredge spoil

has greatly increased in recent years. As cited in a recent

Library of Congress study of ocean dumping, the U.S. Army Corps

of Engineers (COE) is increasingly moving towards coastal or

ocean dumping rather than land disposal or the use of inland

waterways. The reasons are similar to those motivating use

of ocean waters for the disposal of other substances:

"We find that upland areas are no longer available
due to the growth of the city surrounding the port;
open water disposal in inla 'nd areas is being resisted
actively.by environmental interests . . . ; (and thus,
ocean dumping appears the only feasible alternative
available to local ports."

In 1975, an estimated 87,826,362 cubic yards of dredge

spoil was dumped in coastal and-ocean waters. There is often

an annual variation in amount that depends in part upon available

COE funds and upon the degree of flooding or sedimentation that

occurs in a given year. If coastal water uses such as recrea-

tional and commercial fising are to increase, more dredging

can be anticipated, and with it the need to dispose of more

spoil, beyond 1975's total.

If dredge spoil is taken any distance from the site of

dredging, major transport-costs may be incurred. This can

- 102

effect a-favorable cost-benefit ratio and lead to the rejection

of a federally funded maintenance program that could have nega-

tive impacts for commercial or recreational uses of coastal

waters. And, if improperly dumped, dredge spoil will drift,

re-clogging channels, burying habitat areas, or otherwise adversely

affecting marine resources. Toxic components of dredge spoil

could harm living aquatic resources, and the Corps estimates in

1968 that approximately 34 percent of the spoil dumped that year

was "polluted."

On-land disposal could solve several water-dumping issues,

but generates a whole set of new concerns. Included is the

possibility that the spoil will leach or wash back into coastal

waters. Shore habitat, recreational opportunities, and

possible groundwater contamination are other concerns that

often make land disposal technically, economically, or politi-

cally difficult.

The Corps may soon discover that as comprehensive water

use management programs are developed as part of a state's coastal

zone management effort, and as the variety and intensity of

coastal water use grows, it may be as difficult to find water

disposal sites for dredge spoil as it has become on land. A

case in point is the recent Browns Ledge controversy in

Massachusetts.

- 103

Case History: Browns Ledge, Massachusetts

-To improve access to the harbors of Fall River, Massachu-

setts and Providence, Rhode Island the Corps of engineers has

developed channel-deepening projects in Mount Hope and Narran-

gansett Bays. Previously, Brenton Reef at the mouth of Narran-

gansett Bay had been used as a spoil disposal site. Due to

opposition which the Corps has identified as being "political

and ecological," a new disposal site, Browns Ledge, was

designated.

The material to be dumped contains industrial chemicals,

oil, gas, and heavy metals such as lead and.mercury. Browns

Ledge serves as a spawning habitat for lobsters, fin and shell-

fish, and also serves as a migratory station for various finfish.

The Corps suggested that tides and currents would tend to prevent

toxic elements from settling on the ledge, and offered as a

preventive management strategy the imposition of a ban on fishing

near the area.

When the Corps held public hearings on its draft environ-

mental impact statement, it received strong opposition from

fishermen and other groups. The basic points were that (a) it

appears to some people that the Massachusetts site was chosen

because Rhode Island no longer wanted its coastal waters used

for dumping, and (b) because of the polluted nature of the dredge

spoil, considerable damage might be done to finfish and shell-

fish stocks, as well as possibly creating a human healh hazard

if the Browns Ledge site was chosen.

- 104

Governor Dukakis of Massachusetts protested by letter to

the Corp's regional headquarters in Boston. The governor cited

several issues he felt the EIS has not adequately considered,

including the possible impacts ofheavy metals and chlorinated

hydrocarbons on the marine-environment and the possible drift

of polluted sediments to the Elizabeth Islands and Martha's

Vineyard shores during severe storm tides. The Governor con-

cluded by suggesting that the selection of the Browns Ledge

site appeard to be primarily an expedient solution based upon

political considerations.

The Massachusetts legislature supported the protest by

enacting a new state law(Massachusetts General Laws, Chapter

347, Acts of 1976). This law was specifically designed to

fleffectively negate" the Corps Browns Ledge proposal. But it

.also goes beyond that particular issue and establishes a general

mechanism for state review and final decision upon proposed

waste disposal in Massachusetts coastal waters.

The principal provision of the law is to give the Massachu-

setts Department of Environmental Quality Engineering exclusive

power to issue permits for waste disposal in Massachusetts

waters. As of this writing, it is not yet clear how this law

will be affected by Section 106(d) of the Marine Protection,

Research, and Sanctuaries Act o-f 1972 which states that:

"After the effective date of this title, no state shall
adopt or enforce any rule or regulation relating to any
activitiy regulated by this title . . . .

- 105

Finding an acceptable site for the disposal of large

amounts of material, often contaminated in some way, will be

increasingly difficulty. Yet if coastal water use is to expand,

some solutions must be found, since dredging will be an essential

adjunct to either recreational or commercial use. If states

establish comprehensive management programs for their coastal

waters, which include habitat protection, water quality enhance-

ment, and economic development, then perhaps "best" sites for

various activities, including dredge spoil disposal,:can be more

convincingly designated.

106

FOOTNOTES

1. CEQ. Ocean Dumping: A National Policy. Washington,
D.C., 1970.
Library of Congress. Ocean Dump. i.n.g.Regulation:' An
Appraisal of Implementation. National Ocean Policy
Study, WasfFington, D.C. April,.1976.
General Accounting Office. (Not yet available.)
Washington, D.C. January, 1977.

2. See cases cited under Fisheries Section as an example.

3. CEQ Reportf p. 1.

4. Conservation Report, January 28, 1977. National Wildlife
Federation.

5. National Fisherman, January 1977, p. 17-A.

6. Ocean Dumping Regulation (see citation number 1 above).

7. Ibid., pp. 1-2.

8. Conservation Report, January 28, 1977, p. 53.

9. Ibid.

10. See citation number 1 above.

11. Ocean Dumping Regulation, p. 74.

12. Ibid., p. 79.

13. Ibid.

14. Ibid., p. 15.

15. Marx, Wesley. The Frail Ocean. Ballentine, New York, 1969.
P. 78.

16. These examples are cited by Marx in The Frail Ocean. For
a discussion of impacts see Chapter Five.

17. Ibid., p. 77.

18. Environmental Protection Agency. Ocean Dumping in the
United States - 1976. WashingE-on, D.C. June, 1976,
pp. 30-33.

- 107

19. Much of this discussion is based on CEQ's Ocean'Dumping
Regulation.

20. Federal Register, January 11, 1977. Citation is now
40 CFR 220-227.

21. Environmental Protection Agency. Ocean Dumping:' Final
Revision of Regulations .. and Criteria. Federal Regis-
ter, January 11, 1977.

22. Ibid., p. 2462.

23. DuBrul, Paul A. "Contrary to Popular Belief, You Can't
Eat that Sludge," in Planning, American Society of
Planning Officials. August, 1976.

24. Brown, Philip M. and Reid, Marjorie S. Geological Eval-
uation of Waste-Storage Potential in Selected Segments
of the Mesozoic Aquifer System Below 'the Zone of
E
Fresh Water, Atlantic Coastal Plan, North Carolina
through New Jersey. U.S. Geological Survey, 19
(U.S. GovernmeFt-Printing Office, #024-001-02738-1).

108 -

RECOMMENDED READINGS

1. Gross, M. Grant. Waste Disposal: MESA New York Bight
Atlas Monograph 26. New York Sea Grant Institute,
Albany, New York. July, 1976.
This is an excellent report upon dumping in the New York
Bight area. It indicates the degree to which historical
information can be used to determine what has been
dumped, and the variety of inputs to many urban water
areas.

2. Environmental Protection Agency. Ocean'Dumpinq in'the
United States - 1976. Washington, D.C. June, T9_76.

3. Congressional Research Service. O'cean-D-umping Regulation:
An Appraisal of Implementation. U.S. Government
Printing Office. April, 1976.

4. Environmental Protection Agency. .Ocean Dumping:' Final
Revision of Regulations and Criteria. Federal Regi-
ster, January 11, 1977.

109

CHAPTER FIVE

FISHERIES MANAGEMENT

PRINCIPAL AGENCIES: NATIONAL MARINE FISHERY
SERVICE (NOAA)

U.S. FISH AND WILDLIFE SERVICE
(INTERIOR)

PRINCIPAL LEGISLATION: . FISHERY CONSERVATION AND MANAGE-
MENT ACT OF 1976

� FISH AND WILDLIFE COORDINATION
ACT

� ANADROMOUS FISH CONSERVATION ACT

� COMMERCIAL FISHERIES RESEARCH
AND DEVELOPMENT ACT OF 1964

� MARINE MAMMAL PROTECTION ACT OF
1972

110 -

Fisheries and fish stock management have a key role in

coastal water use managembnt considerations. Today the United
States consumes some 7 billion pounds (round weight) of fish.1

This represents a fifty percent growth in consumption since

1960, and it has been estimated that consumer demand may increase
by as much as 2.3 billion pounds (round weight) by 19852

leading to an annual consumption level of 9.3 billion pounds.

Yet during this period of growing demand for fish products,

the United States domestic commercial fishing industry, with

the exception of the shrimp, tuna, king crab, salmon, and

menhaden fleets, has generally remaind undeveloped or has

deteriorated. Processors have been forced*to rely more and
more on imports to meet demand.3

It is estimated that U.S. coastal waters (within 200 miles)

can yield between 20 and 40 billion pounds annually on a sustained
basis.4 But today these waters face a number of pressures which

endanger not only this estimated level of sustained yield, but

also threaten the survival of some fish species. For example,

while U.S. domestic landings have generally remained at under

5 billion pounds per year (4.7 billion pounds in 1973), the

catch of foreign fleets within U.S. coastal waters (including

200-mile zone) has expanded to the point where the foreign

5
catch reached an annual level of 7.9 billion pounds in 1972.

At the present time there is interest in the establishment

of a comprehensive national fisheries management program. Several

congressional studies have led to the passage of the Fishery

Conservation'and management*Act of''1976, which creates eight

regional councils to develop comprehensive fisheries management

plans (further description follows). Furthermore, Section 16

of the Coastal''Zone Management Act Amendmehts-of*1976 (PL 94-

370) requires the Secretary of Commerce to undertake a compre-

hensive review of the molluscan shellfish industry and to pre-

sent a report to Congress by April 30, 1977. In 1976 the Depart-

ment of Commerce published A Marine Fisheries Program 'for the

Nation, which advocates a six point national program for fisheries

conservation and improvement.

Much attention has been given to the new fishery conservation

zone (extended jurisdiction) that went into effect on March 1,

1,977. There is considerable hope that.this mechanism for con-

trolling foreign fishing pressures with-in 200 miles of United

States shores will protect declining commercial stocks And

strengthen the domestic fishing industry. The planning for this

zone, under the Fishery Conservation and Management Act of 1976,

may represent the first comprehensive national fishery program.

If there is movement towards a national fishery management

program, each coastal state is still challenged with major tasks

and opportunities within its coastal waters. Much of the prime

habitat areas, as well as many of the shore and water activities

that can or do conflict with fisheries, are located within the

territorial sea.

Control of foreign fishing vessels and the establishment of

fishery quotas to insure sustained yield harvesting will be of

112 -

little long-range.value if the quality of coastal waters deter-

iorates to the point where a healthy fishery cannot be supported.

In recent years there has been strong evidence that the living

resources of coastal waters are seriously endangered.

Problems of Pollution

Coastal fisheries are in serious difficulty. This is a

result of not only excessive fishing pressures, but also because

the coastal waters upon which the fish resources are dependent

have in recent years become contaminated with a variety of toxic

substances. These substances have either directly killed or

damaged the fish stocks, or made finfish and shellfish unfit for

human consumption.

In May of 1971 the Federal Food and Drug Administration

advised the public to stop eating swordfish, because more than

90 percent of its samples showed a mercury content of more than

0.5 parts per million. Although that action by the FDA remains
a matter of controversy 6, it was just the first in a series of

pollution-related incicents. A listing of some of these occur-
ances during 1916 and early 1977 indicates the seriousness and

complexity of protecting living resources in coastal waters.

1. In 1976 the New York State Department of Environmental

Conservation discovered high levels of Mirex and PCB's in Lake

Ontario. In September of 1976 the state warned Lake Ontario

fishermen not to eat salmon, lake trout*,'brown bullhead"s, cat-

fish, smallmouth bass,*or'eels. State plans to construct a new

113

$lb million salmon and trout hatchery generated considerable

controversy when it became clear that the fish would become
contaminated upon release. 7 Similar findings of fish contamina-

tion, as well as controversy over increased fish plantings occurred

in Michigan where fishermen were advised not to each salmon more

than once a week and the director of the Department of Natural

Resources decided not to expand the s almon program as had been

proposed.

2. On January 14, 1977 the National Sea Clammers Associa-

tion filed a $250 million class-action suit in federal court on

behalf,of clammers, lobstermen and fishermen charging that various

officials of New York City, New York State, the state of New

Jersey, the Army Corps of Engineers, and the Environmental Pro-

tection Agency were negligent in allowing the pollution of a

large area of Atlantic coastal waters which resulted in the loss
of living resources. 8 The suit was based upon occurances during

the summer and fall of 1976 off the north shore of New Jersey,

where there were two major fish kills, causing mortality rates

as high as 50 percent. An algae bloom and anoxic (oxygen deple-

tion) conditions destroyed an estimated $14 to $16 million worth
of finfish stocks and up to $22.5 million of shellfish. 9 Of

particular concern was the possibility that the $50 million surf

clam industry may have received long-range damage since one of

the major kills took place during July, which is the normal

spawning season for surf clams. It is not clear what contri-

bution sewage sludge disposal had upon these kills. However,

114

the evidence is compelling that this important section.of

Atlantic coastal waters is increasingly unable to.sustain fin-

fish or shellfish.

3. On November 16, 1976 a class-action suit representing

some 10,000 persons including crabbers, clainmers,. shell fisher-

men, oyster tongers, seafood wholesalers, boat owners and

restaurant owners was filed against the Allied Chemical Corpor-

ation for some $8.8 billion in damages resulting from the

contamination of the James River.with Kepone in 1975 by a plant
under contract to Allied. 10

4. Studies of oysters, clams and mussels in coastal waters

of Washington, Oregon, Virginia, Delaware, Maryland, Connecti-

cut, Rhode Island, Massachusetts and Maine revealed the presence

of significant numbers of neoplasms (tumors). While these

tumors may not forclose human consumption, they may indicate a

rise in coastal water pollution. One of the researchers involved

in the studies observed that while a decade ago only a few cases

of unusual growth in shellfish were reported, in recent years
they have been counted in large numbers. 11

5. In January of 1977 the New York State Department of

Environmental Conservation began to advise residents on the

north shore of Long Island not to each striped bass or large

bluefish more than once a week, due to elevated levels of poly-

chlorinated biphenyl (PCB). It was emphasized that residents

who had just one meal a,week of bluefish or bass were "perfectly
safe." 12

- 115 -

6. On December 18, 1976 a coalition of fishermen filed

a $60 million class-action suit against the Thebes Shipping

Company, owners of the oil tanker Argo Merchant. Earlier that

week this tanker broke in two on a Nantucket shoal and in the
worst oil spill in the nation's history 13 spilled some 7 million

gallons of Number 6 "Bunker C" fuel oil into the Atlantic Ocean.

A further threat to fisheries management is the continued

destruction of specific habitat areas such as reefs and estuaries,

both of which are vital for feeding or breeding grounds.

Dredging and:filling has led to the loss of an estimated 4 per-
cent of the nation's coastal habitat areas between 1950 and 1969. 14

As the need for dredge spoil disposal sites continues or increases,

combined with a growing interest in the extraction of offshore

deposits of sand and gravel, it is expected that coastal water

habitats will become further endangered.

In attempting to integrate a comprehensive living resource

management program into their coastal waters planning efforts,

the states face a difficult task. Perhaps the greatest difficulty

involved is that demand for the use of coastal waters for a

wide variety of human abtivities is expected to intensify.

These water uses have and will impart changes (both physical and

chemical) upon the coastal water environment. Yet most finfish

and shellfish have a limited ability to survive such changes.

Their survival is primarily dependent upon genetically-based

biological limitations which are not always amenable to human

multiple use management schemes based upon other criteria.

- 116

Case Histories

There are several recent examples of fisheries disputes

or problems that collectively reflect the scope of the coastal

water management task. It is a task'-that involves not only

complex natural systems, but also difficult problems of human

conflict.

1. Jeffreys Ledge, Maine. Jeffreys Ledge is a fertile

fishing ground off the coast of southern Maine which is frequented

by both gillnetters and draggermen. Disputes have arisen

between the two types of fishing, since on occasion gillnets

have been damaged or destroyed by the draggers. This situation

has been complicated by the fact that gillnetters fishing

Jeffreys Ledge tend to reside in Maine, and draggermen fish

out of Gloucester, Massachusetts. The conflicts developed to

the point where the situation was referred to by some as "the

Battle of Jeffreys Ledge."

Resolution: At least for the present this conflict

appears to have been reduced, if-not resolved. The two groups

of fishermen have met, along with observers from various state,

regional and federal agencies, to discuss a fisheries manage-

ment plan for the Jeffreys Ledge area. The plan, primarily an

informal set of agreements between the two groups, includes the

use of mutual radio channels, the preparation and distribution

of charts showing where gillnets are deployed, and the estab-
lishment of a formal mediation arrangement. 15

117

2. Savannah River Shrimp Grounds. The border between

the states of South Carolina and Georgia includes the Savannah

Rivery system, as defined by*thd Treaty of Beaufort in the

18th century. Because the actual location of the Savannah

River has fluctuated over time, both Georgia and South Carolina

claim jurisdiction over a 300 square mile ocean area.

To a considerable extent, the issue is not that of shrimp

harvesting but of jurisdiction. Specifically, the issue is

which state has the authority to control fishing in a particular

coastal water area. South Carolina allows shrimping to start in

late May, while Georgia does not open its season until June.

If the coastal waters in question are under Georgia's juris-

diction, then South Carolina shrimpers are violating Georgia

law-and their boats may be confiscated. If South Carolina con-

trols the area, then Georgia's management plan is voided by the

early fishing allowed under South Carolina regulations.

Resolution: This type of dispute tends to have long

historic roots, and may take some time to resolve. However, it

should serve as a signal to some states to give detailed consi-

deration to the establishment of precise descriptions of its

coastal water boundaries, including not only those between it

and other states, but also at the state-federal interface at

the three mile limit. In some instances state boundaries

other than the landward ones are somewhat imprecise for their

coastal zone. With increased use, conflicts, and opportunities,

the question of which set of regulations will apply may be

118

critical, and as some states have already learned, a matter

of feet and inches can have significant and long-range implica-

tions. The advantages of establishing precise boundaries,

taking whatever actions are necessary, now, prior to expanded
development, cannot be overemphasized. 16

3. California Anchovy Fishery. The California Anchovy

Fishery is under considerable fishing pressure.. The anchovy

is used by sport fishermen for gamefish bait and is taken

by commercial seiners for sale to reduction plants where the

fish are converted into fish oils, fertilizers, and protein

for chicken feed. Californian fishermen, both commercial

seiners and sports fishermen, compete with commercial boats

out of Mexican waters. A new $15 million reduction plant and

fishing fleet in Ensenada, Mexico is expected to further increase

this pressure. .

The California Fish and Game Commission, supported by the

California Department of Fish and Game, regulates this fishery.

In 1976 their regulations included the designation of a fishing

season, which was August 1 to May 15 for a northern area and

September 15 to May 15 for the southern management area. Quotas

were set at 100,000 tons of anchovies for the southern manage-

ment area and 15,000 tons for the northern management area.

The issues facing the California Fish and Game Commission

involve determining how much harvesting the anchovy fishery

can support on a sustained yield basis and how the allowable

catch should be allocated between the two interest groups.

- 119

Commercial seiners desire larger'quotas, claiming that if

California commercial seiner s do not harvest the fish, !@.

they will be caught by Mexican fishermen., since the fishery

extends beyond California coastal waters. Sports fishermen

claim that anchovies are a critical bait species, and that

necessary forage for game fish populations will be depleted

if commercial seininq continues. They further claim that the

current reduction in anchovy stocks is a result of excessive

commercial harvesting.

Resolution: Until such time as marine biologists can

establish the cause of anchovy stock decline, and of sustainable

yields, the merits of either claim are unclear. of importance,

however, in considering the fisheries aspects of coastal water

management is that there are limits as to the number of fish

that can be harvested. The Fishery Conservation and Management

Act of 1976 calls for the protection and improvement of both

commercial and recreational fishing. Yet these two fishing

interests may not always be compatible, just as various forms

of commercial fishing may conflict. Through a formal coastal

zone management mechanism more interactions between land and

water uses and between different coastal water activities can

be accomodated within a given time and space. Yet the biologi-

cal carrying capacity of a particular coastal water system may

be relatively fixed, and is in many instanc es being diminished

by the introduction of pollutants. In some instances, expanded

or protected fisheries may only be possible if'other activities

120

are excluded from coastal waters, or if the fisheries are

managed so as to serve a primary user.group, rather than

attempting to provide multiple use.

4. Virginia Menhaden Fi::5,hery. The state of Virginia

has established regulations over fishing activities in its

half of Chesapeake Bay which include provisions that prohibit

non-U.S. citizens from fishing within the three-mile limit of

coastal waters, and of equal importance, also prohibits non-

resident commercial fishermen from its coastal waters.

As described in Chapter Two, the Submerged Lands Act

appears to give full title over submerged lands and "natural

resources within such lands and waters" within the territorial

sea to the states. However, as the discussion of basic federal

authority attempted to convey, there are several federal powers,

such as those for interstate commercel that can preempt or con-

strain a state action even under the authority granted by the

Constitution, the courts, or Congress.

Seacoast Products, Inc. of Port Monmouth, New Jersey has

taken the state of Virginia to court over the regulations, attemp-

ting to have them overturned. A three-judge federal court

decided that the regulation of aliens was a power reserved to

the federal government by the Constitution, and that the laws are

unconstitutional.

Resolution: The case arose from competition over menhaden

stocks in the Atlantick Ocean and Chesapeake Bay. Several states

have fishing residency laws as one method of regulating access

- 121 -

to coastal residents, these are being challenged as non-residents

attempt to use finite coastal resources. A connected issue is

that of beach access. Many co Immunities prohibit non-resident

use of certain coastal areas,.or charge them a special fee

not applied to residents.

The United States Supreme Court is now considering this

case, on appeal from the lower court decision. Maine, Maryland,

Massachusetts, New York, and Delaware have joined with Virginia

in asking the Supreme Court to review the case, as it could have

great impact upon the present fishery management programs and

future coastal water use efforts of virtually every coastal

state. Possible federal supremacy over the regulation of

aliens, and possible undue constraint of interstate commerce

are some of the issues which obscure the degree to which states,

through their coastal management programs, can control coastal

water uses.

Management Problems

There are several problems of fisheries management that

will affect most-coastal water management programs.

1. Shore Facilities. In many coastal areas industrial

and residential development has either precluded or begun to

conflict with commercial and recreational fishing activities.

If the objectives of the Fishery Conservation Act and other

federal programs are met, there will be a significant growth

122

in domestic commercial fishing, as well as in aquaculture and

recreational fishing. There*will be a need for more boat and

fish processing facilities. Yet these facilities must compete
economically, aesthetically,.and politically with a growing

list of other activities that also wish to use shore and

water resources. In many communities tr aditional patterns of

land use are changing, and new zoning may preclude storage of

equipment or other activities associated with commercial

fishing. New OCS developments will require shore support

facilities, including harbor space for service vessels, and

these new interests may displace commercial fising. If market

economics becomes the sole method.of coastal access allocation,

commercial fishing could be in serious trouble.

2. Pollution from Fish Processing. The Environmental

Protection Agency has estimated that 38 percent of all fish

processing plants will have to be exempted from federal water

quality requirements if they are to remain open, and that even

with such exemptions, 16 percent will be forced to close. In

the fall of 1976 seven sardine plants were fined by the Maine

Department of Environmental Protection when they failed to meet

an October 1 deadline for the installation and proper operation
17
of water pollution control equipment. As activities such as

shore-based recreation and coastal residential development

expand, several traditional water-based activities such as
fishing and fish processing will require additional a@tention

if they are not to be displaced by competing uses.and more

stringent standards. Special shore and water areas may have to

123

be set aside for commercial fishing and related facilities.

Otherwise they may not be compatible with other coastal uses,

due to smell or other activity characteristics. The idea of

special seafood processing parks,,such as that now being
considered for the Beaufort, South Carolina area 18 may be of

increasing importance.

As was discussed in Chapter One, coastal waters present

some different management problems (and opportunities), than

coastal lands. Fisheries management represent a prime example

of this. Due to the nature of the water environment,'the 'entire

territorial sea, as well as any activity that affects them, is

of concern to fisherie*s*mana_qement. It is difficult, if not
impossible, to isolate*activities and their impacts to 'the d'ecjree

that can be done on land. This may necessitate greater use of

management devices such as exclusive use zone, and may require,

ultimately, some exclusion of types or amounts of activities

from entire coastal water regimes in order to properly protect

and enhance priority water uses.

3. Chlorine. Chlorine is used to "treat" human sewage,

and to clean heat exchangers in power plants. More than 5,000

tons of this chemical are released into coastal and inland
waters each yearP Federal standards tend to encourage heavy

use of chlorine in sewage treatment, and some communities add

extra amounts to provide a residue of "free" chlorine for added

protection. Virginia, for example, requires that its effluent

must have two parts per million (ppm) of free chlorine in order

- 124 -

to protects its shellfish industry from contamination by viruses
suchas polio and hepatitis. 20

However, both shellfish and finfish are very sensitive

to chlorine. Oyster larvae, supposedly "protected" by extra

amounts of free chlorine, die when exposed to chlorine levels
nIearly a thousand times lower and 2 ppm. 21 In terms of finfish

and shellfish management, chlorine can be seen as a toxic

pollutant. But the problem is even more complicated. In some

instances chlorine reacts with'the organic compounds in sewagel

forming chlorinated hydrocarbons that may be as dangerous as

PCB's. It has also been discovered that once discharged into

coastal waters, chlorine can be displaced by bromine, thus

forming brominated hydrocarbons related to chemicals such as

PBB. As one research scientist is quoted as saying, "That's
good, hard evidence that we don't know what we're doing." 22

If present techniques of secondary treatment of sewage continue,

and if flush water from power plants continues to be discharged

into coastal and estuarine waters, large areas of coastal waters

could be rendered unfit for living resources.

4.* Conflicts Among Fishing Groups. Marine recreational

fishing which includes the harvesting of shellfish as well as

finfish for personal use, has become a major coastal water use

activity in the United States. Recent surveys estimate that

there are almost 30 million marine recreational fishermen, and

this number may increase by as much as an additional 15 million

23
by 1985. This creates an expanded demand for shore access

and water surface use. It also represents a growing potential

125

for conflict between recreational and commercial harvesting

of finite fishery stocks. This type of conflict is further

complicated by regional disagreements between different commer-

cial fishing interests, including several important instances

-in which the courts have upheld hi storic fishing rights for

native Americans. In some instances these decisions have led.

to a court-ordered management system which excluded non-native

Americans from fishing grounds during part or all of the fishing

season.

Perhaps the best-known treaty rights case led to a decision

in February of 1974 by U.S. District Court Judge George Boldt.

In that decision Judge Boldt determined that due to historic

fishing rights certain treaty Indians must be allowed to take

or attempt to take 50 percent of all harvestable salmon.in
the state of Washington's salmon runs. 24 Since then there have

been a growing number of clashes between fishermen and enforce-

ment officers, including the shooting of one fisherman. Recently

similar fising rights were recognized in Michigan's Upper Peninsula.

As described earlier, there has been an increasing conflict

between commercial anchovy seiners and sport fishermen in

California, the problem being that there may not be enough

anchovies for both interest groups. In Michigan, a similar

concern has led to the prohibition of the use of gill nets by

commercial fishermen and the creation of water zones, in order

to protect certain stocks for recreational fishing.

At the present time American commercial fising represents

a one billion dollar industry, employing some 500,000 people

126

directly or indirectly. Additionally, some 30 billion people

enjoy marine fishing (including shellfish harvesting) as a

recreational activity.

"Our fisheries are one of the nation's - indeed the
world's - greatest resources, and will become increas-
ingly important as a source of food for man in the
decades ahead. We cannot permit the depletion of our
fishstocks and the destruction of'fish habitats to
continue. We must learn to manage this resource so
that we may use it to the optimum now and so that
future generations may be able to use it and draw even
greater yields from it. And,we,can 'and,must do i*t in
ways which are com atible with the'nation's neeU_to
develop other valuable use-s of the,o'cean.25 (e phasis
added) I

Translating these objectives into a workable state coastal

management program will obviously be difficult. It may soon

be necessary for both state and federal management programs to

determine how much of finite fish stocks should be used by

which groups. In order to make such choices, new decision

rules may have to be invented by the public. In the past such

decisions have been avoided by increasing access facilities or

putting more money into fisheries management. These choices

are difficult not only technically, but also politically.

S. Direct Conflict with Other Coastal Users. As more

people attempt to use the coastal zone for an expanding number

of activities, conflicts will increase in number and severity.

As reflected in recent court actions cited earlier, people

engaged in various aspects of the fishing industry are now

attempting to influence shore and water use decisions so as to

protect their perceived interests in clean waters, sufficient

127 -

harbor and processing sites,,and protection of near shore and

deepwater habitats. Since finfishand shellfish are extremely

sensitive to habitat loss and changes in coastal water charac-

teristics, virtually every coastal water use proposal is likely

to be viewed by those in the fishing industry or recreational

fishermen as a potential threat to their interests. If aqua-

clture, recreational fishing, and commercial fisheries are

improved and expanded, as intended by the passage of the Fishery

Conservation Act of 1976, there will then be an increased need

for careful siting of facilities;-for water and shore zones to

protect habitat and fish harvesting areas; and for frequent

evaluation of the type and amount of activity that can occur

with coastal waters in harmony with expanded fisheries. As an

example, the February 1977 issue of National Fisherman reports

the strong opposition of Virginia oyster packers to a proposed

250,000 bbl-per day oil refinery that would be constructed in

Portsmouth, Virginia and discharge into the Elizabeth River.

The number of interest groups wishing to participate in a

coastal management decision are likely to grow as coastal

management plans are implemented, making allocative choices

increasingly difficult and complex.

The Fishery Conservation Act of 1976'

In 1976 the United States established a 200 mile economic

zone adjacent to its territorial waters. The basic intent of

the Fishery Conservation Act, by which this zone is established,

128

is to insure that commercial fish harvesting is limited to

rates that the resource can support over time, and that American

fishermen be given priority access to fisheries resources along

our coasts. It also establishes a mechanism for a new level of

comprehensive fisheries management.

Aside from the 200 mile zone, in which foreign.vessels can

fish only with a federal permit, the major featuresofthis Act

are eight Regional Fishery Management Counsils which the Act

authorizes.

a. New En@land'Fishery Management Council: consists of
17 voting members and includes the states of Maine,
New Hampshire, Massachusetts, Rhode Island, and
Connecticut, and has authority over the fisheries.in
the Atlantic Ocean seaward of those states.

b. Mid-Atlantic Fishery Management Council: consists of
19 voting membeFs 'and includes the staEes of New York,
New Jersey, Delaware, Pennsylvania, Maryland, and
Virginia, and has authority over the fisheries in the
Atlantic Ocean seaward of those states.

c. The South Atlantic Fishery Management Council:
consists of 13 voting members including--Eh-estates of
North Carolina, South Carolina, Georgia, and Florida
and has authority over the fisheries in the Atlantic
Ocean seaward of those states.

d. The Caribbean Fishery Management Council: consists of
7 voting members including the VirgiH -Islands and the
Commonwealth of Puerto Rico and has authority over the
fisheries in the Caribbean Sea and Atlantic Ocean sea-
ward of those stated.

e. The Gulf of Mexico Fishery Management Council: con-
sists of 17 voting members including the states of
Texas, Louisiana, Mississippi, Alabama, and Florida,
and has authority over the fisheries in the Gulf of
Mexico seaward of those states.

f. The Pacific Fishery Management Council: consists of
13 voting members, including the states of California,
Oregon, Washington, and Idaho and has authority over
the fisheries in the Pacific Ocean seaward of such
states.

129

g. The North Pacific'FIshe'ry'Management Col Mcil: con-
sists of 11 voting members. and includes the states of
Alaska, Washington,and Oregon and has authority over
the fisheries in the Arctic Ocean, Bering Sea, and
Pacific Ocean seaward of-Alaska.

h. The Western Paci,f'ic,F'ishd,ry Management council-.
consists of 11 voting members, and includes the
state of Hawaii, American Samoa, and Guam, and shall
have authority over the fisheries in the Pacific Ocean
seaward of such states.

These councils have authority to formulate management plans that

will directly affect the fisheries of coastal states. New

fishing patterns and domestic pressures, increased promotion

of aquaculture, and economic shifts may result from council

actions.

State Coastal Management Programs and the Fishery'Councils

The Fishery Counservation Act contains several safeguards

to insure that state authority to manage coastal fisheries is

not diminished. The-governors of the affected states appoint

most of the members of the councils, and the state director of

fisheries management is included as a voting member on the

council. Furthermore, state placs can be adopted by the council

and Section 306 specifies that state jurisdiction over coastal

waters is not to be extended or diminished by the Act.

However, there is some basis for concern. Section 306(b)

stipulates that the Secretary of Commerce can, under certain

conditions, assume management responsibilities of a specific

fishery within the boundaries of a state if and as long as a

- 130 -

state's management program fails to meet the Secretary's

approval.

Also of concern is the possibility that these new

Regional Councils, in formulating regional fisheries management

plans, will interfere with state'coastal zone management efforts.

Council plan@ for increased fisheries development could conflict

with state coastal water management objectives of industrial

development, or may generate shore access pressures inconsis-

tent with a state plan. While the state is given a strong

role:in council activities, there is no assurance that these

activities will be coordinated with coastal management efforts.

In some instances fisheries management is a separate state

function, and communication may not occur unless the state

coastal management,programs sends an observer to council meetings

and makes other efforts to clarify the process and goals of the

coastal management program. Otherwise, state coastal managers

might have to evoke the consistency clauses of the CZMA.

There are several positive aspects to the Fishery Conser-

vation Act. For the first time, the state coastal management

programs (CZMP) can interact with a cohesive federal ocean

fishery management system. These regional councils have the

potential of increasing the ability of states to manage finfish

and shellfish within coastal waters. Inventory and habitat

protection efforts by the councils can augment state efforts,

especially if they are coordinated. Regional fisheries manage-

ment plans can join with state programs to provide a systems

approach to each fishery, going beyond the limits of the territorial

131 -

sea. With a proper interface between coastal management and

the regional councils provison of shore facilities,J, habitat

protection, and coordination with other types of coastal water

activitiy can be achieved.

Management'ApproAches

Even with regional councils, coastal states face a number

of fisheries management problems, including marine pollution,

insufficient shore facilities, and a limited fish population.

Most states are now trying one or more techniques to keep

fishing pressure within the limits of fish stock. Some of

these techniques include:

Closed''seasons or areas in which fishing is prohibited
when or where thF -stocks are most vulnerable. These
are spatial or temporal exclusion zones.

Limits on size of certain species, to insure that
species reach a size or age where they can reproduce.

Vessel limitations, such as size, tonnage, or auto-
motive power restrictions, designed to reduce pressure
on the stocks by imposing technological inefficiency.

Limited entry, in which only a certain number of
fishermen or a certain number of boats are allowed
to harvest a particular species. Sometimes vessels
are purchased from the state, both as compensation
and to insure limited fishing-pressure.

Gear restrictions designed for the same purpose as
vessel limitatioNs, or to make harvesting more selec-
tive, for either a specific species or a certain age
class.

Limits on catch, which result in the closing of a
fishery once the total allowable catch has been
reached.

SCIENTIFIC AND COMMON NAMES OF SPECIES MENTIONED IN THE TEXT

Birds

Phaeton lepturus White-tailed Tropicbird
Pelecanus occidentalis Brown Pelican
Sula leucogaster Brown Booby
Sula dactylatra Masked Booby
Sula sula Red-footed Booby
Fregata magnificens Magnificent frigatebird
Larus atricilla Laughing Gull
Sterna doualli Roseate Tern
Sterna fuscata Sooty Tern
Sterna antillarum Least Tern
Sterna maxima Royal Tern
Sterna sandvicensis Sandwich Tern
Anous stolidus Noddy Tern
Ardea herodias Great Blue Heron
Butorides striatus Green-backed Heron
Florida caerulea Little Blue Heron
Bubuicus ibis Cattle Egret
Casmerodius albus Great Egret
Egretta thula Snowy Egret
Hydranassa tricolor Tricolored Heron
Nycticorax nycticorax Black-crowned Night Heron
Nyctanassa violacea Yellow-crowned Night Heron
Ixobrichus exilis Least Bittern
Botaurus lentiginosus American Bittern
Plegadis falcinellus Glossy Ibis
Phoenicopterus ruber American Flamingo
Charadrius semipalmatus Semipalmated Plover
Charadrius alexandrinus Snowy Plover
Charadrius melodus Piping Plover
Charadrius wilsonia Wilson's Plover
Charadrius vociferus Killdeer
Pluvialis dominica American Golden Plover
Pluvialis Sguatarola Black-bellied Plover
Arenaria interpres Ruddy Turnstone
Capella gallinago Common Snipe
Numenius phaeopus Whimbrel
Actitis macularia Spotted Sandpiper
Tringa solitaria Solitary Sandpiper
Tringa flavipes Lesser Yellowlegs
Tringa melanoleuca Greater Yellowlegs

170

Calidris pusilla Semipalmated Sandpiper
Haemaopus ostralegus American Oystercatcher
Hymantopus mexicanus Black-necked Stilt
Rallus longirostris Clapper Rail
Porzana carolina Sora Rail
Porzana flaviventer Yellow-breasted Crake
Parphyryla martinica Purple Gallinule
Gallinula chloropus Common moorhen
Fulica americana American Coot
Fulica caribaea Caribbean Coot
Jacana spinosa Spiny Jacana
Podylimbus podiceps Pied-billed Grebe
Tachibaptus dominicus Least Grebe
Phalacrocorax auritus Double-crested Cormorant
Dendrocygna arborea West Indian Whistling Duct
Dendrocygna autumnalis Black-bellied Whistling Duct
Dandrcyna bicolor Fulvous Whistling Duct
Anas platyrhynchos Mallard
Anas rubripes Black Duct
Anas bahamensis Bahama Duct
Anas crecca Green-winged Teal
Anas acuta Pintail
Anas discors Blue-winged Teal
Anas americana American Wigeon
Aythya collaris Ring-necked Duck
Aythya affinis Lesser Scaup
Oxyura amaicensis Ruddy Duck
oxyur dominica Masked Duck
Buteo jamaicensis Red-tailed Hawk
Pandion halietus Osprey
Falco peregrinus Peregrine Falcon
Otus nudipes newtoni Newton's Owl
Asio flammeLts Short-eared Owl
Columba leucocephala White-crowned Pigeon
Columba squamosa Scaly-naped Pigeon
Columba inornata Puerto Rican Plain Pigeon
Zenaida macroura Mourning Dove
Zenaida aurita Zenaida Dove
Zenaida asiatica White-winged Dove
Geotrygon montana Ruddy uail Dove
Geotrygon chrysia Key West uail Dove
Caprimulaus noctitherus Puerto Rican Nightiar
Chordeiles aundlachii West Indian Nighthawk
Sericotes holosericeus Green-throated Carib
orthorhyacus cristatus Antillean Crested Hummingbird
Todus meicanus Puerto Rican Tody
Elaenia martinica Caribbean Elaenia
Parula americana Northern Parula
Dendroica petechia Yellow Warbler
Agelaius anthomus Yellow-shouldered Blackbird

171

Quiscalus niger Greater Antillean Grackle
Molothrus bonariensis Glassy Cowbird

Reptiles and Amphibians

Eleutherodactylus cooki Puerto Rican Cavern Coqui
Eleutherodactylus cochranae Whistling Coqui
Eleutherodactylus monensis Mona Coqui
Peltophryne lemur Puerto Rican Crested Toad
Anolis cooki Puerto Rican Dryland Anole
Anolis cuvieri Puerto Rican Giant Anole
Anolis monensis Mona Anole
Anolis roosevelti Culebra Giant Anole
Chrysemis decusata Antillean Painted Turtle
Dermochelis coriacea Leatherback sea turtle
Chelonia mydas Green sea turtle
Caretta,caretta Loggerhead
Eretmochelys imbricata Hawksbill sea turtle
Sphaerodactylus microphitecus Monito Gecko
Sphaerodactylus monensis Mona Island Geco
Ameiba alboguttata Teid Lizard
Cayman crocodylus Spectacled Cayman
Alsophis portoricensis Puerto Rican Ground Snake
Epicrates monensis monensis Mona Island Boa
Epicrates monensis granti Virgin Island's Tree Boa
Epicrates inornatus Puerto Rican Boa

Mammals

Trichechus manatus West Indian Manatee

172

COMMON AND SCIENTIFIC NAMES OF THREATENED AND ENDANGERED FAUNA
MENTIONED IN THE TEXT

Birds

Pelecanus occidentalis Brown Pelican (FE)
Sterna dougalli Roseate Tern (FT)
Sterna antillarum Least Tern (CT)
Charadrius alexandrinus Snowy Plover (CT)
Charadrius melodus Piping Plover (FT)
Porzana flaviventer Yellow-breasted Crake (CT)
Fulica caribaea Caribbean Coot (CT)
Tachibaptus dominicus Least Grebe (CT)
Dendrocygna arborea West Indian Whistling Duck (CT)
Oxyura jamaicensis, Ruddy Duck (CT)
Oxyura dominica Masked Duck (CT)
Falco peregrinus Peregrine Falcon (FE)
Columba inornata Puerto Rican Plain Pigeon (EF)
Caprimulus noctitherus Puerto Rican Nightiar (FE)
Agelaius xanthomus Yellow-Shouldered Blackbird (FE)

Reptiles and Amphibians

Peltophryne lemur Puerto Rican Crested Toad (FT)
Anolis cooki Puerto Rican Dryland Anole (CT)
Anolis roosevelti Culebra Giant Anole (FE)
Dermochelis coriacea Leatherback sea turtle (FE)
Chelonia mydas Green sea turtle (FE)
Caretta caretta Loggerhead (FE)
Eretmochelys imbricata Hawksbill Sea turtle (FE)
Sphaeodactvlus microphitecus Monito Gecko (FE)
Epicrates monensis monensis, Mona Island Boa (FT)
Epicrates monensis granti Virgin Island's Tree Boa (FE)
Epicrates inornatus Puerto Rican Boa (FE)

Mammals

Trichechus manatus West Indian Manatee (FE)

CT : Commonwealth-listed Threatened
FT : Federally-listed Threatened
FE : Federally-listed Endangered

173

136 -

the trends and forecasts for a continued.growth in demand for

shore and water access by a wide variety of activities, it would

seem that deliberate enclaves must be set aside for commercial

fising activities, if they are to continue.

Clearly, the choice to.favor fishing as a priority use

has major impacts, and represents perhaps the single most

important allocative decision that a coastal water use manage-

ment program can make. If it is to be a priority use, then the

negative impacts of all other water activities must be controlled

on the basis of fishery management objectives.. However, there

can be few other coastal watem-uses that.are more important;

have more historic claim to adequate consideration; and few

uses that are as totally dependent upon the maintenance-of a

high-quality marine environment and adequate shore facilities.

Given the pressures for expanded development of the waters and

submerged lands of the marine environment, maintenance of

adequate conditions for commercial and recreational fishing

represents perhaps the greatest challenge to any state coastal

management program.

137 -

FOOTNOTES

1. United States Department of Commerce. A'Ma*rine Fisheries
Program for the Nation., July, 1976, p. 14.

2. Ibid., p. 15.

3. Ibid., p. 9.

4. Ibid., p. 6.

5. Ibid.p p. 5.

6. "Florida's Swordfish Bonanza Choked by FDA" in'National
Fisherman, December, 1976. P. 9-A.

7. Severo, Richard. New York'Times. January 14, 1977.

8. Sullivan, Joseph. New York Times.. January 14, 1977.

9. National Fisherman. February, 1977.

10. New York Times. November 16, 1976.

11. Webster, Bayard. New York Times. January 27, 1977.

12. Pett, Amy. The Port Washington News. January 20, 1977.

13. Robb, Charles. The Cap Codder. December 23, 1976.

14. A Marine Fisheries Program for *the Nation, page 8.

15. National Fisherman. December, 1976.

16. Ibid., November, 1976.

17. Ibid., December, 1976.

18. Ibid., March, 1977.

19. Dr. Robert Jolley, Oak Ridge National Laboratory, cited
in Wright, Lawrence, "Troubled Waters" in New Times,
May 13, 1977, p. 43.

20. Wright, Lawrence, "Troubled-Waters" in New Times., May 13,
1977, page 43.

21. Ibid.

22. Dr. James Carpenter, Department of Chemical Oceanography,
University of Miami, cited in Wright, p. 43.

138

23. A Marine Fisheries Program-for.the'Nation, p. 9.

24. National Fisherman. December, 1976.

25. A marine F'isherie*s Prograin for the Nation, p. 3.

139 -

RECOMMENDED READINGS

1. United States Department of Commerce. A marine Fisheries
Program for the Nation. July, 1976.

2. General-Accounting Office. The"U*.S. Fishing*Industry:
Present Condltion@ and: Future of Kat-inie' Fi.sheries.
Two Volumes. Comptroller General of the United
States. December, 1976.

3. National Marine Fisheries Service and Fish and Wildlife
Service. Living Co.astal Resources. Office of Coastal
Management. July, 1976.

4.' National Fisherman. A monthly newspaper covering fisheries
management @hroughout the United States. Subscription
information available from National Fisherman, 21 Elm
Street, Camden, Maine 04843. -

Part I. Introduction

The State of Maryland contains 3,190 miles of tidal shoreline; most of
which lies along the Chesapeake Bay and its inflowing rivers. The historic
changes in shoreline have been documented for 1,593 miles;1 270 miles

along the main Chesapeake Bay, 1,191 miles along its tributaries and 132 in

the Atlantic Ocean/Bay system. All of this shoreline is dynamic and, thus,

whenever development takes place immediately adjacent to the shoreline, a
potentially hazardous situation arises.

The State of Maryland has taken an interest in the problem of shore-

line erosion to the private property owner since 1910. Since 1968, the

State has operated a program of technical and financial assistance to

private shorefront property owners. Along the Atlantic Coast, the State

has been active in building or funding shore protection structures since

1921. Concerns of the State which have resulted in its taking a financial

interest in this problem can be summarized as follows:

1. Loss of valuable waterfront acreage with subseuent reduction

in tax base;

2. Loss of land, particularly sandy beaches, available for public

waterfront recreation;

3. Threat to man-made structures such as houses and toads,

4. Deposition of silt, sediment and debris into tidal waters, and

5. The potential for exacerbation of erosion problems at one

location by erosion control stuructures on adjacent properties.

1The upper reaches of tributaries were not surveyed historically and

therefore erosion rates in those areas are not documented.

US Department of Commerce
NOAA Coastal Services Center Library
2 South Hobson Avenue
Charleston, SC 29 5-2413

- 141 -

From the inception of proposed coastal management legis-.

lation, the Navy has expressed concern over what it has termed

"potential encroachment" by state:coastal authorities into
matters of essential national security.1 Considering that the

Coastal Zone Management Act calls for state designation of

"permissible land and water uses" and broad guidelines of

"priority of uses in particular areas" (both in Section 305),

the Navy's concern seems reasonable. Yet the language of the

Coastal Zone Management Act provides a degree of protection for

national security interests that is unequaled for any other fed-

deral interest, except, to a lesser extent, for the Clean Air

and FWPCA concerns of EPA.

National Defense Requirements of the CZMA

National security is assured extraordinary consideration in'

the development and implementation of state coastal programs

through two types of provision of the Coastal Zone Mangement Act.

First, there are a set of general provisions that require the

incorporation of all appropriate federal interests in state

programs.

Section 306(c)(1) requires that prior to approval of a state
program, tHe -state must-demonstrate that it has provided an
opportunity to all relevant federal agencies for full-p*arti-
cipation in program development.

- 142

Section '306(c)(8) requires that the state management pro-
gram provide for:
"adequate consideration of the national interest
involved in the siting of facilities nece'ssary to
meet requirements which are other than local in
nature."

Section@307"(b) requires that each state demonstrate that
the views of federal agencies principally affected by such
programs have been adequately considered.

Sections 923.15, 923.31 and 923.32 of OCZM's regulations

on 306 program approval support these requirements. However,

in terms of national security, the Act goes much further.

Section 307(c)(3)(A). Section 307 is the basic consis-
tency clause of the CZMA. Section 307(c)(3)(A) stimulates
that a license or permit can be granted by a federal agency
even when it is inconsistent with a state's program if
the Secretary of Commerce finds that the activity is
"necessary in the interest.of national secruity."

Section*30"7(c)(3)(B) relates to OCS development activities,
and was added To -the CZMA in 1976 amendments. It also
allows for afederal'override of state objections to a
proposed inconsistent action if the Secretary of Interior
finds that the proposed action is "necessary in the
interest of national security."

Section 307(d) requires that any federal assistance to
state or local governments must be consistent with a
state's CZMP. However, this section again contains an
override provision, allowing a determination by the
Secretary of Commerce that the proposed assistance is
11necessary in the interest of national security."

Potential Conflicts

Some states are not accustomed to systematically dealing

with a multitude.of federal agencies as part of their state

management process. As the 1976 GAO report on the CZMA suggests,

(reaches) of critical state concern were:

(1) reaches in which water and or wastewater services are

present or planned within a portion of the reach and where

the historic erosion rate is two (2) feet or greater per

year.

(2) reaches in which the historic erosion rate is four (4)

feet or greater per year regardless of adjacent land use.

Approximately two hundred miles of shoreline meet these criteria.

While this is a rather substantial area to include in a critical atea

nomination, we believe it is justified as an initial recomnendation. Even

at the lower end the scale of erosion included i.e. two feet per year a

1/2 acre shorefront lot could be cut in half in fifty years.

Table 1 lists the reaches on a county by county basis that are

recommended for critical area designation. Attachment A of this report

cont ains (1) maps showing the location of reaches recomimended for critical

area designation and (2) tabular information on the erosion rate occurring

within the reach, the presence of shore erosion structures within the

teaches, and the type of water and wastewater service existing or planned

for the reaches on a county by county basis. Appendix A contains a

description, including their limitations, of the historic shore erosion

rate maps and the shore erosion structure maps used in the identification

and characterization of the reaches. Appendix B contains a bibliogyaphy of
pertinent Maryland publications on shore erosion.

It should be recognized that there are valid reasons why some of the

recommended areas might be removed from the "critical" category pryior to

the designations being made. Areas might be removed from the "critical"

category during their review by the Department of State Planning (DSP), the

counties and other State agencies, based on the following factors:

144

Navy Policy Regarding State Authority

Some conflicts between state and Navy interests have dev-

eloped as states move towards 306 program approval. As part of

its formulation of department interest in coastal air, land,

and water resources, the Navy has articulated a very strong

position which deserves careful consideration.

Regardless of the legislative jurisdictional status
of the property involved, the United States may exer-
cise in all places whatever jurisdiction is essential
to the performance of its constitutional functions
without interference from anysource.

Thus no state may exercise any authority which would
in any way interfere with or restrict the United States
in the use of its property or obstruct it in the exer-
cise of any of the powers which,the states have relin-
quished to the United States under the Constitution.
One of the powers expressly surrendered by the states
under the Constitution is the power "to provide and
maintain a Navy." It follows that enforcement 'of a
state law may not be permitted to interfere-lw-lth any
-authorized naval function. (emphasis added)

Case History: State of Washington-C'ZMP'Development

The state of Washington contains many facilities and oper-

ational areas of particular interest to the Navy and other

national security related federal agencies. In March of 1975,

the Department of Defense was asked to comment upon Washington

State's CZMP and OCZM's draft environmental impact statement for

that plan.

In June of 1975 OCZM received a letter from the Deputy

Assistant Secretary of Defense for Environmental Quality which

designation. In addition, some reaches may not be worthy of designation

because only a small pottion of then. have existing or planned water and/or

wastewater services or it may be the case that a more detailed analysis

should be performed to determine if only a portion of the reach should be

designated.

Additional areas not recommended in this report may be worthy of

consideration for designation by DSP, other State agencies, or local

governments. These could be:

1. Areas containing extensive shoreline development on individual

water and septic systems and experiencing shore erosion rates of 24 ft/yr

because of the potential adverse impacts from shore erosion.

2. Areas adjacent to State parks, forests and wildlife management

areas or similar lands owned by local governments on which development is

planned because of possible increased shore erosion on the adjacent
publicly owned lands due to the development itself or associated shore

erosion structures such as groins and jetties.

3. Shoreline publicly owned lands which experience shore erosion Yates

of 24 ft/yr but donot,meet the criteria established above since they do not

have existing or planned water and/or wastewater services because of the

significant adverse impacts on public property

Part III. Management of Critical Shore Erosion Areas

In the designation process, two facts should be emphasized:

1. Designation as a critical area does not indicate that development

should be discouraged. A recent study of success and failure of shoreline

structures conducted for CRD indicates that erosion can be controlled along

most Chesapeake Bay shorelines, even where the histoyic rate of retreat is

greater than 10 feet/year. Designation should rather emphasize: (1). the

need to provide for adequate shoreline setbacks and/or shore erosion

control measures; (2) the need to provide for the initial cost and the

maintenance of controls; and (3) the potential to prevent future pyoblems
through sound planning.

2. Designation does not imply that areas necessarily qualify for

receipt of State or federal shore erosion control funds. The Shore Erosion
Loan Program can only protect about l-1/2 miles of shoreline per year given

current funding.

Management techniues should focus on two objectives:

1. To prevent development immediately adjacent to highly eroding

shorelines, and/or

2. to provide for adequately designed, constructed and maintained

shore erosion contyol measures.

CRD is currently assisting in a cooperative study of local management

approaches to shore erosion in Queen Anne's and Talbot Counties. This

studyis expected to provide a more detailed analysis of the options

available for erosion management. What follows is a preliminary listing of

potential management techniques.

- 147

that may directly affect their statecoastal waters, as well

as possible areas of naval assistance in state program imple-

mentation.

Dist'rict''and,Global Mahaqeoent. The Navy, and above it,

the Department of Defense, opsrate@ complex world-wide manage-

ment systems. If they had the time, money, and mandate, they

could conceivably contribute many ideas on organizationt admin-

istration, and information systems that would be of considerable

use to state coastal water use efforts. In general, the Navy is

responsible for the training, testing, and operation of aircraft,

surface vessels, and subsurface systems, often interacting in

complex tactical networks. These are linked with each other

through command systems that could be equated, on a large

scale, with a state's central coastal management authority.

The concerns of the Navy are not restricted to the opera-

tion of its own complex global network of men, equipment, and

communications. It must also interact with all other uses of

the air, water, and sub-surface environment, as well as land-

use activities that may affect its mission. In each United

States naval operation area, there is a functioning management

system that tracks, evaluates, and allocates use of the air

above, the sea below and the surface of coastal waters.

Until recently, the Navy and the Department of Defense

have been operating a de facto air, water, submerged lands, and

land use management system for purposes of national security.

It is imperative that states use sensitivity and intelligence

when attempting to interact with this important and complex

148

system, one that has strong political and legal support. How-

ever, states are charged under the CZMA with developing a more

comprehensive view of coastal use in which national defense is

but one of several priorities.

Types of.Naval Operational Areas

The Navy has established various protective activity'zones

to facilitate its operations. Coastal states may find these

zones of particular interest as possible models for state

management appraoches to coastal water,usemanagement. These

zones are often temporal in nature, with specific hours applied

to them. During these periods special activities take place

within the zone and special restrictions upon public use are

imposed. There are also complex spatial zones, that may include

a particular section of air, surface waters, the water column,

submerged langs, or some combination of all of these.

I. National or Regional Operational Systems: The Navy and
@t-her federal agencies maintain a series of national
security related systems on a national or coast-wide
basis, which include coastal waters. Special Air Defense
Identification zones, radar monitoring areas, communi-
cations systems, and electronic systems are included in
these zones.

ii. Specific Operational Areas: The Navy uses a series of
activity zones to support its activities, many of which
are located within coastal waters.

A. Special Use Airspace: This may include prohibited,
restricted, warning, alert, controlled firing, a
air traf control air zones. They are identified
on all coastal charts, and are established through
requests to the Federal Aviation Administration.

- 149 -

FAA approval is granted under authority of the
Federal Aviation- Act' of@ 1'958 and Executive, Order
10854 of 1959.

These air space areas may include surface waters,
when they are over the territorial waters, but do
not affect state controlled submerged lands. Air-
space areas over international waters always include
the underlying waters,but not submerged lands of
the continental shelf.

The principal coastal area use of such airspace
designations is to allow the use of aircraft, air-
based weapon systems,.ground to air systems, and
the use of land-based weapons or sea based weapons
that may transit through an air corridor. Without
special reservation of this space, non-military
aircraft and other activities might be endangered,
or disrupt military activities.

B. Anchorages and Restrieted,Water'Areas: These may
in-clude:

Caution Areas, Controlled Firing Areas, Danger
Areas, Fleet Operating Tr-eas (FLT OPAREXAT, -Warning
Areas, Prohibited Areas, Restricted Areas', Special
Use Areas, Security Ar@@a_s.The Navy also operates
Submarine Transit Lanes,_Explosive and Chemical
Dumping Areas, and Sea Defense'Areas.

These areas are under the 'control of a desiqanted
scheduling authority within the district commandant
administration. Theyaremarked on charts, and are
established under federal law using the authority of
Proclamation 2732 of 31 May, 1947(see Chapter Three)
and are designated by the Department of the Army,
Corps of Engineers.

An Example: Naval Surface Weapons Center, Solomons Facility 5

The Naval Surface Weapons Center (NAVSURFWPNCEN) is a

296-acre site at Point Patience, Calvert County, Maryland, on

the Patuxent River, Chesapeake Bay.

In 1941, under the Bureau of Ships, this site was developed

as the Naval Mine Warfare Test Station to undertake research and

150

development work on mine warfare and counter measures. The

use of the site then went through a series of changes, until

September of 1974 when it became the Naval Surface Weapons

Center.

its mission is to conduct air, surface, and underwater

field trials on full-scale samples of ordnance in the Patuxent

River or Chesapeake Bay. In addition,a Naval Recreation Center

and a hydrographic research project of the Naval Oceanographic

Office are located within the facility.

Unique Site Characteristics. Water depths. of 150 feet in

the Chesapeake Bay and 130 feet in the Pataxent River are impor-

tant for the testing-of marine equipment and are unique for

Eastern and Gulf inland and coastal-waters. It is therefore

questionable that similar facilities could be obtained at some

other regional coastal facility. Also, the sheltered nature

of these waters facilitates shock testing of new ordnance

components. The river range, which is adjacent to the facility,

has both depth and bottom characteristics which facilitate

testing and recovery of test units.

Because of deep water, large naval vessels can be brought

to NAVSURFWPNCEN for electromagnetic pulse radiation (EMP)

impact testing, using a special EMPRESS (Electromagnetic Pulse

Radiation Environment Simulator for Ships) system. The Navy

feels that the characteristics of this site justify setting it

aside for Naval use.

Ranges. There are several ordnance test areas, including

land, air, surface, and subsurface use.

- 151,-

Patuxent River RRanje: includes three sites for
Ee'sting ordnance aTr dropped into water environments
such as mines, bomb-s, anti-submarine warfare weaponsf
and sonobuoys. This is a water zone about 0.5 naut-
ical miles wide and'4 nautical miles long.

Cheasapeake Bay: possible uses include wide areas of
the bay, which is some 90 nautical miles long and an
average of 7 nautical miles wide. A deep water test
site of 146 acres exists near the mouth of the
Patuxent River.

Bloodswotth Island: located 25 miles from the Solomons
facility, this Es'land and surrounding waters is used
for the testing of shallow water ordnance and firing
of gun rounds up to 152 mm in size.

Other test areas are included on the land portions of the

site.

Water Security. In effectf the Navy has established

several water zones for weapons and systems testing. To insure

that the tests are not disrupted, and that the general public

is not endangered, the Navy takes special actions to enforce

these zones.

Public Listings: as with all special air and water
use-areas, the Navy lists these areas on national
ocean survey charts (NOAA), and in the United States
Coast Pilot 3 (Navigational Regulation 207.125).

As part of its coordination with state coastal zone management

programs, the Navy has provided descriptions of such areas to

each state. Typically, these zones are at some times restricted

areas or time managed water/air/subsurface zones. The Solomon

Facility includes the following types of water use restriction

areas, as-described in Section 207.125 of Coast Pilot 3.

152 -

1. No person in the water and no craft shall approach
closer than 75 yards to the beaches, shorelines, or
piers of the area formerly occupied by the U.S. Naval
Mine Warfare Test Station, or of U.S. Naval Air
Station.property.
A person in the water or a civilian craft shall not
approach rafts, barges, or platforms closer than 100
yards.

These restrictions represent.a permanent buffer zone, insuring

a 75 to 100 yard area separating the facility from other uses

of Chesapeake Bay or the Patuxent River. Not only does this

provide protection to the public, but also to facility users.

2. - Seaplane landings and takeoffs will occasionally
be practices within a designated water zone on the
Patuxent River, which is precisely described in the
Coast Pilot and marked on area charts.
- When these zones are not being used, they are
open to civilian water use.
At those times when they are to be used for sea-
planes, a series of indicators are used, and special
restrictions enforced.

Consistency. In accordance with OCZM rules, all federal

lands are to be excluded from designation as part of a state's

coastal "zone." However, OCZM has also stated, in Washington

State's EIS and elsewhere, that while certain facilities may

be excluded, the impacts which those facilities may impart

upon coastal waters are still subject to review under the

Section 307 consistency requirements of the Coastal Zone

Management Act. Thus the Solomon Facility in Maryland would

not be included within the boundary designation of Maryland's

coastal zone, and consequently would not be subject to several

of the CZMP provisons. But if the Solomon Facility was to have

153 -

a direct or significant impact upon the coastal waters, to

that degree it would,have to interact with the state management

program.

Some National Issues in' DOD/St-a:te Consl'stency

As this chapter has described, Naval operations within

United States coastal waters includes the extensive use of air,

submerged lands, water column and surface water zones. Some-

times these are reserved and operated as exclusive naval areas,

even though they are within the coastal waters of the state.

The Coastal Zone Management Act specifically excludes

certain "lands," but does not exlucde coastal "Waters."

Section 304(a) . . . Excluded from the coastal zone
are lands tRe-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.

The United States Attorney General has ruled, and the Office of

Coastal Zone Managem ent has accepted, that this exclusion clause

affects all federal lands. But again, what of coastal waters?

A careful reading of the Act and of the congressional
hearings leading to its passage6 would suggest that Congress

did not give any indication of excluding water areas from state

control. There is, in fact, some indication that this potential

"problem" may not have received full consideration by Congress,

and further clarification may be required.

Clearly the Navy and other security-related agencies have

an important mission that has been acknowledged by Congress through

Table I Reaches Recommended for Critical Area Designation

Water/Wastewater
Reach Erosion Setvices Present
County Number Geogyap hic Boundaries Rate or Planned

St. Mary's 8 St. George Island M NO
10 Priests Point-Kitts Point L YES
11 Kitts Point-Gray Point M NO
14 Point Lookout-St. Jeyome Creek H YES
16 Point No Point-Pine Hill Run M YES
18 Cedar Point-Hog Point M YES
18 Hog Point-Pearson Creek M YES

Calvert 20 Little Cove Point-Cove Point L YES
21 Cove Point-Long Beach L YES
23 Parker Cyeek-Plum Point L YES
25 Chesapeake Beach-Holland Point M YES

Anne Arundel 26 Holland Point P YES
28 Bockhold Cyeek-Broadwater Creek M YES
29 Broadwater Creek-Curtis Point M YES
30 Dutchman Point-Turkey Point L YES
31 Thomas Point H NO
32 Thomas Point-Tolly Point L YES
34 Hackett Point-Sandy Point L YES
36 Mountain Pt.-Gibson Island Beach L YES
38 Bodkin Point-Rock Point L YES

Baltimore 40 Bayshore Park-Bay Island Beach L YES
41A Island and View Beach-Browns Crk. M YES
43A Briet Point M NO
43B Lower Island Point H NO
43C Carroll Point M NO
43D Bengies Point M NO

Harford 47 Taylor Island Pt.-Strong Point M N0

Cecil 53A Seneca Point Charlestown Basin L YES
53B Charlestown Basin N.-Amtrack Bank L YES

Kent 70 Swan Point-Windmill Point L YES
73A Hail Point M NO
73B Gum Point-Baybush Point M NO

Table I (Continued)

Water/Wastewater
Reach Erosion Services Present
County Number Geographic Boundaries Rate or Planned

Queen Anne's 74 Chesterhaven-Love Point L YES
75 Love Point-Matapeake (Kent Is.) M YES
77 Craney Crk.-Kent Pt. (Kent Is.) M YES
79 Long Point-Philpots Island L YES
80 Philpots Island-Cox Creek YES
82 Brain Point-Bennett Point L YES
81A Turkey Point-Johnson Island L YES
81B Little Creek-Alley Neck L YES
81C Alleyneck-Normans Point M YES
81D Parson Island M NO
74A Chesterhaven Beach-Piney Creek M YES
74B Piney Creek-Kent Narrows M YES
74C Long Point-Jackson Creek L YES

Talbot 83 Tilghiman Point-Wades Point L YES
83A Porter Creek-Hambleton Point L YES
85 Lowes Point-Knapps Narrows M NO
86 Knapps Narrows-Blackwal nut M YES
87 Poplar Island (Bayside) H NO
90 Change Point Nelson Point M NO
93 Lucy Point-Benoni Point M NO

Dorchester 97 Todds Point H NO
99 Mills Point-Hills Point H N0
100 Hills Point-Ragged Point M NO
101 James Island H NO
102 Hooper Point-Oyster Cove H NO
103 Oyster Cove-Punch Island Creek H NO
104 Punch Isl. Crk.Barren Isl. Gap H NO
105 Barren Island H NO
106 Hooper Island M YES
107A Lakes Cove-Cedar Point M NO
112A New Foundland Point M NO

Wicomico 113 Roaring Point-Nanticoke Point M NO
113A Bay Point-Holland Point M NO

Somerset 114 Long Point-Haines Point L YES
115 Haines Point-Twiggs Point L YES
116 Twiggs Point-Webster Point L YES
117 Webster Point-Claw Point M NO
122 Janes Island M NO
123 Cedar Island M NO
128 Big Thorofare-Hog Neck H NO

156

Future PlanniR2

Naval and other security-related activities are critical

uses of the coastal zone. As with energy-related facilities,

it is important to consider how and if such activities can be

accommodated within a coastal zone. Also, such facilities and

activities often have major impacts in terms of employment,

housing, transportation, and recreational patterns. These

impacts, both positive and negative, should be considered in

any evaluation of expansion plans for DOD activities. It is

possible that important sites, such as those associated with

the Eglin Air Force Base missle range, or the deep water charac-

teristics of the Cheasapeake Bay site used by the Solomons

Facility, could be set aside for possible DOD use without any

significant impact upon future coastal water use. It is also

possible that other areas, such as sensitive breeding grounds

or unique recreational areas, could be specifically designated

as being inappropriate for security-related activities.

Security-related use of coastal resources deserves

consideration as a designated priority use. Appropriate siting

and performance criteria for such activities may also be considered

by,the state. When designating or revising areas of particular

concern (APC's), consideration might be given to whether or not

various security-related activities are appropriate for such

APC's, and be specifically discussed within the state plan.

Since national security uses of coastal waters are impor-

tant, another management approach that states may wish to consider

- 157 -

would be to incorporate specific security-related activities,

locations, or facilities as recognized and protected parts of

the CZMP. They could be listed as priority uses, specified

as permissible uses within certain areas, or provided with

special management attention by designating them as areas of

particular concern. Upon evaluation of DOD special air and

water use areas, states may wish to include some of these

areas specifically as APC's.

DOD Assistance

The Navy an d other agencies concerned with national

security have a considerable amount of information, experience,

and technical capability that may be of great assistance to

state coastal management efforts. These resources are neither

by mandate or design widely available for civilian or coastal

management purposes. But it is possible that especially for

areas of mutual state/federal concern, that special management

assistance might be available. In most instances this would

represent a new idea for both DOD and the states and would

require a strong cooperative relationship.

DOD already provides public information and impact assis-

tance for communities and states where DOD activities will impart

major impacts. Somewhat similar in concept to the CEIP provisions

of the DZMA, these programs may contribute considerable assis-

tance to state programs.

158 -

Naval Management Systems

A field operation area such as the Southern California

one (SOCAL FLT OPAREA) involves high density use of both air

and water space over a wide'expanse of sea and land. Extensive

communications, radar, computers, and a highly structured

administrative system are n*eces'sary to avoid chaos. While few

if any state coastal management programs presently have either

the resources or the need for such a complex control mechanism,

an evaluation of what has beendone to establish coordination

among air, surface, and sub-surface operations might have

considerable value. It is perhaps in the areas of scheduling,

administrative networks, and communication/information/computer

systems that the Navy and other units within DOD could provide

the greatest amount of assistance to coastal states when and if

they find it necessary to construct more complex coastal manage-

ment programs.

One method of plugging into these systems is through the

FAA, the Coast Guard, and the Corps of Engineers, all of which

tend to receive special notification of DOD activities. In

addition there are some instances where these agencies must

issue permits or regulations. Coastal managers might also

attempt to receive information on a regular basis from the

Navy such as that contained in NOTAM's (notice to airmen),

NOTEMAR's (notices to mariners) and HYDROPACS (hydrographic

information)issues by the Navy within the area of operation.

Coastal managers should attempt to make direct contact with

15P

the naval scheduling officer or officers in charge of fleet

operations within the coastal state.

Conclusion

Given the complex, extensive,' and sometimes sensitive

nature of Navy activities as well as those of other national

security-related federal agencies, it is possible that at some

future point state coastal water use interests and those of

the Navy or some other security-related agency will conflict.

The resolution of each-issue cannot be discussed without the

specifics of the specific case. However, there are some

general factors to keep in mind.

Congress has recognized national security as a priority

use of coastal waters, and effort must be made to accommodate

such activities.

Comprehensive coastal zone management, and especially

coastal water use management, requires that more than security-

related activities occur within state waters. If national

security is a priority use, coastal states also have other

federal, state, regional, and local priorities that are as

legitimate, and sometimes more pressing.

The concept of coastal or water dependency, which several

states are using as a criteria for priority designations and

permissible use categories, can also be applied to national

securityactivities.

Attachment B

Wetlands Division Policy Guidelines Concerning Permit Applications Involving
Construction of Shore Erolsion Control Measures.
The owner of land bounding on navigable or tidal waters is entitled to
protect his shore against erosion as described in Title 9 of the Natural
Resources Article. To ensure this right, the Water Resources Administration
uses the following criteria to review proposed projects in carrying out the state
policy to preserve the wetlands while allowing the exercise of the right of
a riparian owner to protect his shore against erosion.

(6) The construction of bulkheads or other shore protection measures
shall include only such filling as necessary for effective use
of such measures and shall generally be located at the mean high
water line or no further channelward than needed for proper tie-back
emplacement, or in cases of a steep bank or cliff, no further
channelward than needed to obtain a stable slope.

(7) Where shore protection is needed and a marsh exists in front of an
applicant's land, the shore protection structure shall be placed
behind the marsh or low profile protection (preferably riprap) placed
channelward of the riarsh'so that normal tidal flow into the marsh
will be naintained.

(8) Bulkheads shall be constructed with adequate returns to fastland or
connected to adjacent shore erosion control structures, as nay be
applicable.

(9) Because of their possible detrimental effect, shoreline protective
structures may not be approved or recommended for approval in the
following cases, except where there is no alternative means to
achieve a necessary public benefit whose need significantly outweighs
the harm done by the proposed work:

a. Marshland will be filled or otherwise destroyed.
b. Surface drainage channels will be filled or occluded.
c. Navigation will be adversely affected.
d. Unique or rare and endangered flora or fauna will be affected.
e. Important historical or archeololical sites will be adversely affected.
f. Private oyster leases or natural oyster bars in adjacent open waters
will be affected.

b. Junk retal, tires, tree, stups and logs or other material

that does not contain, and will not create pollutents, not
placed as an interlocking structure shall not be used as part
of any shore protection measures.

C. If jetties or groins are used, they must be designed at a
minimum length and height to serve the purpose intended and
only placed in a location not harmful to navigation or to the
land of nearby land owners and the general public. The Water
Resources Administration requests a determination from the
Maryland Geological Survey on such works. Such work shall be
approved only if it does not interfere with public access,
create adverse sand transportation patterns or adversely disturb
the aquatic ecosystem.
d. The approval by t8he Water Resources Administration of any shore
protection measures does not constitute state certification of
the adeuacy of the fixed structures for the particular circum-

(10) The provision of shoreline protection is encouraged in locations
subject to severe erosion where conditions described in
(9) above do not apply. In the review of such projects, in location
determined by Maryland Geological Survey (where applicable) to have
documanted erosion, the Water Resources Administrantior, recommends such

protective works to be constructed in such way to have the minimum
adverse effect upon the ecological, economic, hydrological,
aesthetic, historical, and recreational values in the area.

(11) Permits or licenses may not be granted for shore protective structures or
filling unless adeuate provision is made for drainage from inland
areas. The construction of bulkheads and other protective structures
across wetland areas shall provide only such filling as is necessary

for the effective operation of the shore protection work and shall not
be used for the creation of fast land from watlands except in those
cases where the proposed activity is water dependent and the filling
Complies with other pertinent policy in these guidelines.

(12) Dredging for fill to be used for the efficient oppration of shore erosion

control work is allowed only where access te deposit land source
material is not feasible or costs are excessive and it is determined
not to have an extended or permanent adverse environmental impact.
Dredging seaward of an existing bulkhead will alter the graduated
bottom depth that helps dissipate wave energy. If dredging is used
for fill, adeuate conpensation nay be required by the state for
this material. An example of cases where dredging to obtain

backfill material nay be permitted is where:

a. A steep bank or cliff exists and the nearshorp water depths are
shallow which makes trucking-in or baring-in fill material infeasible.

b. Large trees or buildings prevent trucking-in fill
material.

In both a and b above, however, if grading is to be done, truckin-in
fill material usually becomes feasible. The fact the, dredged
material may be less expensive than trucked-in fill not a major
factor.

(13) The shore protection measures used nust satisfy the following criteria
regarding quality and performance:

a. When site conditions permit the use of a sloping bank stabilized
with vegetation, with or without riprap, this method should be
encouraged as an economical solution while preserving the
natural conditions.

162

SUGGESTED READING

1. Office of Technology Assessment. Coastal Effects of Off-
shore Energy Systems. November, 1976. Both volumes
are recommended.

2. Institute for Water Resources. U.S. Deepwater Port 'Study.
Department of the Army, Corps of Engineers, August
1972,.five volume.s.

3. U.S. Coast Guard. Environmental Impact Statement: Deep-
water Port Regulations (Final). Deepwater Ports
Project, Department of Transportation, 1975.

4. U.S. Coast Guard.' Final:'Environmental Impact/4(f) State-
ment: LOOP Deepwater.Port License Application. Depart-
ment of Tran.sportatioii-, 1976.

5. U.S. Coastu.Guard. Fina'l,'Environmental Impact Statement:
SEADOCK D-eepwater Port License ApplicaElon. Ex@@cutlve
Summary. Department of Transportation, 1976.

6. Department of Transportation. The Secretary's Decision on
the-Deepwat-er Port@License Application of LOOP', Inc.
Washington, D.C., December 17, 1976.

7. Department of Transportation. The Secretary's Decision on
the Deepwater P6rt-License'Application of'SETDOCK, Inc.
WasHl_ngton, D.C., December 17, 1976.

8. U.S. Coast Guard. Recommended Procedure for Developing
Deepwater Ports Design Z@r@lteria. Department of Trans-
portation, 1975.

9. U.S. Coast Guard. Guide to Preparation of Environmental
Analyses for Deepwater Ports. Department of Transpor-
tation, 1975.

10. Deepwater Port Act of 1974 (Public Law 93-627) 33 U.S.C.
1501-1525.

11. U.S. Coast Guard. "Deepwater Ports: Regulations on Licen-
sing Procedures and Design Construction, Equipment and
Operations Requirements; and Proposal on Site Evaluation."
In Federal Register, November 10, 1975.

- 177 -

CHAPTER EIGHT

TANKER SAFETY

PRINCIPAL AGENCY: U.S. COAST GUARD (DOT)

PRINCIPAL LEGISLATION: PORTS AND WATERWAYS SAFETY ACT OF 1972

- 178

The regulation of tanker traffic in coastal waters is as

complex as any coastal water use management issue, and perhaps

typifies better than most issues the potential disparity between

relatively narrow focus federal regulatory program and a state's

effort at comprehensive coastal water planning and management

as part of its coastal zone management program.

During 1976 the potential hazards of tanker accidents be-

came dramatically evident. Congressional hearings as well as

new state and federal legislation followed from a major series

of tanker accidents in December and January of 1976 and 1977.

December 15--The tankerArgo-Merchant,ran aground
in Nantucket Sound, and within six days had spilled
7.6 million gallons of oil.

December 17--The tanker, Sansinena, exploded in
Los Angeles Harbor, after having unloaded more than
500,000 gallons Ap fuel oil.

December 24--The tanker, Owsego Peace, spilled
2,000 gallons of oil into Thames River near Groton,
Connecticut.

December 27--The tanker, Olympic Games, ran aground
in Delaware River, spilling 134,000 gallons of oil.

December 30--The tanker, Grand Zenith, with 8.2
million gallons of oil, disappears 300 miles east
southeast of Cape Cod.

January 4--The tanker, Universe Leader, with 21
million gallons of oil, went aground off Salem,
New Jersey to avoid a collision with Texaco
California, carrying 7-million gallons of oil.

Eighty percent of vessel casualties occur within coastal

and harbor regions. Oil spil 1 clean-up costs are estimated
at $30,000,000 to $35,000,000 per year.2 It is a major prob-

lem that is intensifying in severity; 1976 was a record year

179 -

for oil spills. Total oil imports to the United States are
expected to increase as much as 70 percent by 1980. 3

This inevitably means more tanker traffic, and an increased

danger of accidents. The size of potential oil spills has also

greatly increased. In 1955 the largest tanker afloat was the

Spyros Niarchos with a capacity of 47,470 deadweight tons (DWT).
In 1973 a 477,000 DWT tanker, Gl obtik Tokyo, was launched,4 and

there is a possibility that even larger tankers will be con-
structed.5 Continued reliance upon tanker transport is in part

assured by the announced intentions of Canada to cease all

sales of oil or gas to this country by.1981. This problem

is not restricted to oil tankers. There are also problems

associated with the shipment of liquid natural gas (LNG) and

liquid petroleum gas (LPG), both of which represent different

and in some ways greater problems than oil. Globtik Tankers

USA just recently signed a letter of intent with the Newport

News Shipbuilding and Drydock Company for the construction of

three nuclear powered, 600,000 DWT oil tankers.

Current Problems

1. Some 94 percent of petroleum imported into the*United

States is carried by foreign flag vessels. Many of them,

under "flags of convenience," are in questionable operating

condition, often improperly equipped, and operated by impro-

6
perly trained crew. with projections of major expansion in

tanker traffic, there is justification for.the concern that

present traffic control systems may not be sufficient.

- 180

2. While energy matters are of major national and state

concern, coastal waters now and in the future must meet a

variety of needs. Attempting to accommodate these other uses

may be complicated by growing tanker traffic. OCS oil and gas

development, deep-water ports, floating nuclear power plants,

and other offshore surface and submerged uses are increasing

at the very time when oil imports are expected to increase.

Each of the structures associated with these expanding acti-

vities represents a potential hazard to tanker traffic.

3. If an oil tanker spills.its cargo, the ability to pre-

vent that cargo from causing major water and shore damage

appears to still be greatly limited, as demonstrated during

the Argo Merchant spill. Further, the potential destruction

of an LNG tanker is considerable. The nature and severity

of these potential impacts suggest that tanker traffic may be'

incompatible with some other coastal uses or specific coastal

natural systems (see Chapter Nine).

4. Congress has declared that energy production is in

the national interest. The Coastal Zone Management Act, as

amended, is both implicit and explicit in suggesting that

approved coastal zone management programs must provide some

degree of accommodation to energy-related activities. It is

unrealistic to consider the exclusion of oil or LNG tanker

traffic from coastal waters. Yet any accommodation, especially

during the present period of tanker traffic increase and the

growing importance of coastal waters for other uses, raises a

series of major problems.

181

5. The Coast Guard, which through the Ports and Water-

ways Safety Act of 1972 has principal regulatory authority over

tanker safety in coastal waters, has often stated the position

that unilateral tanker safety standards might harm interna-

tional relations and that regulation through the Intergovern-

mental Maritime Consultative Organization (IMCO) or anothek in-

ternational group,might be more appropriate than attempting to
set our own national standards.7

Methods of Improved Tanker Safety

Several recent studies and reports have suggested a series

of improvements in tanker construction and operation designed

to decrease negative impacts of tanker traffic in coastal

waters. While there are individuals and groups who question

the need, effectiveness, or economic consequences of enforcing

such standards, it would seem that several or most of these

improvements will be required within the near future.

Require tankers to have double bottoms or
double hulls to provide added protection
against spillage if grounding or collision
occurs.

Require inert gas systems to reduce risk of
tank explosions.

Require segregated ballast tanks so that oil
from cargo tanks is not flushed into coastal
waters along with ballast waters.

Require better steering and propulsion systems,
including double rudders and/or double boilers
to provide more control and backup during
equipment failure.

Require better navigation equipment and informa-
tion.

182

Insure better training of officers and crew,
perhaps through the type of testing and
licensing that airline personnel must undergo.

Increase inspection and maintenance on tankers,
especially those more than ten years old.8

No matter how many structural or regulatory improvements

are made, increased tanker traffic in crowded coastal waters

will probably continue to represent a major risk to other

coastal water uses.

Long-range options may exist: aside from reducing our

need for imported oil and liquified gas, new transportation sys-

tems might be established, such as deep-water ports. Traffic

would then be concentrated in special areas removed from high-.

traffic, heavy use coastal waters. This option, which is dis-

cussed in another section, tends more to shift patterns of

tanker traffic rather than diminish it. However for many coastal

areas, such as Puget Sound, it may represent a reasonable alter-

native to increasing numbers of small- and medium-sized tankers.

But even with this type of solution, it can be expected

that most coastal states will be faced with the problem of accom-

modating increased tanker traffic within their coastal waters

in such a way as to protect the coastal zone and also allow for

the expansion of other coastal uses with which tanker traffic

might conflict.

Existing Regulations

The principal regulatory authority for tanker safety in

coastal waters is the Ports and Waterways Safety Act of 1972.

New regulations affecting the implementation of this Act have

183

been issued by the Coast Guard in recent months. They include:

"Rules for the Protection of the Marine Environ-
ment Relating to Tanker Vessels Carrying Oil in
Bulk," Federal Register, December 13, 1976; and

"Navigation Safety and Vessel Inspection Regula-
tions," Federal Register, January 31, 1977.

These regualtions require that both foreign and domestic

vessels engaged in U.S. coastal commercial trade must have

segregated ballast tanks and, except under special conditions,

may not carry ballast water in an oil fuel tank.

Any oil residue from tank washing must be kept in slop

tanks, and discharge of this material is not allowed within 50

miles of the United States coast. These structural and opera-

tional regulations apply to all new vessels constructed after

January 1, 1977. Also required under the new regulations are

certain tests of vessel systems prior to entering a U.S. port

and required types of navigational equipment. In the future

Loran C and collision avoidance equipment may be required.

Regulatory Authority

The Ports and Waterways Safety Act provides the U.S. Coast

Guard with full authority to establish traffic regulatory sys-

tems, vessel and equipment standards, rules of operation, and

traffic control networks, including zones of travel, direction,

and speed.

Coastal states are not preempted from establishing safety

regulations.

. . .nor does it (Act) prevent a state or political
subdivision thereof from prescribing for structures
only higher. safety equipment requirements or safety

- 184

standards than those which may be prescribed pursu-
and to this title." (Section 102(b))

However, as discussed in Chapter Two on Jurisdiction, there are

certain "rules" which might affect a state's ability to estab-

lish such regulations. While this Act clearly does not pre-

clude stricter state regulation, the Constitution reserves for

Congress affairs dealing with interstate commerce. Also, in

the Coastal Zone Management Act of 1972 states are charged

with giving full consideration to the "national interest" and

insuring that political subdivisions of the state do not un-

reasonably preclude developments of regional or national bene-

fit.

New amendments to this Act have been introduced by Repre-

sentative St udds. The amendments would greatly strengthen

Coast Guard authority and responsibility:

H.R. 3796: Ports and Waterways Safety Act of 1977 and Amend-
ments

Title I
Sec 101(a)(1) establish, operate, and maintain vessel
traffic systems or services,

Sec 101(a)(2) require any vessel, which operates within
waters subject to any vessel traffic sys-
tem or service, to utilize or comply with
any such system or service, including re-
quiring the installation and use of any
electronic or other device necessary for
such utilization or compliance.

Sec 101(a)(3) control vessel traffic by
(A) specifying times of entry, movement,
or departure; including if necessary
restriction of passage to daylight
hours;
(B) establishing vessel traffic routing
schemes;

SUBTASK II-D: PRELIMINARY ASSESSMENT OF OPTIONS FOR NEW OFFSHORE (OCEAN)
DISPOSAL SITE(S).

A. Summarize Need for New Offshore Disposal In Relation To Other Existing
Disposal Alternatives.

1. Compare the volumes to be accommodated by preliminary preferred
disposal alternatives.with projected disposal shortfalls to identify
ocean disposal needs.

2. Develop preliminary strategies for inclusion of offshore disposal as
an intergral part of satisfying port-wide disposal needs.

B. Consult With The Corps of Engineers, EPA, and DER Regarding Feasibility
Of Designating New Offshore Site(s).

1. Identify priority concerns..

2. Identify tentative schedule for carrying out necessary
,investigations and securing approvals.
SUBTASK II-E: PRELIMINARY ASSESSMENT OF POTENTIAL FOR BEACH,RENOURISHMENT

A. Determine Suitability of Dredged Material.

B. Determine Suitability of Beach Disposal Area, Including the Following
Considerations:

1. Erosion conditions and wave climate.

2. Sand transport/induced shoaling.

3. Status of state, federal, and local approvals for existing disposal
areas...

4. Identify concerns associated with using new beach disposal areas
With Dept. of Natural Resources, Dept.. of Environmental Regulation,
and Corps. of Engineers.

C. Identify Operational Constraints, Including the Following:

1. Distance from dredging area(s) and associated transportation Costs.

2. Equipment limitations.

D. Assess Ability of Beach Disposal To Meet Overall Port Disposal Needs.

E. Preliminary Determination of Feasibility for Beach Disposal.

I-12

- 186 -

(G) up-to-date charts;
(H) a segregated ballast system, if such
vessel carries oil in bulk and is of
a size in excess of twenty thousand
deadweight tons;
(I) a gas inerting system, if such vessel
carries oil in bulk and is of a size
in excess of fifty thousand deadweight
tons; and
(J) a redundant propulsion source.

Title III: Marine Safety Authority of the United States

A 200-mile zone, seaward of the territorial sea is
established:

within which discharge of oil or hazardous material
would be prohibited
vessel traffic control regulations might be
established;
vessels destined for United States ports might
be inspected.

Sec 403 would establish a national inspection program
and insure that each vessel covered under the Act
was inspected at least once each year.

It is not clear how this Act would affect state coastal water

management authorities, and is an issue that requires careful

attention by coastal states.

Case History: Washington State

The Alaskan pipeline is schedule to begin transporting

oil from Alaska's North Slope by the summer of 1977. It is

estimated that as much as 2 million gallons of oil per day

will flow to Valdez where the oil will be loaded on tankers

and carried to the West Coast. This represents a tremendous

increase in tanker traffic, which currently carried 6.3 mil-
lion gallons of oil into this country daily. 9 Because of this

projected increase, Alaska has continued to urge more stringent

187 -

10
requirements under the Ports and Waterways Safety Act and

Washington State, where much of the oil is scheduled to be

transported to, and has established regulations which restrict

tanker size within Puget Sound to 125,000 DWT. The Act also

requires that:

0 Above 50,000 DWT a tanker must have aboard a
licensed Washington State pilot.

Must have specific horsepower.

Must have twin screws.

Must have double bottom.

Must have two radars, including avoidance radar.
I GLe!j E.- ? I"t"
Ap described in Chapter Forar, the Atlantic Richfield Com-

pany has challenged this law in the courts; and on February 28,

1977 the U.S. Supreme Court agreed to review the case. Resolu-

tion of this case may clarify the nature of coastal state

authority to regulate tanker traffic within.its coastal waters.

- 188

FOOTNOTES

1. United States Coast Guard. "Navigation Safety and Vessel
Inspection Regulations." Federal Register, January 31,
1977.

2. Ibid.

3. Testimony of William T. Coleman, former Secretary of Trans-
portation, before Senate Commerce Committee, January
1977 as reported in Conservation Report, January 21,
1977. National Wildlife Federation, Washington, D.C.

4. Department of Transportation. Final Environmental Im-
pact/4(f) Statement, Loop Deepwater Port License
Application, Executive Summary, 1976, p. 4.

5. In general, see Mostert, Noel. Supership. Alfred A.
Knopf, New York, 1974.

6. Office of Technology Assessment. Oil Transportation by
Tanker, Washington, D.C., July 1975, p. 19.

7. For example, Admiral Owen Siler, U.S. Coast Guard has
stated:
"We have-indirectly received communications from
the State Department advising that we would weaken
our position in IMCO and other international negotia-
tions if we acted strictly unilaterally."
Conservation Report, January 21, 1977, p. 22.

8. Both Supership (see note #5) and OTA's Oil Transportation
by Tanker provide detailed discussions of these and
other possible safety measures.

9. Kifner, John. "Flag-of-Convenience Oil Tankers," New York
Times, February 13, 1977.

10. Conservation News, January 21, 1977, p. 22.

189

CHAPTER NINE

LIQUEFIED NATURAL GAS

PRINCIPAL AGENCY: U.S. COAST GUARD, FEDERAL POWER
COMMISSION

PRINCIPAL LEGISLATION: NONE

190

The principal reason for liquefying natural gas is to

reduce its volume for transport and storage. When natural
gas is cooled to 259P below zero F, it is compressed into a

clear- liquid 1/600 its original size: 600 cubic feet of

natural gas condenses into one cubic foot of liquid. Liq-

uefied Petroleum Gas (LPG), butadine, anhydrous ammonia, pro-

pylene, and vinyl chloride are some of the other gases which

are commonly liquefied by exposure to low temperatures, high
pressures, or both.1

The majorldanger of LNG occurs when and if it is released

f rom its insulated storage tank and exposed to ambient air

temperatures and/or water. It rapidly vaporizes, can cause a

flameless explosion, and may spread as a vapor cloud into

populated areas of fuel storage areas. The greatest damage

occurs when and if this vapor is ignited. The flame can travel

back to the leaking tank, generating intense heat and flames.

Increased LNG Shipments

Interest in importing larger amounts of LNG into the United

States has grown during the last ten years. At the present

time major expansions in LNG tanker capacity are taking place.

The average capacity of the 35 LNG tankers now in operation

is 46,000 cubic meters of liquid. There are 41 other LNG

tankers under construction or in the design stage, and their

mean capacity is 124,000 cubic meters, with plans for larger
ships with a capacity up to 165,00 cubic meters. 2

191

The United States currently exports more LNG than it im-

ports. While 10.8 trillion BTU's of LNG were imported to

Massachusetts from Algeria in 1976, 32 trillion BTUs of LNG
were shipped to Japan from Alaskan fields. 3 But this balance

is expected to rapidly shift. The primary use of LNG in the

United States has been as a source of peak-demand fuel by

municipal gas companies. But with depletion of United States

gas stocks, LNG is increasingly proposed as a baseload fuel,

which would require a major expansion in importations. This

trend is reflected in the changing size of land storage tanks,

which previously had typically been of 50,000 cubic mete r ca-

pacity. Two new controversial storage tanks in Newark, New

Jersey are 14 stories high and have a designed capacity of 38

million gallons of LNG apiece.

The Issues

Many coas tal states can expect to be faced with manage-

ment issues related to LNG shipments or storage. If there is

a pipeline, tanker, or storage tank accident, a flameless

vapor explosion could occur as the liquefied natural gas hits

the water. If a spill is ignited, it burns like gasoline. If

it is not ignited quickly, the vapor may@be blown into popu-

lated areas or fuel storage facilities and then ignited. once

ignited, a flame front burns back through the vapor to the

source.

The sudden destruction of a tank containing liquefied
natural gas would be expected to lead to a major fire
with potential disastrous consequences.3

- 192 -

Substantial improvements in design and safety planning

have been made since a 1944 Cleveland fire-in part as a

result of work done by NASA and DOD on liquefied rocket fuels.

At the present time more than 60 LNG facilities exist in the

United States and Canada, with an excellent safety record.

However, if an accident occurs, the potential for death and

destruction is extraordinary.

Present Safeguards

The Coast Guard has established several types of regula-

tions for LNG shipments, and is developing more as of this

writing. Coast Guard regulations fall within two categories:

(1) design and construction standards for LNG vessels and (2)

operational controls on LNG vessels while entering, moored,

or leaving U.S. ports.

1. Design and Construction. LNG represents special prob-

lems, as it can cause structural damage to a vessel if it is

spilled upon the deck or hull, due to its extremely cold tem-

perature. The liquid can burn human flesh, and is a major

fire hazard once released into the environment. Standards

that have been developed by the Intergovernmental Maritime

Consultative Organization (IMCO), the Coast Guard's Chemical

Transportation Industry Advisory Committee (CTIAC), and Coast

Guard personnel are now leading to several revisions in inter-

national and U.S. codes.

The Coast Guard feels that these new standards provide a

"consistent and reasonable level of safety for the containment
and transportation of LNG. ,4

193

In general, the vessels are designed to survive
two compartment flooding from collision or
stranding with reserve stability. These vessels, as
with other merchant vessels, are not designed to
withstand a major collision or stranding without
cargo release, but the design does limit the re-
lease to the tanks directly involved in the in-
cident.6

Typical of present LNG ves sel design is a tanker under

construction at the Qunicy Shipbuilding Division of the General

Dynamics Corporation. It consists of five spherical LNG stor-

age tanks, each with a capacity of 25,000 cubic feet. Each

tank is shielded and segregated, so that in an accident it is

hoped that at most, one tank would be ruptured. Because of

American harbor depth limitations most LNG tankers will be
limited to a 125,000 m3 capacity, with.a length of 900 feet,

a 150-foot beam, and a depth of 80 feet.

2. Operational Controls. The Coast Guard has statutory

authority to regulate port safety under 50 U.S.C. 191, Execu-

tive order 10173, and the Ports and Waterways Safety Act of

.1972. There are no specific regulations for LNG facilities

under the Ports and Waterways Safety Act at the present time,

but they may soon be promulgated. The Coast Guard Captain of

the Port (COTP) can require a Coast Guard escort, a sliding

safety zone around the LNG tanker, movement only during good

weather, and other conditions.

The March 17, 1977 Federal Register.contains a proposed

amendment to the Ports and Waterways Safety Act regulations to

specifically allow the designation of safety zone s, either

fixed or sliding. This Act also recognizes the authority of

194 -

coastal states to develop more stringent controls, although

that concept is now facing review by the U.S. Supreme Court
(see discussion of tanker safety for further details)...

Coastal Management Considerations

1. Jurisdiction. The Coast Guard currently claims full

jurisdiction over the entire shore terminal, including storage

tanks, loading and offloading equipment, pipelines from the

terminal and the vessel:

In other words, the entire portion of the LNG
system that connects the cryogenic tanker to
the distribution system is of concern to the
Coast Guard.7

Also included in Coast Guard jurisdiction is the movement

of LNG tankers within U.S. waters, especially port areas. But

the Ports and Waterways Safety Act is quite specific (Section

102(b)) in recognizing state authority to also establish

"higher safety equipment requirements or safety standards"

than the Coast Guard may establish. Also, Section 104 of the
PWSA requires that the Coast Gu@ard provide states with "an

adequate opportunity for consultation and comment" prior to

establishing rules, regulations, and standards.

However-, as discussed in the tanker safety chapter,there

are complicating factors of interstate commerce which might

weaken the ability of a state to establish its own regulations.

In any instance, each coastal state and local port authority

retains considerable responsibilities, especially for facility

security.

195

2. Securi ty.. Accidents, terrorist activities, sabotage,

or vandalism could lead to major coastal destruction if some

part of an LNG terminal/vessel system were ruptured or tampered

with. There are few coastal facilities that demand greater

security measurest if an appropriate degree of public safety

is to be provided.

Facilities handling LNG are required to
practice strict security measures in order
to insure safety of the facility and the
port.8

This security is primarily a local or state, rather than Coast

Guard, responsibility although significant Coast Guard/state/

local coordination is necessary in all aspects of LNG manage-

ment.

3. Fire Planning. The Captain of the Port in each port

where LNG is handled will develop and implement his own LNG

contingency plan. This will require assistance from the local'

fire marshall and is established, the regional emergency plan-

ning officer or state police. Special insurance considerations
may be involved, not only for,the facility, but also for adja-

cent property, and this may have significant impacts upon the

immediate v4cinity in terms of costs or special safeguards.

4. Facility Siting. The Federal Power Commissiont under

authority of the Natural Gas Act of 1938 (15 U.S.C. 717) has

permit authority over any LNG land facility. The Coast Guard

has jurisdiction over approving vessel access to a given site.

State and local authorities, under state 'police' powers have

control over specific site determination. In fact, siting is

- 196 -

perhaps the principal coastal management issue of increasing

concern to state programs.

An example of why there can and should be both concern and

careful siting criteria for LNG facilities is provided by a

fuel barge fire that occurred in Mobile Harbor in February of

1977. The towboat, W. F. Fredeman, Jr., was moving four barges

loaded with 109,000 barrels of naptha from a Mobile harbor

refinery when one of the barges hit a pylon of a bridge and

exploded. Luckily, the other barges did not explode. But

a fireboat from the City of Mobile and three Coast Guard vessels

spent some eight hours before the fire was extinquished.

As reported in National Fisherman, there was considerable

danger that the burning barge and flaming fuel on the water

might have floated down on several fuel storage facilities

located merely yards downstream. It could have been "a major

waterfront disaster" if the flames had ignited any of the fuel

stored at the shore facilities. Hard work by the boat crews

and favorable tide and wind conditions were the main reasons

why it was not a major accident. If the spill had involved

the rupture of a 25,000 cubic meter LNG tank, the resultsmight
have been far worse.9

Coastal Planning for LNG Facilities

Advocates of increased LNG shipment and storage in U.S.

coastal regions emphasize the good safety record of present

LNG facilities and operations, and of the increasingly strict

construction and operational standards being developed. How-

ever, LNG remains a particularly difficult substance and set

197

of activities to accommodate. As the Coast Gudard has observed,

LNG is:

A hazardous commodity, although not the most
dangerous being shipped today. It'is pre-
cisely because of the danger of this cargo
that first the Coast Guard, and then others
have studied this material.10

Given the dangers and in some instances community resis-

tence to LNG facilities and shipments, siting is increasingly

difficult. The Coast Guard can provide technical assistance,

but as a policy relies upon local regulations to establish

most of the actual land use siting criteria.

Coastal Dependency

Baseload LNG facilities are highly coastal dependent. The

reasons for this are discussed in the Massachusetts Coastal

Zone Management Preview:

While it is technically feasible to site a (LNG)
facility inland, away from the marine terminal
through which the LNG is imported, the expense
involved would be prohibitive. In addition,
using a cryogenic pipeline running from the
marine terminal to inland storage tanks would
increase the probability of an LNG accident.
The coastal dependency.of baseload LNG facilities
thus limits available alternatives. (2-G/11)

For the same reason, offshore facilities are in most in-

stances impractical. Because of the hazard of the material,

a pipeline rupture from a dragged anchor or other cause might

represent an unacceptable risk to human safety and marine life.

In addition, the cost of special cryogenic pipelines would

make such an arrangement much more costly than an equivalent

oil storage facility.

198

Siting restrictions such as avoidance of fault zones and

avoidance of high population areas may be some obvious con-

cepts, but there may not be any fully acceptable site. Rural

communities may be no more receptive to the appearance and

potential hazards of LNG facilities than their urban neighbors.

Extensive shore and water modification may be necessary to

accommodate LNG tankers and support facilities in rural coastal

areas.

The accommodation of LNG shipments and storage within

the coastal zone is an extrem example, perhaps, of a more gen-

eral management problem of dealing with an activity that tends

to be incompatible with other uses and that while.necessary,.

is not really welcomed. Such activities generate strong polit-

ical opposition and defy simple management solutions. Given

these difficulties, it is interesting to consider the approach

of Massachusetts' and California's CZMP toward LNG management.

California Management of LNG Facilities

In 1976 the State of California adopted the California

Coastal Act (SB 1277) which is the principal mechanism for

the state's coastal zone management program. In that Act is

a specific policy regarding LNG facilities, which is self-

explanatory and is quoted in full, as follows:

Section 30261(b): only one liquefied natural
gas terminal shall be permitted in the coastal
zone until engineering and operational practices
can eliminate any significant risk to life due
to accident or until guaranteed supplies of
liquefied natural gas and distribution system
dependence on liquefied natural gas are sub-
stantial enough that an interruption of service

199

from a single liquefied natural gas facility
would cause substantial public harm.

Until the risks inherent in liquefied natural
gas terminal operations can be sufficiently
identified and overcome and such terminals are
found to be consistent with the health and
safety of nearby human.populations, terminals
shall be built only at sites remote from human
population.concentrations. Other unrelated
development in the vicinity of a liquefied
natural gas terminal site which is remote from
human population concentrations shall be pro-
hibited. At such time as liquefied natural
gas marine terminal operations are found con-
sistent with public safety, terminal sites only
in developed or industrialized port areas may be
approved. (emphasis added)

Massachusetts LNG Policy

Massachusetts has not ruled out expanded LNG-facilities,

but has articulated certain siting criteria. New or expanded

baseload LNG facilities are to be approved at existing sites

only if:

existing facilities cannot accommodate additional
through put;

environmental assessments indicate that public
safety risks and environmental damage would be
less than accommodating larger deliveries or new
facilities elsewhere.

Additionally,

tanks must be sited away from areas of high popula-
tion densities.

design and operation shall reflect the highest state-
of-the-art.

dikes must be able to contain-any LNG which might
escape.

adequate buffer zones must be provided in order to
protect the public from dangers associated with a
spill. (2-G/25)

- 200

Conclusion

The need to protect human population concentrations from

possible LNG accidents or acts of sabotage suggests a require-

ment for careful siting away from floods, earthquakes, hurricane

paths, crowded waterways, other-explosive or flammable sub-

stances, and where -appropriate security can be maintained. As

a final thought, it is important to realize that while LNG

is a dangerous material, it is but one of many hazardous or

toxic materials that must increasingly be considered in coastal

water use planning and management.

201

FOOTNOTES

1. Coast Guard. Liquefied Natural Gas: Views and Practices,
Policy and Safety. February 1976, p. II-1.

2. Drake, Elizabeth and Reid, Robert C. "The Importation of
Liquefied Natural Gas"'in Scientific American, April
1977, p. 24.

3. Ibid., p. 22.

4. Ibid., p. 29.

.5. Liquefied Natural Gas, p. 111-12.

6. Ibid.

7. Ibid., p. IV-4.

8. Ibid.

9. Norville, Warren. "Heroic Small Boat Effort Stifles
Mobile Catastrophe" in National Fisherman, April
1977, p. 24-A.

10. Liquefied Natural Gas, p. 11-8.

202 -

CHAPTER TEN

OCS OIL AND GAS DEVELOPMENT

PRINCIPAL AGENCIES: Bureau of Land Management (Interior)

U.S. Geological Survey (Interior)

Coast Guard (Transportation)

office of Pipeline Safety (Transportation)

Federal Power Commission

PRINCIPAL LEGISLATION: Outer Continental Shelf Lands Act

Federal Water Pollution Control Act
Amendments of 1972 -

National Environmental Policy Act

203 -

In the United States,.growing pressure to lease outer con-

tinental shelf (OCS) submerged lands for expanded oil and gas

production has led to increased state and local concern over

possible coastal impacts, including possible spills and inten-

sified demand for public services. The Phillips platform

blowout only heightened that concern.

By 1974, more than 17,000 wells had been drilled in the

coastal and ocean waters of the United States. However,@more

than 95 percent of this OCS production had occurred off the

coast of Louisiana (CEQ, p. 176). Most states, faced for the

first time with potential OCS leases in 'frontier' areas, have

little experience with oil and gas planning and management.

Further, the reasonable safety record for the Gulf of Mexico

may not be a proper indication of conditions and problems to

be found in Alaskan or North Atlantic waters. Final impacts

are still unknown.

This chapter attempts to describe some possible coastal

water impacts of OCS development, the present distribution of

jurisdictional authority, and proposed changes in basic federal

legislation. The regulatory framework for the planning and

management of OCS oil and gas development is rapidly changing,

after many years as a relatively static system. For those

interested in this topic, it will be particularly important

to monitor pending legislation and regulations, which may well

be enacted during 1977.

CONCENTRATION IN
0.05- UNCONTAMINATED SEDIMENTS

CHROMIUM/ALUMINUM

0.01-

0.005-

y
1 NATURAL RATIO

0.001-
0 X1 20 30 40 50 ppm

CHROMIUM

CONCENTRATION IN SEDIMENTS

FIGURE 1: Sample Graph of the Chromium to Aluminum Ratio
Versus Total Chromium Concentration Reported
In Natural Sediments. Values Falling 0utside
The Stippled Area Are Considered To Be Repre-
sentative of Polluted Sediments, whereas Those
Values Plotted within the Stippled Area Are
Considered Natural, Levels For Chromium.
(X1= 15 PPM; Y2 =.002).

II-16

- 205

Once leasing has oc.curred and wells are in production,

pipelines within submerged lands and possible oil spills are

the two major concerns for most coastal water areas. However,

the primary planning and management task is to incorporate the

development of pipeline corridors, increased port and waterway

use, and related water developments such as the construction of

storage tanks, within the state coastal planning and management

process. This will require a consideration of state authority

relative to OCS activities.

A decision to develop an OCS area will 'lock in' certain

land and water patterns for the adjacent coastal state(s). For

this reason, it is essential that coastal states be able to

participate in all aspects of OCS development. Previously OCS

leasing has been considered primarily a federal rather than a

state activity; consequently states have encountered difficulty

in gaining a voice in the decision process.

Federal Authority

The Outer Continental Shelf Lands Act of 1953 gives full

authority to the Secretary of Interior to lease OCS submerged

lands, and directs the Secretary to expedite oil and gas pro-

duction as being in the national interest (see Chapter Two for

further discussion).

Within the Department of Interior, control over OCS leasing

and production is divided between the Bureau of Land Management

(BLM) and the United States Geologic Survey (USGS). BLM has

responsibility for determining which OCS lands to lease, and

206

for conducting lease sales. USGS has responsibility for the

regulation of OCS activities once the lands have been leased.

Within USGS, OCS development and production management is

conducted through an Area Oil and Gas Supervisor.

The supervisor... shall inspect and regulate all
operations and is authorized to issue OCS orders
and other orders and rules necessary for him to
effectively supervise operations and to prevent
damage to or waste of, any natural resource, or
injury to life or property. The supervisor shall
receive, and shall, when in his judgement it is
necessary, consult with or solicit advice from
lessees, field officials or interested Departments
and agencies ... and representatives of state and
local government. (Sec 250.12)

The principal method of regulating OCS activities is

through a set of 'orders' for each USGS region, although it

appears that USGS is now also working on a national system

of orders. Six major studies of USGS OCS regulations have

been made since 1970, as well as reviews and-comments upon

those studies. These are summarized, with major findings,
in Volume Two of the OTA report on OCS impacts. 1

OCS Orders

There are 15 'orders' which cover all phases of explora-

tion, development, production, and transportation of OCS oil

and gas. Not all of these orders have been prepared for all

regions, but with one exception, they contain the same type

of regulation within each region. The type of information

contained in each order includes:

207

Order No. 1: Marking of wells, platforms and fixed
structures

Order No. 2: Drilling Procedures

Order No. 3: Plugging and Abandonment of wells

@Order No. 4: Suspensions and Determination of Well
Producibility

Order No. 5: Installation of Subsurface Safety Device

Order No. 6: Procedure for Completion of Oil and Gas Wells

Order No. 7: Pollution and Waste Disposal

Order No. 8: Approval Procedure for Installation and Opera-
tion of Platforms, Fixed and Mobile Structures,
and Artificial Islands

Order No. 9: Approval Procedures for Pipelines

order No 10: Sulphur Drilling Procedures off Louisiana
and Texas (limited to Gulf of Mexico)

order* No 11: Oil and Gas Production Rates, Prevention of
Waste and Protection of Correlative Rights

order No 12: Public Inspection of Records

Order No 13: Production, Measurement, and Comingling

order No 14: Approval of Suspensions of Production

order No 15: (no title) State's right to OCS information

The OTA study suggests that these orders have undergone

review and improvement, but that in some instances their degree
of specificity is still questionable. 2 When compared with U.S.

Coast Guard regulations for deepwater ports, the USGS orders

may not be fully adequate.

Additional principal federal authorities over OCS operations

include: EPA, CEQ, and the Coast Guard for the National Contin-

gency Plan and other pr ovisions of Sec 311 of the Federal Water

Pollution Control Act; the Corps of Engineers for dredge or

208

fill or navigation matters; and the Coast Guard for navigation

and enforcement. The specific authorities for pipelines are

discussed below.

State Authority

The Submerged Lands Act and the Outer Continental Shelf

Lands Act clearly establish that coastal states do not have

authority over OCS leasing in any direct sense. The U.S. v.

Maine decision (see Chapter Two for details) further clarified

this, and the Office of Coastal Zone Management, in its thresh-

old papers, has declared that OCS areas will not be included

within the management boundary of a state's coastal zone.

Irrespective of any extended seaward jurisdiction
which may be enacted by law or agreed to under
international convention, states may not include
waters beyond the territ?rla-lsea, In the absence
of specific legislation.

This is consistent with the ruling of the Department of Justice

and the resultant policy of OCZM that federally-owned lands

would be excluded from the land portion of a state's coastal

management zone.

However, as with excluded federal lands, the impacts of

OCS activities upon a state's coastal waters, to the degree

that they are direct and significant, are of concern to the

state and fall under the consistency provisions of the Coastal

Zone Management Act.

As a general observation, the state, and local units of

government beneath it, have an opportunity to influence OCS

development. The new Sec 307 provisions of the CZMA call for

- 209 -

major state review of Interior's regulations and leasing, and

recognizes a limited veto power held by the states if OCS

activities are clearly inconsistent with an approved state CZMP.

States can establish oil spill liability laws (discussed below),

control the location of pipelines within state Waters, regulate

where they will come ashore, and establish other necessary safety

measures. State tax law, although somewhat restricted, may be

used to create a preferred pattern and location of oil and

gas-related development. Local government, through zoning and

land use planning, under authority of delegated police powers

from the state, can have major impact upon OCS development, in

effect establishing where oil and gas may or may not come ashore.

However, it is not clear whether a state could totally preclude

the use of state waters and submerged lands for OCS-related

activities.

Local Authority

The 1976 amendments of the Coastal Zone Management Act

included a new recognition of the need for local government to

be informed of state coastal management decisions, and to con-

sider local zoning and planning in such decisions (Sec 306 (c)

(2) (B). Under these new provisions, any local government whose

zoning authority would be affected by a proposed state program

decision must be given 30 day notification and an opportunity

to comment. This should enable local governmental units to

maintain a good idea of pending OCS-related activities and pro-

vide an opportunity for an expression of local concerns and needs.

240

However, there is also a possibility that local government

may, through its zoning authority., block OCS-related activities

that are otherwise consistent with"a state's program. This is

in fact more than a possibility, and often with good reason. As

Massachusetts observed in its Offshore Oil Development handbook:

...the real long-range benefits accrue all too often
,to the region or the nation, in terms of a more secure
supply of energy, while the immediate costs may be
borne by the locality in the form of increased public
service demands, increased levels of pollution and 4
congestion, and a loss of visual quality.

Coastal water developments may provide desirable types, rates,

and levels of physical and economic development for communities.

However, it is the coastal community that faces the major burden

of supporting coastal water development. These communities may

be required to devote increasing amounts of time, money, and

energy to planning and managing coastal water development.

Some coastal communities might therefore question OCS develop-

ments or use local authority to block terminals, pipelines, or

other coastal water-related facilities.

In recognition of this possibility, the Coastal Zone Manage-

ment Act requires that an approved state program contain 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 (Sec 306(e)(2). However, there

are certain conceptual and political, as well as administrative

problems with attempting to provide such assurance. First, this

provision may tend to disassociate the individual community from

the region of which it is a part. If the collective interest of

211

the communities within a region is not the regional interest,

then who, in fact, determines just what the regional interest

is? Unless there is some truly representative and well-func-

tioning mechanism to articulate the regional interest, there

is the potential that the 'regional interest' will not repre-

sefit the true interests of coastal communities within a region

.who question a particular course of action favored by the state

or federal government. Secondly, many coastal states have

placed considerable emphasis upon local planning and management

as part of their coastal zone management programs. Unless

these local governmental units are provided some convincing

degree of participation in final.allocative decisions regarding

coastal water activities, they may be less than cooperative

in other aspects of the state program.

An Example: Orleans, Cape Cod, Massachusetts

Under Chapter 164 of the General Laws of Massachusetts,

the state has established an Energy Facilities Siting Counsel

(MGLA Ch. 164, S. 69G-R). The Council is given jurisdiction

over the siting of electric generating, gas, and oil facilities.

The Council has broad powers to regulate energy-related facili-

ties, and under certain circumstances can exercise powers of

eminent domain. 'Some citizens have perhaps correctly perceived

this as a potential threat to local control of community land

and water use.

Orleans is a small but growing rural community on the lower

Cape, adjacent to the Cape Cod National Seashore. It experiences

a substantial seasonal population increase during summer months,

212

and its economy is based in large part upon recreational acti-

vities. In the spring of 1977, a proposal was made to modify

Sec 3.11 of Orleans' bylaw so as to preclude storage tanks for

offshore oil or gas, pipelines, service facilities, or helicopter

ports. Orleans retains the traditional New England Town Meeting

process of local government, and the list of prohibited uses was

proposed for community voteat the annual Town Meeting in May.
The article passed by a vote of 200 to 39 on May 3, 1977. 5
In arguing for passage of the article, a local resident

articulated the concern of many coastal communities, and clearly

indicated the intention of the article as a blockage of possible

state action to force the community to accept onshore facilities

to support OCS development.

The only intent of this article is to throw any.
stumbling block in front of oil companies that 6
might want to move in here and take over.

Power of Local Government

On February 17, 1977, Federal District Court Judge Jack B.

Weinstein enjoined further activity on the mid-Atlantic OCS

leases granted in August of 1976. This ruling, which Interior

Secretary Cecil Andrus has announced will be appealed, was

based in part upon the Judge's finding that former Interior

Secretary Thomas Kleppe, in granting the leases, had

ignored the practical effects of local govern- 7
mental licensing, permitting and review powers.

Earlier, representatives from communities in New Jersey and

Long Island had indicated their intent to use local authority

to block pipelines and other OCS-related facilities. While

- 213 -

those advocating OCS development may see such obstructions as

counter to the 'national interest' , many state programs are

placing strong reliance upon local planning and management,
and'the 'national interest' must derive in part from citizens

living within effected communities.

Most if not all coastal water and deep ocean activities

require shore access. Yet the shore is not merely a point of

accommodation for water-oriented activities. It is also the

site of traditional land and water patterns and existent com-

munities, often possessing fragile social, financial and

environmental characteristics. OCS development is a local/

state/federal partnership, each party having legitimate needs

and interests, and each with recognized authority and responsi-

bilities under the law. Federal agencies may find it difficult

to deal with a large number of individual communities, and

may seek state coordination, and local communities may require

state guidance as to how to deal with federal agencies. Fur-

thermore, the state is faced with the task of determining the

overall 'best use' pattern of the state's coastal waters and

adjacent shoreland, beyond the perspective of a single community

or a federal leasing policy. implementing the provisions of

Sec 306(e)(2) of the CAMA to the satisfaction of both local

and federal interests may be one of the more difficult tasks

of a state coastal management program.

Environmental Impacts 'of Oil'Spills

Some reports on the impacts of OCS development have con-

cluded that oil spills are more a public nuisance than a matter

- 214

of major consequence.

Large spills from OCS operations are less of a
problem than smaller, pore frequent spills and
chronic discharges ... Local impacts from a large
spill might be quite severe, but most indications
are that the major effects are short-term in na-
ture. The marine environment is resilient and
has the ability to absorb oil spill impacts 8
through natural processes.

In the past this "resiliency theory" of the ocean and coastal

waters has led to ocean dumping, wetland destruction, and other

activities which.are now increasingly being questioned. During

war and because of past tanker and oil production operations, a

great amount of oil has been discharged into the world's oceans,

with little detectable long-range effect. However, it seems at

best premature to claim that the marine environment is "resilient"

enough to absorb oil spill impacts without effect. Perhaps of

greater importance, oil spills represent a hazard, a nuisance,

and a very significant cost to all coastal water activities.

None of these activities are enhanced by the presence of oil

spills, and some may be totally preempted when and if oil is

present in significant amounts on or in the water.

Major Oil Spill

Two recent oil spills, one from the Argo Merchant in Decem-

ber of 1976 and the other from the Bravo-14 well in the North

Sea in April of 1977, demonstrate that predicting the outcome

of a major apill is difficult. Temperature, wave height, wind

velocity and direction, currents, type of oil, and size of spill

are all contributing factors determining the eventual effect of

the spill. As in the two examples sited, it may be that most of

- 215 - I

the oil will congeal and be "dispersed",by wave action, moved

away from shore by wind, tide, and current, and actually leave

little visible sign of its passage.

However, when considering the total range of possible impacts

from a major oil spill, including the degree to which a wide range

of coastal activities might be disrupted or displaced, it seems

realistic to state, as Massachusetts has estimated, that it
it 9
could have tremendous economic and environmental impacts."

The Office of Coastal Zone Management has also estimated that

Ila variety of adverse environmental impacts can be expected in

the course of OCS oil and gas development activities."

While some of the activities would have minor or
short term-impacts, others, such as the dredging
and filling of wetlands, air and water pollution
from refinery operations, and chronic oil pollu-
tion can be expected to cause serious enrivonmen- 10
tal damage over extended periods of time.

The amount of available information on Oil spills is exten-

sive. Initial information can be obtained from Coastal Manage-

ment Aspects of OCS Oil and Gas Developments (OCZM, 1975),

Coastal Effects of Offshore Energy Systems (OTA, 1976), and

Effects of Offshore oil and Natural Gas Development on the

Coastal Zone (Congressional Research Service, 1976). Several

states have begun to compile extensive information, such as

Massachusetts' offshore Oil Development (1976).. OCZM has

recently published a Coastal Zone Management Annotated Biblio-

graphy (1977) which provides access to other state studies.

Also, Sea Grant programs, oceanographic research centers such

as Woods Hole, and several federal agencies, including EPA and

216 -

National Marine Fisheries Service have or are conducting oil

spill related studies.

Oil Spill Liability

There are several federal and state programs to insure that

those suffering damages or costs as a result of an oil spill can

receive some degree of compensation. Provisions also exist to

insure public recovery of costs incurred in oil spill cleanups.

Federal Programs:

The Federal Water Pollution Control Act (Sec 311), the Deep-

water Port Act, and the Trans-Alaska Pipeline Act each establish

funds to cover costs of oil spills. Proposed amendments to the

Outer Continental Shelf Lands Act (H.R. 1614, H.R. 935) would

establish another oil spill liability system, further complicating-

the federal system. In an effort to consolidate all of these

programs, Rep. Gerry Studds (D. Mass.) has introduced H.R. 2365,

the Comprehensive Oil Pollution Liability and Compensation Act

of 1977.

H.R. 2365

This act would establish a single and all-inclusive compen-

sation fund to pay for all removal costs and other damages re-

sulting from oil discharge. It would consolidate all present or

proposed oil spill funds, and establish a single fund of between

$150 million and $200 million, financed by a three cents per

barrel fee. It would specifically amend the Trans-Alaskan Pipe-

line Authorization Act (87 Stat. 586), the Deepwater Port Act of

1974 (88 Stat. 2126) and the Federal Water Pollution Control Act

(33 U.S. C. 1321).

- 217

Case@Histories

The ability of coastal states to establish oil spill lia-

bility regulations has been challenged on more than one occasion.

Two cases decided by the U.S. Supreme Court are of particular

relevance.

I.' State@of Maine v. Tamano. On July 22, 1972 the tanker

M/V Tamano struck an outcropping off Soldiers Ledge en route to

the port of Portland and discharged into the waters of Casco Bay

approximately 100,000 gallons of Bunker C oil. The State of

Maine brought suit to recover damages. Defendants, including

owners of the Tamano, the Portland Pilots, inc., and the United

States, argued that the State could not recover costs in its

parens patriae capacity as "owner and/or trustee for the citizens

of the State." The basic argument was that the State had no

independent interest in its coastal waters and their marine life

to permit it to sue as parens patriae on behalf of its citizens.

The Supreme Court upheld the right of Maine, declaring that:

If Maine can establish damage to her quasi-sover-
eign interests in her coastal waters and marine
life, independent of whatever individual damages
may have been sustained by her citizens, there is
no apparent reason why the present action to re- 11
cover such damage cannot be maintained.

2. Askew v. American Waterways Operators. In 1970, the

State of Florida established an Oil-Spill Prevention and Pollu-

tion Control Act which provides for recovery of State costs in

oil-spill cleanup, and also imposes strict liability on ship-

owners and terminal facilities for oil-spillage damages suffered

by state or private parties. Merchant shippers, world shipping
p

associations, members of the Florida coastal barge and towing

218

industry, and owners and operators of oil terminal facilities

or heavy industries located in Florida brought court action to

enjoin application of the Florida Act (,L. Fla. 1970, c 70-244).

Several states, including California, Connecticut, Georgia,

Hawaii, Maryland, Massachusetts, Michigan, New York, North

Carolina, Texas, Virginia, and Washington supported Florida.

A District Court found that the Florida law was an uncon-

stitutional intrusion into the federal maritime domain, and that

it violated provisions of the Water Quality Improvement Act of

1970 (basically now the FWPCA) and the Admiralty Extension Act

as developed in Southern Pacific Co. v. Jensen (244 U.S. 205)

and following cases (see Chapter Two for details).

But the United States Supreme Court reversed the District

Court, declaring that:

To rule as the District Court has done is to allow
federal admiralty jurisdiction to swallow most of
the police power of the States over oil spillage
,an insidious form of pollution of vast concern to
every coastal city or port and to all the estuaries
on which the life of the ocean and the lives of the
coastal people are greatly dependent.

The proposed Comprehensive Oil Pollution Liability and Compen-

sation Act of 1977 (H.R. 2365) reflects the Supreme Court deci-

sion in Askew v. American Waterways Operators. Sec 111(a) of

H.R. 2365 states:

Except as provided in subsection (b) of this sec-
tion, this title shall not be interpreted to preempt
the field of liability or to preclude any State from
imposing additional requirements or liability for
damages, within.the jurisdiction of such State, re-
sulting from a discharge of oil.

The only preemption is to require that a federal certifi-

cate of financial responsibility, specified and required within.

- 219

the Act, must serve as the certificate of financial responsi-

bility for any State liability program.

Pipeline Safety

Pipeline accidents have released more oil to the marine

environment than all other sources directly related to OCS
operations. 12 The largest spills have been the result of pipe

rupture from anchor dragging. One such accident in 1967 led to

the release of more than 160,000 gallons of oil into the Gulf of

Mexico before the rupture was discovered and corrected.

Since 1970, pipeline accidents have decreased. The Congres-

sional Research Service suggests that major new requirements

imposed by the Bureau of Land Management are responsible for this

improvement. But their report also suggests that existent pipe-

lines installed prior to these new requirements may in the future

cause problems as they are weakened by corrosion.

An office of Technology Assessment report summarizes the

most common method of pipeline installation currently in use:
... the work would be done by 175-man crews working
on 300-foot 'lay barges' which can assemble and
drop to the ocean floor 1 mile of pipeline per day.
The process involves welding 40-foot sections of
steel pipe, coating them with asphalt paste or
epoxy resin, bathing them in concrete to make them
heavy enough to stay in place on the ocean floor,
and trailing the assembled pipe over the side or
stern. Smaller barges, dragging a 'jet-sled' over
the ocean floor, follow the lay-barges and pump
water through nozzles on the sled to dig a trench 13
into which the pipeline settles.

Current Bureau of Land Management regulations require that

in water depths of 200 feet or less all new common carrier pipe-

lines be buried to a minimum depth of three feet. In shipping

- 220 -

fairways and anchorage areas, pipelines must be buried at least

10 feet deep. Gathering lines between adjacent platforms do not

presently require burial. Continuous line pressure monitoring

systems with automatic shutoff valves or alarms, regular pipe-

line inspection for leaks, electrolytic protection against
corrosion and special exterior coatings are also required. 14

Control over pipelines is presently divided among several

agencies. The authority for design standards is shared by the

Office of Pipeline Safety within the Department of Transportation

and the USGS within the Department of Interior.

Department of Interior authority includes all pipelines

either on state submerged lands or on the Outer Continental Shelf.

DOT jurisdiction is derived from:

� The Natural Gas Pipeline Safety Act of 1968, as
amended (49 U.S.C. 1671 et seq.)

� The Transportation of Explosives Act (18 U.S.C. 831-835)

� Section 28 of the Mineral Leasing Act, as amended
(30 U.S.C. 185)

� Hazardous materials Transportation Act (49 U.S.C. 1801
et seq.)

Deepwater Port Act of 1974 (33 U.S.C. 1501 et seq.)

In May of 1976 DOT and Interior signed a Memorandum of

Understanding Between The Department of Transportation and The

Department of the Interior Regarding Offshore Pipelines. Under

this agreement DOT and DOI will review and comment upon each

other's Proposed Rule Making (NPRMS), and DOT will regulate

.standards for all carrier lines from the production facilities

to shore.

221

The Department of Interior, as authorized in Section 5(c)

of the Outer Continental Shelf Lands Act C63 Stat. 464) grants

rights of way for pipelined in ocean COCS) waters, and sets

safety standards for gathering lines within the production field.

The Coast Guard,through its concern over oil pollution,

offshore law enforcement, and navigational safety would have

authority in certain circumstances, as would the Army Corps of

Engineers, under its navigational and dredge and fill concerns.

The Fish and Wildlife Service and the National Marine Fisheries

service operate under a mandate to consider the type of impacts

generated by pipelines, as does the Environmental Protection

Agency.

Operation of pipelines, rather than safety standards, is

supervised by the Federal Power Commission for gas, and by the

Inters tate Commerce Commission for oil, as specified in Sec 5(c)

of the Outer Continental Shelf Lands Act.

Management Information

Obtaining timely, detailed, and accurate information on OCS

and shore-related activities.remains a maj-or coastal management

problem. It would be naive to suggest that this information will

be easily obtained, but there are several starting points that

might be useful.

1. OCS Lands Act Regulations (Title 30 CFRI Part 250.

30 CPR 250.34 requires offshore oil and gas operators to prepare

exploratory drilling plans, development plans, and an applica-

tion for permit to drill, all of which provide considerable

information of importance to state coastal managers. In 1974

222

these regulations were revised by Interior to require communica-

tion of these plans and applications to affected coastal states.

2. OCS Order No.: 12 CGulf and Pacific Areas) specifies that,

while certain geological and geophysical information shall not

be made available to the public, in accordance with the Public

Information Act (PL 90-23), considerable information will be

available at BLM Area offices. Such information includes:

� Form 9-152: Monthly Report of 012erations

� Form 9-330: Well Completion or Recompletion Report and Log

� Form 9-331: Sundry Notices and Reports on Wells

� Form 9-331C: Application for Permit to Drill, Deepen,
or Plug Back.

� Form 9-1869: Quarterly Oil Well Test Report

� Form 9-1879: Semi-Annual Gas Well Test Report

� Multi-Point Back Pressure Test Report

� Sales of Lease Production

Of importance is that all accident investigation reports, pollu-

tion incident reports, facilities inspection data, and records

of enforcement actions are also available to the public.

3. B.M Area Offices. BLM maintains Atlantic, Gulf of

Mexico, Pacific, and Alaska Area offices, which are key contact

points for coastal managers. BLM has worked with OCZM on pos-

sible state information needs and may expand its information

services.

4. Private'Industry. Oil and gas companies have long

insisted upon the necessity of retaining control over much of

their operational information and this remains a point of

- 223 -

contention that is addressed in proposed amendments to the OCS

Lands Act. However, these companies would seem to have more

information than anyone else. it would be of some importance

for coastal water use program managers to directly contact repre-

sentatives of the specific oil companies involved in OCS explora-

tion and production. Direct contact should also be made with

companies providing.various processing and support services to

OCS operations. If a major offshore field is involved, such

contact may be a major task, but is important for good communi-

cations and information on needs, opportunities, and problems.

5. Industrial Organizations. There are several industry-

related organizations that have considerable information related

to OCS activities, and many of these groups work directly with

USGS on the development of standards and regulations. These

groups may be able to provide information and management assis-

tance to coastal states. Such groups include The American Petro-

leum Institute, the American Society for Testing Materials, the

American Society of Mechanical Engineers, the National Association

of Corrosion Engineers, and the American National Standards Insti-

tute. States should view these groups not only as a potential

source of information, but also as influential participants in

the OCS development process, and.should make every ef6ort to keep

them informed of.state policies, concerns, and needs.

New OCS Management Systems

1. CZMA Amendments. In 1976 Congress amended the Coastal

Zone Management Act to include a special OCS consistency

224

provision to Section 307. (Sec 307(c)(3)(B).

Under the new provisions of Sec 307(c)(3)(B), no federal

license or permit shall be granted for OCS activities unless

the proposed activity is certified to be consistent with the

approved state coastal zone management program of any affected

state. If a state does not concur with the proposed action,

no permit or lecense is to be granted unless the Secretary of

Commerce finds that the proposed activity is consistent with

the CZMA, or necessary in the interest of national security.

To keep these provisions in perspective, however, the amendments

also state, in Sec 302, that there is a national objective of

attaining agreater degree of energy self-sufficiency. Sec 306

is amended to include, in Sec (c)(8), A requirement that the

state program specifically consider the national interest in-

volved in planning for and siting of facilities. Included are

energy facilities in, or which significantly affect, such a

state's coastal zone and which are necessary to meet require-

ments which are other than local in nature:

in the case of such energy facilities, the Secre-
tary shall find that the state has given such con@-
sideration to any applicable interstate energy
plan or program.

While the states have achieved greater control over OCS activi-

ties, having been given a partial veto power over federal leases,

they are also required to recognize an articulated national policy

of supporting some degree of OCS development.

Section 308 of the amended CZMA establishes a Coastal Energy

Impact Program (CEIP) that will allow states and local govern-

ment to obtain some of the 'front-end'money needed to conduct

225 -

impact studies and develop necessary public services associated

with energy development. Together with the Section 307 amend-

ments, these provisions greatly increase the ability of the

coastal state to be informed of and have influence over OCS

decisions.. Proposed modifications of the Outer Continental

Shelf Lands Act may not only give coastal states even more

access to the federal OCS management process, but perhaps also

modify the recent CZMA amendments.

2. H.R. 1614 and H.R. 935. Several proposals have been

made in 1977 for modification of the basic OCS leasing legisla-

tion, which is the Outer Continental Shelf Lands Act of 1953.

At the present time several versions exist, and the final

modifications, if any, cannot be predicted.

a. Need for State Information: Sec 101 recognizes that

states must have timely access to information regarding

OCS activities and an opportunity to review and comment

upon decisions relating to such activities if adverse

impacts are to be anticipated and ameliorated.

b. Advisory Boards: Sec 308(19) establishes Regional

Outer Continental Shelf Advisory Boards. The comments

and recommendations of these Boards must be considered

by Interior, and the Boards are to be given access to

almost all OCS data.

Of possible concern is that these'Board's might somehow

diminish the role of states, and diminish state ability

to effect comprehensive coastal planning and management

- 226 -

systems. The actual relationship between the Boards,

State CZMP's, Fishery Councils, and Interior is not

yet clear.

C. C2m2rehensive OCS Planning: There is a new degree of

emphasis within the proposed amendments for a comprehensive

OCS planning and management plan, than takes into considera-

tion other water activities aside from oil and gas production.

Section 208'(18) requires the Secretary of Interior to under-

take a difficult balancing task. The Secretary is obligated

to balance between the potential for oil and gas development,

potential environmental damage, and potential adverse impact

upon the coastal zone.

To fully achieve a literal implementation of these provisions

would require a sophisticated planning and management infor-

mation system and comprehensive policies on uses of the

waters and submerged lands of the ocean and adjacent coastal

zone that do not yet exist.

d. Amend CEIP Programi H.R. 935 would amend the Coastal

Zone Management Act Section 308 CEIP provisions. The major

change would be to earmark 25% of all federal monies obtained

from OCS sales for distribution to the states under present

formulae of the CEIP program.

e. Oil Spill Pollution Fund: Title III would provide,

within the Department of Transportation, an Offshore Oil

Pollution Compensation Fund, of between $100 million and

$200 million.

- 227 -

Conclusion-

It would appear that during 1977 major changes in the OCS

management process may occur. The current trend of congressional

action appears to be to allow a greatly expanded role for the

coastal states in federal decisions, perhaps reflecting a real-

istic understanding of the degree to which OCS activities can

affect state coastal water and land activities, and the degree

to which state and local government can support or perhaps

preclude certain OCS development plans.

However, it will still be left to the states to place OCS

development and more generally, energy-related use of coastal

waters within a broader resource management context. The costs

and benefits of necessary or desired energy development must be

placed within the context of a dynamic natural system that is

vulnerable, and of a growing number of activities which may be

affected by or have impact upon energy-related uses of coastal

waters. The 1976 amendments to the Coastal Zone Management Act

place greater authority within an approved state coastal zone

management program. But with that increased authority is asso-
ciated an expanded responsibility to insure that necessary

energy needs are met, as well as balanced against the needs for

protecting the coastal water environment and accommodating

a multitude of other activities.

228 -

FOOTNOTES

l.- Coastal Effects of Offshore Energy Systems, Vol. II,
pp. 20-108.

2. Ibid, pp. 100-108.

3. office of Coastal Zone Management. Threshold Paper No. 1:
Boundaries.'

4. Massachusetts Office of State Planning. Offshore Oil
Development, p. 11.

5. Cape Codder, May 5, 1977.

6. Cape Codder, March 3, 1977.

7. Coastal Zone Management Newsletter. February 23, 1977.

8. Congressional Research Service. Effects of Offshore Oil
and Natural Gas Development on the Coastal Zone.
P.. 1.

9. Offshore Oil Development, p. 62.

10. office of Coastal Zone Management. Coastal Management
Aspects of Ocs Oil and Gas Development, p. 39.

11. Environmental Reporter. Decisions No. 10, June 1, 1975.

12. Effects of offshore oil. p. 146.

13. Coastal Effects, Vol I, p. 161

14. Effects of offshore oil, p. 146.

229 -

SOURCES

Fish and Wildlife Service. "Oil and Gas Exploration and Develop-
ment Activities in Territorial and Inland Navigable Waters
and Wetlands", in Federal Register@@,' December 1, 1975.

Maryland Department of Natural Resources. Maryland and Outer
Continental Shelf Development: State and Local Powers to
Manage Onshore Impacts of Offshore Development. Aug., 1976.

Department of Urban and Regional Planning, Florida State Univer-
sity, and Department of Geography, University of South
Florida. Florida Coastal Policy Study: The Impact of Off-
shore Oil Development. Florida Energy Office. Dec., 1975.

Inman, Donald L., Preliminary Assessment of Potential Great Lakes
Offshore Oil and-Gas Operations. Nichigan Department of
Natural Resources. November, 1973.

National Ocean Policy Study. An Analysis of The Department of
the Interior's Proposed Acceleration of Development of Oil
and Gas on the Outer Continental Shelf. Washington, D.C.
March 5, 1975.

Department of Interior. BLM-GS Tract Selection Agreement for OCS
oil and Gas Lease Sales. November, 1976.

11 of . Memorandum of Understanding Between
Bureau of Land Management and the Fish and Wildlife-Service
Concerning OCS Activities. March 30, 1976.

Memorandum of Understanding Between Bureau
of Land Managementf TI-s-hand Wildlife Service, and U.S. Geo-
logical Survey Concerning OCS Environmental Research and
Monitoring Activities. April 30, 1976.

IT is Inter-bureau coordination in the Outer
Continental Shelf (OCS) minerals program. January 19, 1977.

Memorandum of Understanding Between the
De2artment of Transportation and the Department of the
Interior Regarding Offshore Pipelines. May 6, 1976.

Rep. J. Murphy. Outer Continental Shelf Lands Act Amendments
of 1977 (H.R. 1614). January 11, 1977.

Rep. Jughes. Outer Continental Shelf Lands Act Amendments of
1977. (H.R. 935). January 4, 19777.

Rep. G. Studds. Comprehensive Oil Pollution Liability and Com-
pensation Act of 1977. January 24, 1977.

National Ocean Policy Study. North Sea Oil and Gas: Impact of
Development on the Coastal Zone. October, 1974.

FIGURE 2: Typical Pattern for
Running a Transect
Across Navigation
Channel.

If the channel is located near shore, begin the transect near the

shoreline and terminate at the opposite shoreline. Indicate the

location of the station marker buoy on the sensing paper as the

fathometer electrode passes over it (Figure 3). Compass heading,

rpm, drift rate of the boat, as well as starting and end-points of

the transect should also be penciled on the fathometer's recording

paper.

START TRANSECT
1312
9/11/83 STOP
TRANSECT
1316
SAMPLE 9/11/82
STATION
FIGURE 3: Fathometer Printout Marker
Showing Station Marker
Location Relative To
Channel, Transect Limits,
and Channel Depth and
Profile.

PORT MANATEE
CHANNEL
TYPICAL
POINT

III-12 TRANSECT III

PART FOUR

MANAGEMENT CONCEPTS

CHAPTER ELEVEN: COMPREHENSIVE WATER MANAGEMENT

CHAPTER TWELVE: STATE MANAGEMENT PROFILES

- 231 -

- 232 -

CHAPTER ELEVEN

COMPREHENSIVE COASTAL WATER MANAGEMENT

233 -

MANAGEMENT CONCEPTS

Introduction

Most coastal states have been engaged for several years

in some form of water resources management for fisheries,

recreation, shipping, or mineral extraction. But often such

programs are single focus in design, and frequently are isolated

from inland water planning efforts, land use planning, air

quality management or deep ocean developments. As coastal'water

usage expands, and as the interconnection between land and water

activities becomes more critical, there will be greater need to

coord inate these individual programs and authorities into a

comprehensive system that allows both expanded use and resource

protection.

Developing a comprehensive management system for submerged

lands, the water column, and surface waters can seem an immense

task. With the constraints of limited staff and funding, many

states will as a matter of necessity implement such programs

gradually, as both the need and necessary resources emerge.

However, recent acceleration of OCS leasing plans, greater

importation of oil, frequent tanker accidents, growing pressure

upon living resources and water quality, and the continued need

to facilitate increased water use suggest that the benefits of

a comprehensive coastal water use management capability are

already significant. The Coastal Zone Management Act and an

approved state program provide a framework within which such

a capability can be developed.

- 234 -

Objectives

The biological, geological, and chemical characteristics of

coastal water resources are such as to require an unusual degree

of attention to the long-range objectives for use of coastal

waters. Since water and sediment can transmit and hold in sus-

pension a variety of pollutants which represent limiting

conditions for many possible coastal-water uses, care must be

taken in deciding what should be allowed and what should be

regulated or prohibited. Without some comprehensive long-range

goals, it is difficult to establish defensible regulations.

Without specific objectives, such as maximizing commercial

fishing or port expansion, it may be impossible to clearly

identify which impacts are direct or significant, or even

whether they are positive or negative.

Many studies and reports prepared during the past ten years

have identified the need for a national policy for coastal waters,

as well as for the oceans beyond. The Coastal Zone Management

Act is a direct result of the perception of this need. Through

the Act coastal states are designated as the most appropriate

level of government to formulate comprehensive coastal management

plans. However, the Act envisions this management effort as a

partnership of public and private interests, and of cooperation

between local, state and federal government. States have neither

the resources nor the authority to fully effect a comprehensive

management system upon so large.and important a resource as the

coastal waters of the nation, without considerable local and

federal assistance.

- 235

The Regulation of Coastal Water Uses

The heart of the Coastal Zone Management Act lies in

Section 305. Of particular importance for coastal water manage-

ment are Sections 305(b)(2), 305(b)(3), and 305Cb)(5). These

Sections require that an approved State CZMP contain:

�"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". (Sec 305(b)(2)

�An inventory and designation of areas of parti-
cular concern (Sec 305(b)(3)

�Broad guidelines on priorities of uses in particu-
lar areas, including spedifically those uses of
lowest priority. (Sec 305(b)(5)

Definition: Coastal Water Management

Chapter One provided a general definition of coastal waters

and of coastal water use management. At this point a more

specific definition is required.

Coastal water use management can be seen as (1) designating

what shall be permissible uses within the coastal zone, on the

basis of how such uses might impact coastal waters; (2) specifi-

cally establishing a list of permissible water uses; (3) desig-

nating coastal water areas of "particular concern"; and

(4) establishing priorities of use for coastal waters, including

a determination of what uses shall be of lowest priority.

When stated in these terms, it becomes clear that a compre-

hensive coastal water use manangement program will be an extra-

ordinary undertaking, and cause a dramatic shift in how coastal

waters are used. For the first time, all coastal water uses

236

would reflect deliberate public choices, determined through a

State's coastal zone.management program.

A comprehensive coastal water use plan would identify which

activities should have greatest priority in using the submerged

lands, the water column, and/or the surface waters of the terri-

torial sea. Furthermore,- a comprehensive coastal water use plan

would specifically identify whichactivities are to be permitted

within coastal waters, and thus, which activities are not be be

permitted. The importance of various provisions of the Coastal

Zone Management Act which require full public participation and

full cooperation and participation of federal agencies can be

more fully understood in this context. No similar regulatory

system presently exists on a national level, except, to some

degree, for the national air traffic control system administered

by the Federal Aeronautics Administration. For coastal states,

it represents a tremendous responsibility, a complex manage-

ment task, and a major opportunity.

The National Interest

A State CZMP would specify what should and should not take

place within the territorial waters of the United States. How-

ever, Congress required in the Coastal Zone Management Act that,

in determining priorities of use, permissible uses, and areas of

particular concern, full consideration be given to the national

interest.

Sec 307(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.

- 237 -

Sec 306(c)(1). The State (must have) developed and
adopted a management program for its coastal'zone...
after notice and with the opportunity of full parti-
cipation by relevant Federal agencies, state agen-
cies, local governments, regional organizations,
port authorities, and other interested parties,
public and private ...

Since the State coastal water use program would determine

access to the coastal waters of the State, Congress provided

that full opportunity for participation in defining priorities

and permissible uses must be extended to all interested groups.

However, it is somewhat difficult to consider the national

interest unless that interest has been specifically articulated.

Since the Coastal Zone Management Act in large part is designed

to create a national management system where none yet exists, it

is left in large part to the State to attempt to discover what

the national interest is.

Although few specific elements are identified within the

Act, there is some guidance as to what the national interest

might involve, and how it might be determined. There exists

a national interest in defense, in safe navigation, in elimin-

ation of water dumping, in improving water quality, in enhancing

recreational and commercial fishing, in supporting the American

merchant fleet. But there is still no concise statement with

which States can work.

In establishing priorities of use and permissible uses for

coastal waters, States must evaluate all present federal legis-

lation to determine how it might affect coastal water use.

These federal laws, unless modified by Congress, are in fact

not to be changed by the coastal program, ex.cept that their

- 238

administration is now, significantly, subject to coordination,

cooperation, and a consistency review. Sec 307Ce) is quite

explicit about the retention of present federal law.

Sec 307(e). Nothing in this title shall be con-
strued (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 ...

(2) as superseding, modifying, or repealing
existing laws applicable to the various
Federal agencies ...

Present federal legislation tends to be of a single-purpose

nature. Much of it was established prior to the formation of

comprehensive coastal management programs. As state coastal

programs are implemented, it is probable that inherent inconsis-

tencies between those programs and provisions of various federal

laws will appear. If the national interest also includes "wise

use" of coaital waters, previously enacted legislation may have

to be modified to develop legislative consistency with the

coastal zone management concept. It will be primarily a state

task to identify necessary changes as they are encountered. It

is largely through the development and implementation of state

comprehensive coastal planning and management programs that the

Inational interest' in coastal waters can for the first time

be articulated in a rational and detailed fashion. This is to

suggest that while states are charged with working within the

framework of existent law and distribution of authority, that

they should also, through their unique management position,

constantly evaluate present legislative frameworks and offer

suggestions for possible change. It should not be accepted that

239 -

present legislation and distributions of authority are the 'best'

pattern for wise coastal use, until and unless implementation of

State 306 programs demonstrates this to be the case.

The Federal Water Pollution Control Act and Clean Air,Act

Section 307(f) stipulates that:

Not withstanding any other provision of this title,
nothing in this title shall in any was affect any
requirement (1) established by the Federal Water
Control Act, as amended, or the Clean Air Act, as
amended or (2) established by-the Federal Govern-
ment or by any state or local government pursuant
to such Acts. Such requirements shall be incor-
porated in any program developed pursuant to this
title-and shall be the water pollution control and
air pollution control requirements applicable to
.such program.

This requirement includes an implicit assumption that the stan-

dards and provisions of these two acts are consistent with "wise

use" of coastal resources. As states gain experience through

CZMA implementation, they may find that adjustments in the clean

water and clean air programs would benefit coastal management

objectives. Usually states also administer the NPDES provisions

of the Federal Water Pollution Control Act, and also have the

opportunity to designate air quality areas under the Clean Air

Act. If these programs are closely coordinated with the coastal

zone management program, significant control of the coastal water

environment may be possible.

Chapter Five describes a growing number of water pollution

problems that are affecting fishery resources. One of the pur-

poses of@the FWPCA, as specified in Sec 307(f), is to provide

"for the protection and propagation of fish, shellfish, and

wildlife..." But present state and federal standards and programs

240

directed at water quality management may need adjustment if they

are to be consistent with'coastal water management. As described

in Chapter Five, sewage treatment standards that require or en-

courage large amounts of chlorine may be endangering finfish or

shellfish, and perhaps even human health. As quoted in'that

description, at least one researcher has suggested that "we don't

know what we are doing." It isthe opportunity and responsibility

of coastal management programs to begin to make sense of the mul-

titude of federal and state programs. While "wise use" of coastal

waters can be a nebulous concept, it can also provide a standard

against which activities and regulations can be assessed.

Tools for Coastal Water Management

There are a number of devices which states can use through

their coastal zone management programs to regulate the use of

coastal waters. These include zoning, licensing, leasing, estab-

lishment of performance standards, control of public investments,

taxation, shore access policy, permitting processes, and impact

statements. Each of these will.be briefly described, followed

by a more detailed consideration of water zoning.

1. Licenses and Permits. Unless preempted by federal law,
states have the authority to issue permits and licenses
for activities taking place in or making use of coastal
waters. As part of such systems, detailed information
can be required, performance standards imposed, and
reasonable administrative fees charged. This provides
the state with a screening process as to who wants to
do what. It also provides a degree of protection for
coastal water users, assuring that equipment is safe,
rules known, and necessary technical competence obtained.
However, there is the constant possibility that inter-
state commerce or areas of declared federal interest
may be involved. The National Pollution Discharge and
Elimination System (NPDES) of the Federal Water Pol-
lution Control Act Amendments of 1972 is an example of

- 241

a permit system that allows reasonable use while pro-
viding the public with detailed information about
which activities are occurring within public waters,
and what impacts those activities may have.

2. LeasinS!. Many states are allowed by state law to
lease bottom lands and in some instances, by exten-
sion, areas of the water column. The advantage of
leasing over sale is that conditions can be placed
in the lease to insure that if an activity begins to
impart an unacceptable impact upon coastal resources,
the right to use that resource can be revoked.
Leasing allows use, while retaining ownership with
the public. Once states have approved CZMPs in place,
they may find it useful to review the language of
present leasing programs, and consider modifying them
to achieve greater consistency with the CZMP.

3. Shore Control of Access. Most if not all coastal
water activities require some type of shore access,
for support facilities or initial entrance to the
water environment. By regulating the pattern of
shore use, states can also strongly influence the
patterns of water use. Approved coastal zone manage-
ment programs are supposed to have a new shore access
planning element by 1978. In the preparation of
these plans, consideration should be given to coastal
water priorities, and to how the shore access plan
can support such priorities.

4. Public utilities investments. The location and size
of roads, parking lots, recreational areas, marinas,
boat ramps, sewer lines, and water lines can have ma-
jor impact not only upon land use patterns, but also
upon water use patterns. Also, public investments in
harbor improvements, dredging, fish stocking, or habi-
tat improvement can influence where activities occur,
what activities occur, and the impact they will impart.
Perhaps the easiest way to begin incorporating such
investment decisions within a coastal water use
program would be through comment and review upon local,
state, and federal projects. But in some instances.
-a positive action program, rather than influence
through reaction, may be more effective. One of the
greatest difficulties in using these tools may be to
gain acceptance of the need and right of coastal
program participation in such decisions.

5. Taxation. Public tax policy is often used to encour-
age or discourage patterns of human activity. A 'tax
holidy' granted to a desirable project, a differential
tax rate, or a special assessment to cover unusual
public costs, or particular private benefits are all
rather familiar tools that could be extended into the

242 -

management of coastal waters. The Deepwater Ports Act
specifies that adjacent states can develop tax systems
to recover public expenses caused by the Deepwater Port.
This idea could be extended to other activities. How-
ever, there are stringent legal restrictions upon how'
the taxation powers can be used, and there remains a
danger that desirable coastal activities may be dis-
couraged by this or other tools, if used improperly.
Also'Congress has reserved the right of taxation in
some instances, and it will require careful legal and
fiscal analysis if such tools are to be used.

6. Standards. An often effective approach is to establish
standards for particular areas or activities. If stan-
dards are based upon well-founded goals and priorities,
then activities can be allowed or denied use of coastal
waters depending upon their ability to meet the standards
It can be difficult to monitor coastal water activities
to ensure that the standards are being met. It can also
be difficult to establish standards appropriate to a
particular management objective. But if such standards
are based upon protection of the health, safety, and
welfare of the residents of the state, and upon pro-
tect'ing the proprietary interests of the state, this
may be one of the strongest tools available.

7. Impact Statements. Several states, such as California,
Washington, and Michigan, have some form of impact
statement requirement. A special coastal water use
impact statement could be required for critical water
areas or major developments. Or present state-wide
impact systems could be modified so as to include
special requirements consistent with coastal water
management interests.

WATER ZONING

Water zoning is discussed further in this section in an

effort to further identify and explore the complexities of im-

plementing coastal water management.

When a state designates water Areas of Particular Concern,

or establishes lists of priorities and permissible or non-per-

missible uses, it may in effect be establishing special water

zones. Each submerged lands lease for mineral extraction or

- 243 -

aquaculture is a form of zoning. As coastal water use grows

in intensity and diversity, a systematic set of "zones" for

the submerged lands, water column, and surface waters of the

coastal zone may become either a useful or necessary action.

An introductory report on this technique, entitled Water

Zoning suggests that zones can be established either in time

or in space, or some combination of both. Boating can be pre-

cluded from swimming areas, or dredging can be prohibited

during an important shellfish spawning season. Zones could be

confined to the submerged lands, or the water surface. But

most coastal water activities require an activity pathway that

may include land areas, surface waters, air zones, the water

column, and even the submerged lands.

Existing Zones

Developing complex temporal or spatial zones for coastal

waters may seem an expensive and time-consuming task, perhaps

even an impossible one. But as described in Chapter Six, it

is something the Navy does constantly. The Coast Guard is

increasingly involved in complex surface vessel traffic control

systems which involve spatial and temporal zones, and the

Federal,Aeronautics Administration has established major air

zones on both a spatial and temporal basis. The designation of

dump areas, pipeline corridors, discharge pipe locations, water

quality sectors, traffic lanes, anchorage areas or marine sanc-

tuaries are all existing examples of water zoning. In fact, one

of the more important tasks for future coastal water zoning will

be to properly map all of the formal and informal zones that

- 244 -

presently exist, and evaluate them for consistency with program

objectives. There are also 'natural zones created by tide,

current, nutrient cycles, migration patterns, thermal patterns,

and geologic structure. While many of these corridors, regimes,

or cycles may not be visible, they constitute interconnected

webs in space and time that strongly influence both human and

natural activities within coastal waters.

Establishing__Water Zones

Zones can be established to protect the natural waterenvi-

ronment, to control conflicts among activities, or to protect or

promote one or more preferred uses. The objective of the zone

will influence the process and methodology of establishing a zone.

One approach that the Traverse Group is continuing to develop
2
is that of Space-Time Analysis The key concept in this approach

is that each activity can be described as.a network of spatial and

temporal parameters. The objective is to first develop activity

networks for all of the uses to be considered. These are then

augmented by a spatial and temporal description of the activity

arena in which the uses will take place. In the case of an

estuary, the description might include seasonal shifts in shell-

fish and finfish populations, tidal variations, bathimetry, and

other factors relative to the uese being considered. If the

spatial and temporal parameters of each activity are considered,

it is expected that the maximum number of uses with the minimum

amount of conflict or adverse impact upon the activity arena

can be achieved.

245 -

New Hampshire may be the only state to have attempted a com-

prehensive coastal water zoning program. Their approach is des-

cribed in Chapter Twelve. It is somewhat similar to Space-Time

Analysis, especially in its use of inexpensive acetate overlays

to do initial mapping of coastal water systems. For certain

complex issues or heavily used areas, computerization of these

overlays may be required, but often this additional expense is

not justified. It should be emphasized that the time element in

such analysis is of great importance when planning for coastal

waters. Most analytic.approaches developed for land use planning

concentrate upon spatial parameters. But coastal water activi-

ties and coastal water natural systems are considerably more

time sensitive, and temporal analysis can be critical in estab-

lishing a successful allocative pattern.

Authority to Zone

The State of Illinois is now beginning an evaluation of the

possible need for one or more surface water zones within the
Chicago urban area. 3 On the basis of legal analysis, they be-

lieve that they have full authority to establish such zones, if

deemed necessary after further study. However, this is a com-

plex issue and especially in salt-water areas state water

zoning authority is not clearly established.

If a state were to create a water Area of Particular

Concern (APC) and establish a list of permissible and prohibited

uses for that area, it might be subject to challenge, depending

upon the circumstances of the particular zoning action and

depending upon which interests were effected by the regulations.

246

It is suggested that Chapter Two be consulted for additional dis-

cussion on this basic point, but a brief review of potential

limitations will be considered here.

1. Coastal Zone Mana.gemIent Act. The CZMA gives formal
federal recognition of the authority o f the state to
establish comprehensive management plans for the terri-
torial waters of the United States; to establish pri-
orities of use; designate.areas of particular concern;
and determine permissible and prohibited uses for
these coastal waters. Furthermore, the state is given
the authority to review and comment upon federal actions
for the purposes of insuring, to the greatest extent
possible, that such actions are consistent with the
state coastal management program.

However, the act does not otherwise grant new authority
to the state. Instead, existent authority is to be
utilized to the fullest possible extent. It can be
argued that in its requirements of what an approved
program must contain that the act assumes the ability
of the state to establish and enforce water zones.
However, it could also be argued that such authority
must exist outside of the Coastal Zone Management Act
in some other articulation of state authority if the
state is to have such power.

2. The Submerged Lands Act. As described in Chapter Two,
the Submerged Lands Act, which is the basic articula-
tion of state authority in coastal waters, resulted
from a lengthy debate over control of submerged lands
and hydrocarbon extraction. The act recognizes the
authority of the state over the submerged lands of the
territorial sea, and of the living resources of the sea.
But it does not mention specifically authority to
regulate the water column or surface waters.

3. Maritime Law. There is a complex body of national
and inteFn-ational law that relates to ocean activi-
ties in general and to navigation in particular.
Concepts of navigational servitude, right of nno-
cent passage and other elements discussed in Chapter
Two suggest that there is a strong federal presence
in any matter related to surface waters. The degr 'ee
to which this body of special law precludes or con-
strains state coastal water management has not yet
been fully or clearly articulated by Congress or
the courts.

247

4. Ports and Waterways Safety Act
TIV-ers and Harbors Act of 1899
Proclamation 2732 of 31 May, 1947. Chapters Two and
Three U-es--c-Fir-be several federal acts or doctrines of
law which may affect a state's ability to establish
and enforce coastal water regulations. There appears
to be a continued assumption on the part of Congress,
as supported by the Constitution and several court
cases, that when a regulation affects navigation or
interstate commerce, federal authority will have
supremacy over state law. If there is no conflict
in intent or standards, state and federal law may
co-exist. But sometimes any state action is pre-
empted by direct or implied congressional action.
The ability of states to zone submerged lands is
relatively clear. The ability of states to zone
surface waters within the territorial sea is at
best obscure.

The State of Washington established a tanker safety act, as

described in Chapter Eight, which in effect created a special water

zone for large portions of Puget Sound. Within this zone, tankers

larger than 125,000 DWT are prohibited. _The At_1_4n_tkq_Richfield

Company (ARCO), having intended to use supertankers in this water

area, has challenged this law in the courts. The company claims

that the State of.Washington has been preempted from establishing

such regulations by the Ports and Waterways Safety Act, and that

such regulations constitute an unreasonable constraint upon

interstate commerce. In February of 1977 the U.�._SupKeme Court

agreed to hear the case. The findings of the Court could be of

immense import in future efforts at coastal water zoning. But

no matter what the decision is, it is likely that the ability of
--------------
states to regulate surface-wat-er-a-c-tivi-ties-wil-l-r-emain-at-best

a "grey area" of law until or unless either Congress or the

courts- make some definitive decision on this broad issue.

- 248 -

Local Government and Water Planning

The 1976 amendments to the Coastal Zone Managemen t Act re-

quire that the state develop what amounts to an intrastate con-

sistency review program. Local plans must be taken into account

in coastal management decisions and local government must be

given an opportunity to comment upon major decisions prior to

their implementation. This is of particular importance with

reference to coastal water decisions. In many states there has

been historically either an explicit or implicit division of

authority, with local government having strong authority and

responsibility down to the waterline, and the state taking on

more authority and responsibility as distance from shore in-

creases. In reality local actions almost always have some

degree of impact upon adjacent waters, and many communities tend

to see adjacent coastal'.waters as an extension of their community,

whether or not they have actual authority beyond the shore. As

described in Chapter Twelve, Oregon and Washington represent a

striking exception to this pattern. But in matters such as

water quality control, the state remains the primary authority

even in these states.

When the state has primary authority, there is a potential

that local governmental interests may be excluded from management

decisions. The recent CZMA amendments recognize this problem and

attempt to prevent it through stringent requirements for communi-

cation. However, there is also a possibility that local govern-

ment will fail to notify the state of local decisions that affect

coastal waters. The Coastal Zone Management Act stipulates that
the state must develop some mechanism for 'insuring that local

- 249

government does not unreasonably exclude developments of regional

benefit. In a more general sense, the state is faced with the

responsibility of insuring that land use planning, often con-

ducted by local government, is supportive of and supported by

water planning that is often under the authority of state and

federal government.

Many states are emphasizing the role of local government in

the implementation of state CZMA's. There remains a very real

question as to the wisdom or likelihood of success of extending

this form of administration to the submerged lands, water column

and surface waters of the territorial sea. Washington State is

going in that direction, although primarily for the estuarine

and near-shore waters of Puget Sound. But there are several

areas of possible difficulty in such an arrangement. The primary

problem is one of coordination and monitoring. Especially when

dealing with a deep water activity, there are likely to be a

number of federal authorities involved, and the likelihood of

confusion or dispute increases with the number of governmental

units that must be dealt with. On sensitive matters of state/

federal jurisdiction the state may not wish to entrust full re-

sponsibility to local government, and it isunusual for a local

community to attempt to incorporate an extensive list of

Inational interests' within its local plans and policies.

Local communities are likely to carry the burden of most

impacts induced from coastal water usage. They clearly have a

right and a need to participate in coastal water planning and

management. Also, shore plans and policies, if carefully

coordinated with water management, can support coastal water

250

objectives. If not coordinated, effective coastal water manage-

ment may not be-possible. Because coastal water management is

in so many ways different than coastal land management (see

Chapter One), it is possible that coastal states may wish to

develop separate sets of decision'rules and procedures for

coastal waters and coastal lands, insofar as they pertain to

the role of local government.

INCREASED MANAGEMENT: INCREASED PROBLEMS

If sustained use of coastal waters is to be assured, control

over damaging impacts must be attained. Beyond this basic resource

protection, which may be extremely difficult to achieve, it the

need for some conflict avoidance and conflict resolution mechan-

ism between a growing number of user groups.

However, with increased management also come, a number of

new problems resulting from the management effort. Obvious and

important impacts of new management efforts include rising costs

to the general public for government management efforts, and to

the coastal water user, who of necessity is often subjected to

new standards and regulations.

Perhaps the most ironic and sometimes dismaying impact of

new resource management programs is the identification or

creation of new complex management issues that either went

unnoticed or did not exist prior to the management effort.

Increasingly complex trade@-offs are required, along with new

levels of policy analysis and detailed information.

As an example of a management-related impact, the U.S. tuna

fishing industry, while having brought in record catches in 1976

- 251 -

faces a difficult and somewhat uncertain future as a result of

marine mammal protection efforts. To protect porpoise, the tuna

industry is being subjected to increasing regulation, including

technological shifts. As discussed in Chapter Five, net setting

on porpoise schools has been challenged in the courts, resulting

in a U.S. federal court order against the practice by late 1976.

New fine-mesh nets costing as much as $100,000 apiece seem to

offer some increased protection to the porpoise, as do certain

net-setting techniques. But the point is that with coastal and,

ocean waters being subjected to increasing management scrutiny,

many traditional activities will have to shift in their method

or area of operation to accommodate more comprehensive, multi-

purpose management objectives. In the past porpoise may have

been seen primarily as a good indicator of yellowfin tuna. Now

it is seen as a valuable marine species that must be accommo-

dated and protected, along with the yellowfin fishery. Espe-

cially when dealing with natural marine species or systems,

there is often little leeway, and it is the human activity

which must be adjusted.

As reported in the April, 1977 issue of National Fisherman,

South Carolina trawler fishermen are currently cooperating in a

study of the impact of trawling upon loggerhead turtles, which

may in time be considered for listing as an endangered species.

The fishermen hope to demonstrate that shrimp trawlers do not

capture a significant number of loggerhead turtles incidental

to their fishing operations, and that present trawling tech-

niques do not have any significant impact upon loggerhead turtle

mortality rates. The South Carolina fishermen correctly perceive

252 -

that if the loggerhead becomes a managed marine species, there

may be some pressure to modify the equipment or practices of the

$25 million southeastern shrimp fishery, unless the trawling can

be shown to be of little impact upon loggerhead survival.

Increased Costs

An area which requires much more information and policy

evaluation at both the state and federal levels is the question

of the direct and secondary,costs of a particular management

system. This refers not so much to the direct operating costs

of staffing a program and enforcing its policies, although

these too are critical considerations. Rather, reference is

made to the need for yellowfin tuna fishermen to change net types

and test new net-setting techniques, at increased cost, in order

to accommodate a new policy for porpoise. A perhaps more dramatic

example can be found in Lake Michigan, where Michigan regulations

have led to the virtual collapse of the commercial fishing indus-

try. While seining equipment and methods may eventually allow

the re-development of a commercial fishery that in the past

relied upon gill nets, it will represent a major cost to many

individuals.

While these may be necessary costs for the sustained use of

finite resources by a growing number of user groups, these costs

are significant, and at some point should be directly evaluated

as part of the resource allocation process.

Prior Claims

As an associated consideration, it is often the case in

coastal water management that in order to accommodate some new

253 -

activity, a traditional user will have to be either displaced

or required to alter usage patterns. It can not be over empha-

sized that what can occur and how it can occur within coastal

waters depends in large part upon how many activities, how many

people, and what level of vitality and durability of natural

environment are desired. At one level, such a statement is

overly obvious. But for most coastal water use management pro-

grams, the implications are major. If porpoise survival.is of

no, or little, concern then the yellowfin tuna harvesting tech-

niques that can or do destroy large numbers of porpoise may be

the most economic and efficient method, and could be allowed to

continue. But when porpoise are to be protected, or water qual-

ity is to be kept within some specified range, or the continued

use of coastal areas for certain industry is to be assured, then

certain performance standards or types, ranges, and locations of

behavior must be imposed upon other potentially competing acti-

vities, including new ones and also those which already exist

and may be heavily resistent to change.

Choosing Alternatives

Coastal water use management is in large part a question of

making choices among and between alternative patterns of natural

systems and human activities, allocating air, water, and submerged

land space and resources to some limited number of interest groups.

Some of the allocative decisions are outside of human control at

this time, with natural dynamics still being the primary defini-

tion of what can and can not occur.

2)54

Other allocative decisions are made by Congress or the Office

of the President, in decisions to encourage ocean development,

establish certain air quality standards, or protect a given

marine species. But the state, through its CZMP, will increas-

ingly be faced with both the responsibility and the opportunity

of making coastal water use allocative choices. Each state, each

resource manager, will bring expertise and regional needs to the

choices, but certain general concepts or rules may be of value.

The greater the changes which a use will impart upon coastal

waters, the fewer other uses which can take place within that

same activity arena. There may be several important exceptions

to this concept, but it is often a useful starting point.

Water or coastal dependency is both a very solid and a very

soft concept for allocation. Some activities could not take place

without a coastal or water location. That does not in an of it-

self enshrine such "dependent" uses with a superior claim to

finite and valuable resources. Some activities could take place

butside of the coastal zone, but at increasing cost. Thus there

is more than one type of dependency; it could be based upon costs

of operation, costs of moving from present site, or some actual

technical coastal-dependent requirement.

Most if not all human activities could benefit in some way

from a coastal location, if only as a matter of aesthetics,

e.g., a major apartment complex, or corporate headquarters.

- 255 -

Consistency

The degree to which states are able to review and comment

upon federal actions, and to enforce consistency with the

approved coastal management plan may determine the success of

the state program. The state has not been given primary autho-

rity for coastal water management. It has been given an oppor-

tunity, and perhaps a responsibility. But several important

authorities are reserved for the federal government. It has

been suggested in Chapter Two that the Coastal Zone Management

Act may be unrealistic in its continuance of the present distri-

bution of authority, with neither federal or state government

having sufficient authority to really achieve comprehensive

coastal management (land and water). The Coastal Zone Management

Act relies to an extraordinary degree upon cooperation and the

consistency provisions of Section 307. It is presently impos-

sible to accurately discuss how or if the consistency provisions

of the act will work, since final rules and regulations are

still in the formative stage, and already a point of contention.

But unless the final rules and regulations are quite different

than currently anticipated, they could serve as a positive and

essential tool for coastal water management.

The submerged lands, water column, and surface waters of

the coastal zone represent an immense management task in terms

of sheer size. The biologic, chemical, and geologic complexity

of this resource, combined with historic and emerging patterns

of human use make it a task beyond the resources of most, if

not all states at the present time. Yet there is a need for

planning and management. This can be achieved if the resources

- 256 -

of the many federal agencies involved in ocean and coastal

planning and management can be used. Consistency is usually

envisioned as relating t o some development, such as a pro-

posed deepwater port. However, it is possible that consis-

tency-could also apply to federal actions such as the design

and implementation of a research program. If the state were

able to secure agreement with a federal agency before it

commenced an inventory or research project,, it might assure

that the resulting information was of use not only to the

federal agency, but also to the state coastal management

program.

Strategies for enforcement and monitoring could be deve-

loped among states, and between states and federal agencies such

as the Coast Guard. It is arguable that even the budget formu-

lation process of one or more federal agencies could have a

direct and significant impact upon a state's coastal waters.

While comment and review upon federal activities will always

be a politically sensitive matter, it holds potential as a

method of bringing more resources to a coastal management

program than would otherwise be available. Federal agencies

have thousands of people, access to major data banks, exten-

sive research reports, expensive equipment, and a legal mandate

for action which, if linked to the state coastal program could

make possible a comprehensive approach that states by themselves

would not be able to achieve. Because of a strong concern about

possible conflicts between federal and state interests, the

consistency provisions of the act have often been seen in a

negative, contentious role. Yet these provisions could also be

257 -

used creatively in a positive, cooperative effort to link federal

and state actions.

Long Range Planning

A review of present state coastal management efforts reveals

that in mos'%-- instances the coastal water element is much less com-

prehensive than the land use element. Also, coastal water manage-

ment seems in many cases to be devoted almost entirely to a

reactive mode, developing procedures for reacting to proposed

actions by non-CZMP interests. Having a reactive capability is

certainly a necessary part of a coastal water management program.,

and it is perhaps the best place to start. But reacting, if not

accompanied by comprehensive planning, is in fact management by

default. Under such conditions, "wise use" can be neither

defined nor assured.

The nation has an extraordinary opportunity to develop com-

prehensive coastal water use plans and management systems now-,

at a point when coastal water use appears ready to greatly

accelerate. There is an opportunity, but also a need, to deter-

mine just what wise use might be, and how to promote it. It is

a question of what should occur rather than what does occur.

The 1976 amendments to the Coastal Zone Management Act

require the establishment of comprehensive shore access plans by

1978. Many states, as part of their access planning, have

adopted the allocative principle of coastal dependency. Those

activities that are most dependent upon a coastal location are

given priority over activities that could be located elsewhere.

While "dependency" is often a relative term rather than a concrete

258 -

measurable standard, it seems to provide most states with a work-

able rule for resolving conflicts between competing activities.

However, one long-range consequence of this policy is to

maximize.future pressure.upon coastal waters. Also, it leaves

unanswered questions of which coastal-dependent activities should

be given priority. Some activities are dependent upon shorelands,

some upon estuaries, some upon the deep waters of the territorial

sea. The concept of dependency as it is being articulated today

may provide some guidance in sorting out competing land uses.

But when and if comprehensive coastal water planning is under-.

taken, this principle may require some refinement. Ultimately,

coastal access may reflect priorities of use established for

coastal waters.

Conclusion

Coastal waters receive impacts from the ocean, from the

atmosphere, and from the land. Concurrently, coastal water

management decisions can have direct and significant impacts

upon these other systems. Attempting to establish some struc-

tured priority of uses for this complex, sensitive and valuable

system represents a new level of resource management. However,

the need for such management is great. The ability of coastal

waters to support abundant populations of finfish and shellfish

may be at stake. Certainly major problems exist. And maximum

benefit cannot result unless there is some order, some evaluation,

some monitoring, and some regulation. Coastal water management

need not impair economic activity. In fact, it is a necessary

adjunct to increased use. The Coastal Zone Management Act does

- 259 -

not provide the states with sufficient authority to readily estab-

lish comprehensive'management programs for coastal waters. But

it does provide an opportunity, a framework, from which a compre-

hensive program might be fashioned through creative use of exis-

tent authorities and cooperation. It is possible, even probable,

that the present distribution of authority will have to be adjusted.

And new powers may have to be created. However, there is sufficient

authority and a basic congressional mandate to allow an initial

attempt at comprehensive coastal water management; and a growing

number of reasons why it should be undertaken.

- 260

Footnotes

1. Ryner, Peter C., Water Zoning: The Management of Surface
Activity On Lakes, Streams,Rivers and Bays. Univer-
sity of Michigan Sea Grant Program. March, 1973.

2. Ryner, Peter C., Environmental Impact Planning. The
Traverse Group. Ann Arbor. Unpublished Manuscript.

3. Interview with Chris Schaefer, Illinois Coastal Zone
Management Program. April, 1977.

- 261 -

CHAPTER TWELVE

STATE MANAGEMENT PROFILES

ILLINOIS -

FLORIDA

MASSACHUSETTS -

NEW HAMPSHIRE

WASHINGTON

OREGON

- .262

ILLINOIS

The Great Lakes contains 95,000 square miles of water, or

some 65 trillion gallons, which represents almost one fifth of

the world's fresh water supply. The lakes and their connecting

waterways form the world's largest inland water transportation

route, which is 2,300 miles long.

Within this system, Lake Michigan is the only lake that

is entirely within United States jurisdiction. Control over its

waters and submerged lands-is shared by Wisconsin, Illinois,

Indiana, and Michigan. This lake is 300 miles long, in places

is more than 900 feet deep, and has 1600 miles of shoreline.

Illinois, with only sixty miles of shoreline, has one of

the shortest coastal zones of any coastal state. However, it

faces a number of complex issues, and is the site of extensive

shoreline development, including the city of Chicago and the

Calumet River port complex. While Illinois is still in the

development stages of its coastal zone management program, it

has already established some coastal water use approaches that

are of interest. Three elements of particular interest are its

fisheries management program, its management approach to offshore

sand deposits, and growing interest in surface water zoning.

Fisheries

The Lake Michigan Fisheries were greatly reduced during the

1950's and 1960's' by lamprey predation and overfishing. A mea-

sureable deterioration of water quality further accelerated the

263 -

decline. Illinois, as part of its coastal zone management pro-

gram, has identified commercial and recreational fisheries as

priority uses of lake waters, and during the 1977 work program

will initiate a research project to rebuild the previous indi-

genous fisheries, especially lake trout.

Extensive plantings of lake trout have occurred; however,

the system is basically an artificial one as the lake trout are

not reproducing naturally. While it is not clear why there is

reproducing failure, the Illinois Coastal Zone Program, in coop-

eration with the State Department of Conservation (DOC) will

conduct a stocking program. An attempt will be made to re-estab-

lish natural breeding areas within a series of submerged dolomite

reefs which once functioned in that capacity.
of particular interest is that after having established

the priority of fisheries management, the Illinois program fur-

ther established that the offshore reefs constituted a critical

habitat resource and designated them as Geographic Areas of

Particular Concern (GAPC'c) as provided for in the Coastal Zone

Management Act. Illinois felt that a GAPC designation would

afford these reefs a greater degree of protection and would also

insure a degree of management attention that might not otherwise

exist. Other states, such as Massachusetts, feel that GAPC

designations for such areas are not necessary.

One critical problem that Illinois shares with other Great

Lakes states is a serious water contamination by poly-chlorinated

byphenyls (PCB's). As described in Chapter Five, this is an

increasing problem that appears to be extending into many coastal

waters. In some instances, such as occurs in Michigan, it has

264

been determined that the bioaccumulation of PCB's within some

fish, particularly coho salmon, is so severe as to render the

fish a human health hazard. The impact this water quality pro-

blem will have upon Illinois' fisheries management program is

unclear at this time. It could be involved in the reproduction

failures of lake trout, and.might render various finfish unfit

for human consumption.

Air Quality and Water Quality

Of potential importance to coastal water management efforts

in other states is the finding that atmospheric transport and

deposition of air pollutants may be a significant mechanism for

water pollution. In a program report, the Illinois Coastal Zone

Agency states that:

A special study demonstrated that atmospheric fallout
of PCB's may be contributing much greater amounts of
PCB's to Lake Michigan than are being contributed
by industrial and municipal effluent.

In future years regulatioi@ of atmospheric emissions may be a

critical part of coastal water use management.

Sand Deposits

Sand deposits beneath coastal waters represent an important

resource, one that is of growing commercial interest in many

coastal states. Illinois has taken a somewhat unique approach

to this resource that may be of interest to other coastal states.

First, Illinois, with the cooperation of the State Geologic

'Survey, has developed full maps of all sand deposits within

nearshore areas. Based upon hydrographic studies and a series

of drilling profiles, these maps provide a clear inventory of

265

all significant nearshore sand deposits at a scale of 1 inch

200 feet.

Having established this inventory, the State considered

declaring these deposits as a GAPC. However, it was decided

that the State already had full authority over the deposits and

that GAPC designation would not have any particular advantage.

The policy which the state has established is that these depo-

sits will not be used for commercial purposes. Instead, they

will be used only for beach nourishment.

Much of the Illinois shore is highly erodible, and shore

erosion can be critical, especially during years of high lake

levels. Also, unlike some other coastal states, Illinois has

a very limited supply of coastal sand. Thus the official pri-
ority use of this resource is for beiach nourishment.

During the 1977-78 work program the state intends to initi-

ate a first test program of beach enrichment. Sand will be

dredged from offshore deposits, transported by barge four miles

north, and deposited on the Illinois Beach State Park, which

is a GAPC in the northern sector of the state's coastal zone.

Placed at the shore's edge, it is expected that near-shore

currents will distribute the sand in a natural pattern of depo-

sition. After careful monitoring and any necessary adjustment,

this program will be extended down the shore.

Dredge Spoil Disposal

The United States Environmental Protection Agency has pro-

hibited any further disposal of dredge spoil within the coastal

waters of the State. At the present time polluted dredge spoil

is deposited in a specially designated diked area in the Calumet

- 266

harbor region (although there is a need for further provisions).

As for clean spoil, the Corps of Engineers has agreed to the

deposition of this material as strategic stockpiles along the

shore, as part of the artificial beach enrichment program.

Surface Water Zoning

Because of its intensive development, the Illinois coastal

zone generates and attracts a considerable amount of surface

water activity. Initially other coastal management issues and

tasks were identified as being of greater priority, but during

the next year Illinois intends to give detailed consideration

to the possible need, benefits, and methods of establishing a

surface water zoning system, such as discussed in Chapter Eleven.

Of primary attention will be the possible conflicts among

various types of boating activities, and between these and other

surface water uses, such as swimming. As discussed in Chapter

Eleven, this might include either temporal or spatial zoning, or

some combination of the two. Illinois has determined that it

has full authority to implement such techniques, if they become

necessary.

military Use of Coastal Waters

There is one surface water conflict that may be difficult

to resolve. North of Chicago the Navy operates the Great Lakes

Naval Training Center, which, as federal land, is excluded from

the Illinois coastal zone management program. However, as part

of its use of this shore property, the Navy has established a

rifle range that is oriented so that rifle bullets regularly

267

travel over the surface of the coastal waters. Considering that

high powered military rifles are used, this is judged to be a

hazard.

To prevent accidents, the Navy has marked the range on

charts and during times of use. the water area is marked by flags

and buoys. In effect, this has become a military water zone, a

water extension of the Naval base.

However, it is not clear to the State that the Navy has the

authority to establish such a zone. The State of Illinois claims

full authority. Furthermore, the State has established, as re-

quired in the Coastal Zone Management Act of 1972 for approved

programs, a set of permissible uses. It has established two

general categories of use: High Priority Uses and Low Priority

Uses. The principle criterion for inclusion in a high priority

category is dependency upon a-coastal location: the activity

must, of necessity, have to be located on or near the water.

Other uses that do not have to be located within the coastal

zone are assigned to the low priority category.

With reference to the Great Lakes Naval Training Center,

the State feels that the use of surface.waters for a rifle

range is not only a hazardous use, but an unnecessary one.

Apart from the harbor facilities for naval opera-
tions, none of the activities on such bases are
truly coastal dependent. Further military uses
in the coastal zone which are not coastal-depen-
dent are not considered desirable or necessary.

The Department of the Navy appears to see national defense

and national security not only as important matters of national

interest, but also as highest or overriding priority uses for

coastal areas. In this instance, they have indicated that the

- 268 -

training center is seen.as an essential part of its national

defense and national security responsibilities.

The issue is an important one, for while the concept of

surface or subsurface zoning may be rather straightforward, the

ability to implement and enforce such zones will depend upon

cooperation and acceptance of the legitimacy of such zones by

coastal users. As in many other coastal areas, the Navy has

established a de facto surface water zone for the use of

military weapons. The State has declared such a use as being

neither necessary nor desirable. Since the range is located

near recreational boating facilities, it is probable that the

State would consider establishing a surface water recreational

zone that would tend to preclude the use of water areas for

rifle range purposes. The shore facility is excluded from the

coastal program, but it is not clear that the adjoining coastal

waters are. Without specific congressional mandate, it is ques-

tionable that the Navy has authority to establish such a water

use zone, at least without state concurrance. When the activity

is not coastal-dependent, as appears to be the case in this

instance, then the Navy's possible claim to overriding national

interest is perhaps even weaker.

However, this reflects a serious national coastal water

issue. Nationwide, there are extensive water areas which lie

within state coastal waters yet which have been designated as

being military zones. If necessary national defense considera-

tions are to be met and if an endless set of conflicts are to

be avoided, it will probably be necessary to take a broad

examination of this situation and to re-evaluate the purposel

269 -

location, and necessity of each such military zone. As non-

military uses of coastal water resources increase, so might

the conflicts between state and Department of Defense interests.

Chapter Six discusses this in more detail.

offshore Islands.

An interesting coastal water use issue exists in terms of

planned construction of large offshore islands in Lake Michigan,

along the Chicago urban coastline. These islands would be built

with fill material from subway and storm sewer construction.

This use of coastal waters'and submerged lands will have a

major effect on the coastal zone. Current studies are underway

to determine the positive and negative impacts of such a develop-

ment. How this development would fit into a comprehensive water

use zoning program has not yet been established. The Illinois

Coastal Zone Management office is working with the City of

Chicago in examining this.,proposed development.-.

Water zoning techniques have been proposed for control of

water uses, once the islands are completed.

270

SOURCES

1. Chris Schaefer. Illinois Program Coordinator. Interview
in Chicago, April, 1977

2. Illinois Division of Water Resources. Illinois Coastal
Zone Management Program: Preliminary Draft.
November, 1976.

3. Taussig, Wexler and Shaw, Ltd. The Legal Framework:
Toward A Management Program. Illinois Department of
Transportation. Junef 1976.

4. U.S. Army Corps of Engineers. Chicago Harbor, Chicago
River and Calumet Harbor and River Confined Dredge
Disposal Area Site Selection Study. Chicago Dis-
trict. November, 1976.

- 271 -

FLORIDA

Florida has one of the largest coastal zones in the United

States, and due to its location within the Gulf of Mexico and

Atlantic Ocean systems, it is particularly rich in natural marine

systems. Some 25 million tourists visit the state each year, and

its coastal zone is one of the primary reasons for this industry.

The coastal waters, including a water zone of three nautical

miles in the Atlantic Ocean and three leagues, or nine nautical

miles, in the Gulf of Mexico, encompasses some ten thousand

square miles, almost one fifth the size of the State's upland

areas. It incorporates vital transportation networks, defense

and research activities, open waters, mangrove islands, oyster

bars, coral reefs, grass flats, and coastal marshes. It is a

sensitive system that has experienced problems with 'red tides,

growing indications of finfish problems, and incredible rates of

residential and commercial growth. It is also, however, a State

with a number of resource management programs that if success-

fully combined, would constitute a strong coastal water manage-

ment program.

Coastal Coordinating Council

In 1970 the State Legislature passed Act 259, which created

� Coastal Coordinating Council, which functioned until 1975, when

� state reorganization took place. It passed on many of the

functions and responsibilities of the Council to the Bureau of

Coastal Zone Planning, which currently directs the Florida CZMP

.effort. Of several mandates placed upon the Council, perhaps

the most important was to:

- 272

develop a comprehensive state plan for the pro-
tection, development and zoning of the coastal
zone, making maximum use of any federal funding
for this purpose.

While that comprehensive plan was never completed, a con-

siderable amount of important work was done, and serves as the

basis for the present Florida coastal management effort. This

work included a detailed inventory of the Florida coast, the

development of most of the presently used Florida coastal man-

agement concepts, and the preparation of a series of maps of

use for local planning.

Local Government

Florida's CZMP places considerable reliance upon local

units of government, although not as much as Oregon or Washington.

The Local Government Comprehensive Planning Act of 1975 requires

that local governmental units develop comprehensive plans by

1979. The strategy of the Bureau of Coastal Zone Planning is

to provide local governmental units with detailed inventory infor-

mation and a set of State policies and guidelines, for incorpora-

tion within the local program. At this time a nine volume

Florida Regional Coastal Zone Management Atlas is being distri-

buted to local governments as a detailed planning and management

assistance effort. Reflecting earlier efforts of the Council,

this Atlas uses graphic presentations in an effective manner.

Permissible Uses

The waters and lands of the coastal zone have been classi-

fied into one of three categories (protection, conservation and

development). These categories reflect State CZMP objectives

273 -

and policies, and serve as an articulation of what uses should

occur in each type of area. It is expected that these classi-

fications will be incorporated into the local comprehensive

plans, and also be acknowledged by other State agencies.

State Waters

Reflecting the State water quality management program, the

waters of the State have been divided into five classes of water.

These waters, as well as a set of coastal land types, have then

been further divided into one of three principal management cate-

gories: protection, conservation, and development. The Bureau

has developed matrices for each of the three categories which

should be consulted for complete details (see citation at end

of presentation). These matrices include all of the land and

water types that fit within the use category, and then list fac-

tors such as priority use, State's management objectives, general

State policy, responsible State agencies, and existing State

regulations. Thus in the Preservation category, Class II waters

have as a priority use shellfish harvesting and propagation of

marine life. As a general State policy, no dredging will be

allowed in Class II waters except for the maintenance of existent

navigation.channels. In the Conservation category, Spoil Islands

have as a use priority recreation, bird/wildlife habitat, and

aesthetics. The general State policy is to keep spoil islands

as undeveloped areas to be utilized as green areas, bird habitat

and water-oriented recreation areas.

This is a water zoning system, combined with a coastal land

zoning system, and it is intended to be used by both state and

- 274

local government. To simplify and clarify, maps showing these

areas are printed with red for preservation, yellow for conser-

vation, and green for development. This can then serve as one

basis for consistency review, and for communication with federal

agencies regarding state policies and concerns.

Aquatic Sanctuaries

Florida has placed considerable emphasis upon land and near-

shore planning and management, as have the majority of coastal

states at this time. In addition, Florida also has developed

a somewhat unusual water management system involving the desig-

nation of certain submerged land areas as "Aquatic Sanctuaries".

The concept of aquatic preserves was first formulated in

1968. Aquatic Sanctuaries are to have one or a combination of

three management purposes. They can be designated as biological,

aesthetic, or scientific. The marine sanctuaries concepts and

provisions of Title III of the Marine Protection,, Research, and

Sanctuaries Act of 1972 are in part based upon this system, and

are similar in nature.

These "sanctuaries" are not "preserves", but instead spe-

cial management zones in which specific uses will be given

priority and other uses allowed to the degree that they do not

violate that priority. While further rules and regulations can

be adopted in the future, existing regulations are quite minimal,

in that many activities are allowed. The only activities speci-

fically excluded are oil and gas drilling, and dredging for the

primary purpose of obtaining fill for upland development.

There are now 31 aquatic preserves. They have been estab-

lished not by Bureau policy, but by the legislature, through

275 -

passage of the Florida Aquatic Preserve Act of 1975. These have

been further.incorporated within the State management program by

designating 30 of the sanctuaries as proposed areas of particular

concern (APC's) as described in the Coastal Zone Management Act.

- 276 -

SOURCES

Florida Aquatic Preserve Act of 1975.

Bureau of Coastal Zone Planning. Proposed Geographic Areas of
Particular Concern.- January, 1977.

Florida Coastal Zone Management
Program (Section 305) Status Report to the Governor and
Cabinet. January, 1977.

if 11 to it . Suggested State Object ves,
Policy and Criteria for Coastal Management in Florida.
January, 1977.

Local Government Comprehensive Planning Act of 1975.

Center for Governmental Responsibility. Analysis of Laws
Relating to Florida Coastal Zone Management. October, 1976.

Florida Inter-Agency Advisory Committee on Submerged Land Manage-
ment. A Proposed System of Aquatic Preserves. November, 12,
1968.

Coastal Coordinating Council. An Oceanographic Survey of the
Florida Territorial Sea of-fs--c-a-m-Fla and Santa Rosa Counties.
November, 1973.

Interview with staff of Bureau of Coastal Zone Planning in
Talahassee, April, 1977.

- 277 -

MASSACHUSETTS

Massachusetts has an extensive coastline of 1,2000 miles,-

and has a considerable history of coastal water use. Boston

harbor serves as a major urban port. There is considerable

commercial fishing and fish proce ssing, and extensive recreation,

including activities associated with the Cape Cod National Sea-

shore. The coastal management program staff includes 23 pro-

fessionals, and is in the process of developing a complex program.

The Massachusetts program has developed objectives and'poli-

cies for six major categories of concern:

1) marine environment

2) coastal ha-zards

3) the visual environment

4) ports and harbors

5) recreation

6) energy

Also, the program has identified three levels of critical areas:

1) Significant Resource Areas

2) Areas for Preservation and Restoration (APRIs)

3) Special Assistance Areas

These critical area designations are conceptually related to a

calculation of capability and suitability. Thus areas that are

considered unique for their contribution to marine productivity

might be designated as an APR. Within the APR a set of perfor-

mance standards and prohibited uses would be established, to

protect specified values.

To implement this and other elements of the State CZMP,
Massachusetts has relied heavily upon a networking system of

278

administration. This is especially important for Massachusetts,

where water management legislation has been in force for several

years. As compared with some other coastal states, Massachusetts

already has many 'in-place' systems.

The network of administrative linkages necessary to imple-

ment marine water policies includes CZMP interfaces with at

least the following specific programs:

� Coastal Wetlands Restriction Program

� Wetlands Program

Waterways Program

Ocean Sanctuaries

Division of Marine Fisheries

Division of Marine and Recreational Vehicles

Hazardous Waste Program

Energy Facilities Siting Council

Department of Public Works

Division of Water Pollution Control

Water Resources Commission

Division of Mineral Resources

This list does not include federal agencies or programs which

would also be involved. While Massachusetts is not unique in

this situation it is perhaps a good example of a state in which

previously a number of single or narrow focus programs had been

established. The task is to combine the expertise and sometimes

conflicting interests of these programs into a comprehensive and

cohesive whole.
The Massashusetts network is complex, involving several

2
levels of review The basic coastal zone management program

279 -

will be housed within the State Executive Office of Environmental

Affairs (EOEA), and the basic state coastal zone management legis-

lation is an amendment to the State law affecting EOEA. Maps,

identification of significant coastal areas and of policies for

these areas, and review of State and federal environmental im-

pact statements will provide a flow of information which EOEA

will monitor. Another key aspect of the Massachusetts networking

system'will be to place CZMP staff within the regional offices

of the Department of Environmental Quality Engineering (DEQE).

These CZMP staff will help to integrate new coastal management

policy into existent programs and permit systems and will issue

certificates of consistency as appropriate. Again the emphasis

is upon coordinating and influencing 'on-line' programs rather

than attempting an entirely new major level of planning and

management. Massachusetts is indeed unusual in the number and

type of existent coastal resource management programs that

it has. One of the more interesting of these, in terms of

coastal water management, is its Ocean Sanctuaries program.

Ocean Sanctuaries

Massachusetts has established, under State law, four "ocean

sanctuaries", independent of the more recent coastal management

efforts, and these sanctuaries will now serve as a major compo-

nent in the State's coastal water element of the CZMP.

When taken as a whole, these sanctuaries cover a majority

of the State's territorial waters, leaving in effect only two

principal corridors for commercial activities. It is in reality

a form of water zoning. However, each sanctuary has been

- 280

established separately, with specific objectives and restrictions,

and the method in which they are actually incorporated into

future water use allocations within the State coastal management

program is not yet fully clear.

Perhags the principal advantage of having these declared,

legislated-sanctuaries is that it provides the State with an ex-

tra degree of legitimacy in reviewing the actions of a proposed

coastal water activity, including those sponsored by one or more

federal agencies. As described in Chapter Eleven, there is

presently some concern that if a state has not articulated a

specific set of interests, that state's ability to review and

comment upon a federal project under the consistency provisions

may be limited. These sanctuaries not only establish a set of

permissible and non-permissible uses, but also a special manage-

ment framework within which virtually any activity would be

subject to State review.

An Example: Cape Cod Ocean Sanctuary

To provide a buffer zone within the coastal waters adjacent

to the Cape Cod National Seashore, the State of Massachusetts in

1970 adopted the Cape Cod Ocean Sanctuary Act (Ch. 132A, Sec 13-16).

This buffer area, described by metes and bounds, is established

with a specific management objective and a set of permissible

and non-premissible uses. The purpose is to insure that:

The Cape Cod Ocean Sanctuary... shall be protected
from any exploitation, development or activity that
would seriously alter or otherwise endanger the eco-
logy or the appearance of the ocean, the seabed, or
subsoil thereof, or the adjacent Cape Cod National
Seashore."

- 281

The sanctuary serves as a "buffer" to the Seashore through

its control of coastal water uses. Since the principal-purposes

of the Seashore is to preserve the natural shore system and

accommodate public recreation, the adjacent coastal waters are

reserved, under the sanctuaries act, to compatible activities.

With State approval, permissible uses include:

laying of cables
channel and shore protection projects
navigational aids or improvements with federal
and state approval
harvesting of fish and shellfish
temporary educational and scientific study facilities
seabed aquaculture structures

Prohibited activities include:

� building of any structure on the seabed or under subsoil
� removal of sand, gravel, other minerals, gases, or oils,
with the exception of sand and gravel extracted for the
purpose of shore protection and beach restoration, pro-
vided that such projects are limited to the adjacent
public beaches.
� dredge and spoil activities
� dumping of commercial or industrial waste
� commercial advertising.

In 1971 a sanctuary was established for Cape Cod Bay, and

also a Cape and Islands Ocean Sanctuary, including the waters

and submerged lands of Nantucket Sound and Buzzard Bay. The

Cape and Islands Sanctuary, reflecting the political process

by which these management zones were established, includes an

allowance of industrial thermal discharge under State permit

control, but otherwise is similar to the first two sanctuaries.

In 1972 a fourth sanctuary was established for the coastal

waters from Cape Ann north to the New Hampshire border, completing

the current system and bringing the majority of State waters under

special management consideration. Combined with the Significant

282 -

Resource Areas (SRA's) and Areas for Preservation or Restoration

(APR's), this provides a significant degree of specific,state-

level management objectives for the coastal waters of Massachu-

setts. The ocean sanctuaries preceded the national Coastal Zone

Management Act and provided a coastal water management framework

which is now being incorporated into a stronger than usual water

element in the CZMP.

- 283

FOOTNOTES

1. Based upon interview with Massachusetts coastal program
coordinator Mark Kriskavitch on May 5, 1977.

2. See Massachusetts Coastal Zone Management Preview,
Chapter 3, for details.

3. Based on Guidelines for Management of Florida's Aquatic
Preserves, Chapter Two.

SOURCES

Executive Office of Environmental Affairs. Massachusetts
Coastal Zone Management Preview. November, 1976.
State of Massachusetts.

of Boston Harbor.
April, 1977.

Myers, Jennie C. and Glassen, Robert C.., Guidelines for
Management of Florida's Acquatic Preserves. Florida
State University. March, 1977

284 -

NEW HAMPSHIRE

New Hampshire is one of the smaller coastal states, and has

a coastal zone management program staff of only four people.

This helps explain a program emphasis upon networking among

existent State agencies and programs, and upon the use of exis-

tent information. Of particular interest in the suitability/

capability analysis that has been done for New Hampshire's

coastal waters and the State's method of identifying permissible

coastal water uses.

Background

New Hampshire enjoys the somewhat unusual position of having

total control over its submerged lands. While most if not all

states exercise control over water use, there are few states that

have not through permit, license, or lease given a partial use

right to private interests. Yet in New Hampshire leases for

commercial shellfishing, aquaculture, or offshore mining have

never been granted. This may considerably ease the problem of

dealing with prior claims when future allocative decisions are

made. Lobster fishing licenses are the only exception to this

pattern.

Natural Limitations

As with many parts of the eastern coast, New Hampshire

waters are relatively shallow. This represents a natural im-

pediment'to some of the projected future uses of coastal waters.

,Only shallow draft vessels can be accommodated without major

dredging or the construction of a deepwater port (an idea that

APPENDIX 6 (cont)

Habitat Impact at Dredge site Impact at Disposal Site

Coral Reefs Decreased light penetration due The effects of disposal can
to increased turbidity and TSS have the same qualitative a
will reduce photosynthesis impacts as those discussed
carried out by symbiotic for dredging. Dredge
zoexanthellae, eventually killing spoils can clog feeding
corals. Dredge spoils call clog and breathing mechanisms
feeding and breathing mechanisms of the corals, and
of the corals, and calcification calcification rates may
rates may also be depressed by also be depressed by
interference with these process- interference with these
es. Nutrients released from the processes. Nutrients
dredging operation can stimulate released from the dredging
microalgal growth which can also operation can also kill
kill corals. Consequently, food, corals. Consequently ,
shelter, arid habitat function of food, shelter, and habitat
these reef systems will be function of these reef
reduced or even eliminated. systems will be reduced on
even eliminated. Side
casting is extremely
deleterious to coral reef
communities due to blank-
eting and smothering of
biota.

Barrier Islands Channel maintenance dredging Improper spoiling on
through or around harrier barrier island beaches
islands can alter hydro- (i.e. , renourishment)
dynamic regimes and reduce Can eliminate prouctive
shoreline stability. bottom areas, outcrop
habitats, and shoreline
vegetation which export
nutrient-rich detrital
material to adjacent
estuary areas.

Worm Reefs Suspended arid settable Direct disposal on reefs
materials clog feeding and eliminates food, shelter,
respiratory mechanisms. arid habitat for biota by
Nutrients released to these smothering actions. Side
fragile Communities can casting produces increased
stimulate growth of encrusting suspended and setteable
algal species which cover worm solids that clog feeding
reels and destroy colonies. and breathing mechanisms.
Nuutrients stimulate
undesireable macroalgal
growth over reef habitat.

A- 16

286

years of effort and hundreds of thousands of
dollars. (Emphasis added) 1 @3

The initial inventory survey included the following factors:

1) coastal ecosystems
2) marine and estuarine specise
3) bottom sediments-offshore
4) existing marine uses
5) potential marine uses

Several maps were then prepared, to develop an overlay system

similar to that often used in land-use planning. The maps

included:

1) spawning areas-major marine species
2) offshore fishery areas-of importance to New Hampshire
3) clarming and oystering areas (three maps) 4
4) offshore fisheries-Portsmouth and Gloucester landings
5) existing areas-offshore
6) offshore sand and gravel deposits

The inventory and analysis process led to a determination that

the following uses are likely to significantly increase in New

Hampshire coastal waters:

1) commercial fishing/lobstering
2) recreational fishing/boating/swimming/visual enjoyment
3) ocean shipping/anchorage
4) national defense
5) research and education
6) cable routes

Possible., increased water uses include:

1) deepwater ports
2) offshore sand and gravel mining
3) aquaculture
4) ocean dumping

Having developed this initial inventory on a map overlay

system, several concepts of capability/suitability analysis were

considered. Eventually a seven-parameter system was chosen, with

emphasis upon existent uses and natural systems as a measure

against future suitability. The seven parameters include:

APPENDIX 7a

Operational Evaluation of Grab Samplers*

Grab____ Trigger System Reliability

Franklin Anderson Good, but perhaps too sensitive on hard sand and
gravel bottom.

Dietz-LaFond Poor, unless area of trigger foot is increased to
2
at least 50 cm, . Triggering may often be
impossible in very soft mud unless the foot has
been modified.

Birge-Ekman Good. Triggered by messenger weight dropped
from surface, normally consistent but can be
affected on soft bottoms if sampler is allowed
to settle for too long before dropping the
messenger.

Petersen Fair to good, though tends to be a little over-
sensitive on hard sand and gravel bottoms.

Ponar Good, though like the Petersen, tends to be a
little oversensitive on gravel bottoms.

Shipek Good, though some slight settlement may occur
before triggering on very soft materials.
Sampler may fail to trigger when lowered
gently on soft bottoms. By lifting and dropping
the trigger weight a few centimeters after
bottom contact, abortive casts may be avoided.
The slight movement of the inertial trigger
weight has no other effect on the sampler.

Jaw Shape, Design, and Cut

Franklin-Anderson Poor. During the first stage of closure and when
under the greatest pressure of springs and weight,
the jaw shape loosely follows the are of cut.
However, the degree of' fit becomes progressively
worse as, the closing pressure is reduced. Because
each jaw is semicylindrical in shape, simple,
displacement is necessary within it if anything
near maximum capacity is to be achieved.

Ditz-LaFond Poor. As for Franklin-Anderson.

Birge-Ekman Excellent. Jaw shape exactly follows are of cut
and almost no sample displacement occurs.
Peterson Poor. Comments as for Franklin-Anderson, except
that, instead of the reduction in closure pressure
(Continued)

*After USEPA/COE (1981) (Sheet 1 of 4)

A-17

APPENDIX 7b

Grab Jaw Shape, Design, and Cut

Petersen (Continued) being produced by slackening of tensional
springs, the same result is effected by
reduced leverage on the scissor arms mounted
across the hinge line.

Ponar Excellent. Jaw shape exactly follows arc of
cut and almost no sample displacement occurs.
Shipek Excellent. As for Ponar. In addition, the
rotation of the bucket is extremely rapid.
In most cases the rotational shear is ray-
greater than the sediment shear strength,
thus the cutting action is very clean
(producing minimal disturbance), particularly
in soft clays, muds, silts, and sands.

Preservation and Protection from Washout

Franklin-Anderson Fair, but the tightness of closure is largely
dependent upon the lack of grains trapped
between the edges of the jaws. Providing a
tight fit between the two jaws is obtained,
the sample is well shielded against washout.
If the jaws are kept open by material
trapped between the jaws, washout can be
severe or total.

Dietz-LaFond Fair. Comments as for Franklin-Anderson.

Birge-Ekman Good, except when the sampler is used in very
coarse or shelly sediment. Under these
conditions, material may be trapped between
the jaws, preventing their closure. In this
case, washout may be severe. The jaws are
so designed that they slightly overlap one
another, thus a slight imperfection of
closure can be tolerated.

Petersen Good. Comments as for Birge-Ekman.

Ponar Good. Comments as for Birge-Ekman. In
addition to the overlap jaws, this sampler
has a pair of metal side plates, mounted
close to the moving side faces of the jaws.
These plates further reduce the possibility
of washout.

Shipek Excellent. The great advantage of the Shipek,
over all or the other samplers described, is

(Continued) (Sheet 2 of 4)

A-18

APPENDIX 7c

Grab Preservation and Protection from Washout

Shipek (Continued) that the bucket closes with its separation
plane aligned in the horizontal rather than in
the vertical. Good samples can be retrieved
even when bucket closure is prevented by
pebbles or similar material, even 2 to 5 cm
across. With the bucket properly rotated,
washout. is completely avoided.

Stability

Franklin-Anderson Fair. Despite the weight of this grab, it tends
to "strewn" at an inclined angle under conditions
of rapid ship drift or fast water flow.
Provided lowering conditions are calm and
stable, the sampler will hold upright during
the initial sampling process; if, however, the
line is allowed to slack, the sampler will fall
over.
Dietz-LaFond Poor. This sampler is very sensitive to "strea-
ming" and will rarely operate in the vertical
position unless used in ideal conditions.
Its tendency to maintain an inclined attitude
during descent sometimes results in a failure
to trigger.
Birge-Ekman Fair. Despite the light weight of this sampler
and it's tendency to "stream" its wide base
gives good stability and stance once it has
come to rest on the sediment fLoor. Under poor
sampling conditions, however, it becomes
impossible to operate because: (a) the
sampler, due to its light weight, is continually
being lifted and dropped and "streamed" along
the bottom, and (b) any slack in the line,
particularly near the sampler, is likely to
impede the proper function of the triggers'
messenger weight. It tends to roll over after
triggering on all 'but soft bottoms.
Petersen Good. This is a heavy sampler with a wide base
line (when the jaws are open). It maintains a
near vertical descent under all conditions,
but after sampling it tends to fall over
(unless on a soft bottom).

(Sheet 3 or 4)
(Continued)

A-19

APPENDIX 7d

Grab Stability

Ponar Very good. Comments as for Petersen; because
of its weight and wide base-Line (when jaws
are open), this grab has a good vertical
descent under most conditions and has a
stable stance on the bottom. The presence of
the fixed side plates prevents the grab from
falling over after jaw closure and helps in
preserving a near perfect bottom sample.

Shipek Excellent. Despite the large size of this
sampler, its weight ensures a near perfect
vertical descent even under conditions of
rapid drift or fast water flow. The sampler
is also very stable even on bottom slopes 20
degrees or more. This stability ensures the
minimum possible disturbance of the sample
material.

(Sheet 4 of 4)

A-20

APPENDIX 8

Operational Suitability of Corers and Grab Samplers*

Sampler Characteristics

Benthos Gravity Cores of 3 m or, less in soft, clays, muds, or
Corer sandy silts. Particularly suitable for studies
of the sediment/water interface, for studies on
depositonal sediment structures.
Alpine Gravity Cores Of 2 m or less in almost, all sediment types.
Corer The rugged nature of this corer lends itself to
general usaage. For studies involving sediment
structure or large volumes of material, the
corer is unsuitable; for studies of a pilot
nature, or to prove the suitability of an area
for piston coring, this gravity corer is excellent.
Phleger Corer Cores of 0.5 m or less, in almost all sediment
types. Particularly suited to bottom materials
containing a high percentage of fiberous organic
material. The low cutter angle, the narrrow wall
thickness and high point loading, and the
extremely sharp cutter, make it very suitable
for sampling shallow lacustrine and estuarine
deposits, marsh deposits, and thin peat beds.

Multiple Corers Still under investigation.

Franklin-Anderson Suitable for obtaining material for bulk sample
Grab analysis. Works best in soft clays, muds, silts,
and sands. Will occasionally obtain a good
gravel sample. Material of no use for structural
or other specific analyses.

Dietz-LaFond Grab Can be used for general sampling but not
recommended for any particular use. Of all the
samplers tested, this pattern proved to be the
least suitable.

Birge-Ekman Dredge Suitable for soft clays, muds, silts, and silty
sands. This sampler should be used under calm
water conditions, typically in small lakes or
restricted areas. The lack of sample disturbance,
square cross section, and moderate penetration
make this sampler suitable for detailed studies
(i.e. biological and geochemical)of the top
2 to 3 cm of bottom sediment. Because of its
light weight and easy handling, it is well
suited to small boat operations.

(Continued)

After USFPA/COE (1981)
A-21

APPENDIX 8 (continued)

Sampler Characteristics

Petersen Grab This sampler, like the Franklin-Anderson, is suitable
for taking bulk sample material in most types of'
sediment. It is quite unsuited for studies of
detailed and specific sediment properties, though
it is perhaps a little more successful in taking
gravel samples. Either of these two samplers
(Petersen or Franklin-Andersen) will do well as a
general purpose bulk sampler.
Ponar Grab An excellent general purpose bottom sampler. 'In
practice it operates better than either the Petersen
or Franklin-Anderson over the full range of bottom
types. It can also obtain bottom samples with little
or no disturbance and with the protecting screens
removed or folded back, direct access can be had to
the sediment surface of the sample. Such access to
an undisturbed sample makes it suitable for geochem-
ical, sedimentological, biological, and structural
studies. Because of the large sample volume and
its relatively undisturbed state, this sampler is
very suitable for population studies of the bottom
sediment fauna.

Shipek Bucket An excellent general purpose sampler, though perhaps
Sampler a lit tle heavy for small boat operation. This
sampler is capable of working with almost equal
success on all types of bottom material. It
provides a sample even less disturbed than the
Ponar, making it the most suitable sampler (under
test) for detailed geological studies of the
sediment surface. The sampler volume is signif-
icantly less than that of the Ponar, and the
quantity of material sampled at maximum cutting
depth is also less than the Ponar. These two
points may, therefore, favor the Ponar for certain
biological (population) studies. On the other
hand, the rapid rotation of the Shipek bucket, as
opposed to the much slower closure of the Ponar's
jaws, may make it, more suitable for sampling
sediment containing a significant population
nonsessile forms.

A -22

293

WASHINGTON

The State of Washington contains a very complex coastal water

system which includes not only the Pacific Ocean, but also the

waters of Puget Sound. In terms of sheer size, this represents

a major task for p@anning and man aqement. There are also major
fishing, recreational, and commercial shipping activities, as

well as a significant concentration of naval activities and

facilities. Thus Washington, with the first approved Sec. 306

coastal zone management program, is faced with major issues of

multiple use and multiple jurisdiction.

Considering this somewhat imposing management task, it is all

the more surprising to note the degree to which coastal water uses

are to be planned and managed by local rather than State govern-

ment. As with a few other states, such as Oregon-and Florida,

Washington had dn active program.of comprehensive coastal plan-

ning in place before federal CZM funds became aVailable.

Shorelands Management Act of 1971

Under this Act, a Department of Ecology (DOE), which now

administers the State CZMP, was to develop guidelines for land

and water uses within the State's coastal zone. Based upon those

guidelines, local units of government (counties and cities) were

to establish comprehensive management plans. These are contin-

uing to be developed and implemented under the now expanded

state coastal management program. Under the Act, which has be-

come the principal element in the State CZMP, any substantial

development must receive a local permit to occur. "Substantial"

is defined, with some exemptions, as involving a market value

- 294 -

of more than $1,000 or as any action that would "materially"

interfere with normal public use of the water or shorelines

of the State.

The Department of Ecology does not have approval or denial

authority over local permit decisions, but it does have a speci-

fied period of time in which to appeal the decision to an inde-

pendent hearings board created by the State Shorelands Management

Act, called the Shorelines Hearings Board. DOE and other state

agencies have used this process, and it can be used either to

challenge a permit approval or to challenge a permit denial.

Local units of government can also use the Board as a means of

challenging State regulations or guidelines.

Because local government plays so strong a role in water use

allocation decisions in Washington, it is essential that they be

given sufficient tools and technical assistance to carry out

this task. Towards that objective, DOE has devoted a consider-

able amount of its first year 306 funding to the development of

a county planning guidebook. This is directed primarily to the

waters of Puget Sound.

Planning manual

The Manual is intended to answer three basic questions.

1. Who has ownership and/or jurisdiction over
a particular site? What regulatory programs
affect the.area? What are the legal issues
and policies affecting the decision?

2. What is the natural system or habitat which
exists at and around the site? How should
the site be managed?

3. Should the proposed use be allowed to locate
on the site? If so, under what conditions?

- 295

A Legal Analysis section will attempt to clarify the extent of

local authority over a given use and/or site and identify poten-

tial conflicts of authority. A Habitat section describes Puget

Sound systems, including flora and fauna, associated physical

and geological conditions, and an approximate indication of

tolerance levels. A simplified key, based on substrate type,

is included for easy identification by local planners. A Uses

and Performance Standards section develops an impact matrix

suggestive of the work of Sorenson, the impact approach contained

in Volume 5 of the National Estuary Study, and to a limited

extent, the space-time approach discussed in Chapter Eleven.

If successful, this manual should not only serve as an im-

pact planning guide, but also as a directory of the goals, objec-

tives, rules, and procedures of the State coastal program. The

emphasis of this work is upon Puget Sound waters, and Pacific

Ocean coastal waters are for the most part "left out" of this

planning and management effort. Given the priorities of the

State and the patterns of coastal water use development, it may

be a reasonable emphasis at this time, but the methodology of

the manual might require considerable modification for deepwater

allocative decisions.

State Department of Natural Resources

Some of the bottom lands of the State are in private owner-

ship. When the State Constitution was formed in 1889, the State

asserted ownership of the beds and shores of all navigable waters

in the State, up to and including the line of ordinary high tide.

But prior to August 8, 1971, the State was authorized to sell

tidelands and shorelands to private individuals, companies, and

- 296

corporations, which it did. Chapter 217, established in 1971

and amended in 1974, prohibited any further sales, except to

public agencies. However, as in most states, leasing is still

permitted.

The State Department of Natural Resources owns approximately

11 square miles of harbor area, 140 square miles of shorelands,

205 square miles of tidelands, 1,250 square miles of beds of

navigable lakes and rivers, and 1,800 square miles of beds of

navigable tidal waters. The Washington Parks and Recreation

Commission also has some holdings, but DNR is the major admini-

strator of marine lands. In the early 1970's DNR embarked upon

a program of planning for these marine lands'. The marine lands

were divided into seven management areas, and then a three-

phase planning and management program was implemented. At this

point soveral principles and concepts have been adopted.

One of the principles of use allocation is to avoid the

permanent use of a site by a single activity when that site can

support multiple use. In fact multiple use is the principal

allocative concept which DNR is required, by law, to use.

DNR Policy

At this time DNR has six basic allocation policies which

it applies to its marine lands. They deal with navigation and

commerce; public use; food, mineral, and chemical production;

protection of the natural marine environment; use by abutting

upland owners; and revenue production. While these are too ex-

tensive to list here, there are some interesting policies that

might be of use in other coastal water use programs.

- 297

Navigation: . Shallow draft uses, such as barge terminals and
marinas, will be preferred over deep draft uses
in areas requiring extensive maintenance dredging.

. Provisions will be made to minimize interference
with surface navigation even though other uses
have been allocated.

Public Use: . Whenever practical, leases of first class tide-
lands will provide for public access to the water.

. In recognition of the increasing impact of the
recreating public on the State's beaches, new
programs will be devoted to public education
about stewardship of State marine resources.

Food, Mineral, and Chemical Production:

Tidelands and beds of navigable waters, especially
valuable for aquaculture, will be so designated
and protected from conflicting uses which would
limit their utility for this purpose.

Provisions will be made to insure that traditional
commercial fishing areas are protected from com-
peting uses that create obstructions.

� Whenever structures are used for aquacuilture on
the beds of navigable waters, they shall be located
in such a way as to minimize the interference with
navigation and fishing and minimize adverse
visual impacts.

Protection of the Natural Marine Environment:

� Easements or leases for the development of underwatez
pipelines and cables will not be granted except
where adverse environmental impacts can be shown
to be less than the impact of upland alternative(s),
and when granted will include proper provisions to
insure against substantiallor irrevocable damage
to the environment.

� Structures and uses on marine lands will be designed
to provide for safe passage of migrating animals
whose li,fe cycle is dependent on such migration.

Uses by Abutting Upland Owners:

When tidelands are leased to someone other than the
abutting upland owner, such leases will provide for
the abutting owner to reach the beds of navigable
waters.

298

To reduce the burden on marinas, private mooring
buoys and floats associated with shoreline resi-
dences will be encouraged.

Revenue Production:

� When the effects of marine uses have an identifi-
able adverse impact on Department of Natural
Resources land, a value will be placed on the
loss or impact and charged to the user.

� Available revenue from leasing of marine lands
shall be used for marine land management programs
that are of direct benefit to the public.

There are many more provisions under each policy heading, but this

sample indicates the type and specificity of policy that has been

established. It is worth noting that under uses by abutting upland

owners, private mooring buoys and floats are encouraged. In some

states there has been an increasing effort to consolidate such

facilities so as to minimize surface obstructions.

In the future there will be a need for very close coordina-

tion between DNR leasing policy and DOE administration of the

State coastal zone management program, which relies so heavily

upon local decisions. The administrative network is asked to

accomplish much, to insure that local decisions and DNR decisions

mesh into a consistent state water use planning and management

effort.

- 299 -

SOURCES

1. interviews with Don Peterson, Washington DOE, on May 12,
1971; with Mark Boule of Corff and Shapiro on May 12, 1977.
and with Rick Vining, Washington DNR, on May 11, 1977.

2. Office of Coastal Zone Management. State of Washington
Coastal Zone Management Program7fln-al Environmi@ntal
Impact Statement. April 9, 1976. Washington D.C.

2. Corff and Shapiro, Inc., Coastal Aquatic Area Management
Study Monthly Report for April, 1977. Seattle,
Washington.

4. State of Washington Department of Natural Resources.
A Circular of General Information Relating to State
Owned Aquatic Lands. 1974. Olympia, Washington.

5. of it to to of
The Land Use Allocation Plan, Department of Natural
Resources Managed Marine Lands. February, 14, 1973.

6. Farley, P. J. Maps of aquatic habitats for areas of
Puget Sound. Date Unknown. Shoreline Community
College. attle, Washington.

300

OREGON

In several states the basic concepts of a comprehensive

coastal zone management program had already been developed by

the time that Sec. 305 program development grants became avail-

able through the federal Coastal Zone Management Act. Oregon,

and to a similar extent, Washington, exemplify coastal states

where advanced comprehensive land and water use planning was

well underway by the mid-1970's. These existent programs pro-

vide a strong basis for coastal management, and also to a great

extent determine what form the State CZMP will take. In Oregon,

the coastal management program is based upon the Oregon Land

Use Act (ORS 197). This legislation, often referred to as

Senate Bill 100, places considerable emphasis upon the role

of local government.

Similar to the planning history of Florida, Oregon estab-

lished an Oregon Coastal Conservation and Development Commission

(OCCDC) from 1971 to 1975. This Commission developed an initial

inventory of coastal resources, hazards and needs; developed

coastal land and water resource policies; and developed methods

of implementing a comprehensive coastal management program.

2
Land Use Act

The Land Use Act (SB.100) requires that a Land Conservation

and Develo2ment Commission (LCDC) develop and adopt Goals and

Guidelines which would become the State policy for management

of land, air and water resources. Also, the Act requires that

each city and county develop comprehensive plans which are in

conformance with the Goals. State agencies and special districts

301

must, through their plans and actions, also conform both to the

Goals and to local comprehensive plans. Thus the key to Oregon's

coastal zone management program is the Goals developed by the

State. On December 18, 1976, LCDC adopted four new goals, for

a total of nineteen. Two of these new goals are of particular

interest with reference to coastal water use management.

Goal 16: Estuarine Resources

By June 15, 1977, LCDC is to complete a classification of

Oregon estuaries and specify the most intensive level of

development or alteration which can occur within each estuary.

As part of its comprehensive planning, each city and county will

develop estuary management plans that will reflect the Oregon

Estuary Classification and the provisions of the Goal, which

includes the requirement that:

Estuary plans and activities shall protect the
estuarine ecosystem, including its natural bio-
logical productivity, habitat, diversity, unique
features and water quality. Dredge, fill or
other reduction'or degradation of these natural
values by man shall be allowed only:

1. if required for navigation or other water-depen-
dent uses that-require an estuarine location; and

2. if a public need is demonstrated; and

3. if no alternative upland locations exist; and

4. if adverse impacts are minimized as much as feasible.

All estuaries are to be classified as Natural, Conservation,

or Development. All estuaries must have natural areas, and

unless designated in the Oregon Estuary Classification for pre-

servation, all estuaries must also have conservation areas.

Each estuary will have its own priorities, but the Goal

- 302 -

identifies as general priorities, from highest to lowest:

1) Uses which maintain the integrity of the estuarine
ecosystem.

2) Water-dependent uses requiring estuarine location,
as consistent with the overall Oregon Estuarine
Classification.

3) Water-related uses which do not degrade or reduce
the natural estuarine resources and values; and

4) Non-dependent, non-related uses which do not alter,
reduce, or degrade the estuarine resources and
values.

In effect, this estuarine goal establishes a system of estu-

arine use plans, which may include surface water zones that spe-

cify types of use. This is treated as a natural extension of

the local governmental land planning, out into the waters of the

State. Since the same unit of government, under State supervision

and review, establishes plans for both the coastal lands and

adjacent coastal waters, the two elements can be readily coordin-

ated. Consequently, land uses adjacent to designated natural

estuarine areas will not involve industrial activities, and pre-

sumably coastal lands adjacent to designated development

estuarine areas would not,be reserved for wilderness or low-inten-

sity recreation. As a further part of the estuarine Goal, an

impact assessment is required, either at the time of plan formu-

lation, or, for activities not considered in the estuarine plan,

prior to activity approval.

The local estuarine plans will not be conceptually isolated

from the rest of the coastal management program, and will reflect

the other 18 Goals. For example, it presently appears that

Oregon will attempt to concentrate major new commercial port

development to one of three existent large ports. The other,

303

smaller ports, would be classified as such, and the local plans

would be monitored to insure that for these ports major new

development was not contemplated.

Goal 19: Ocean Resources 3@

Within the Oregon program, as with virtually all other State

CZMP's at this time, much less emphasis is placed upon deep water

planning and management than upon estuarine and near-shore areas.

In oregon, aside from some important commercial fishing activi-

ties, there is relatively little offshore activity, and thus

pragmatic considerations of program priority have placed most

attention upon the more crowded and pressing near-shore problems.

The Ocean Resources Goal is much less detailed than the other

18 Goals, and is it possible that until more problems emerge,

that it may remain a somewhat low-priority aspect of the program.

Priorities of Use

Goal 19 specifies that:

Since renewable ocean resources and uses, such as
food production, water quality, navigation, recrea-
tion, and aesthetic enjoyment, will provide greater
long-term benefits than will non-renewable resources,
such plans and activities shall give clear priority
to the proper management and protection of renewable
resources. (emphasis added)

The State policy of favoring renewable resources, such as fin-

fish, over nonrenewable resources, such as oil or gas, has not

escaped the notice of federal agencies, and there has been some

expression of concern that such a policy might hamper OCS deve-
lopments.4

At this point in time, the State is not formulating specific

304 -

management plan for its Ocean Resources. It is instead a reac-

tive, permit process. Given the State's emphasis upon local plan-.

ning, it is difficult to see how local governments could develop

an adequate plan, in an area where they are not traditionally

involved. At this time there is a strong feeling that a compre-

hensive plan, similar to that being established for Oregon's

estuaries, is in fact not necessary.

Permit Requirements

Although Oregon has determined that a comprehensive plan is

not required for its territorial waters, beyond those being pre-

pared for estuarine systems, it still has one of the most compre-

hensive permit systems. The Ocean Resources Guidelines suggest

that permits for development on the Oregon Continental shelf should:

1. Designate areas within the proposed development
where activities such as exploration and extrac-
tion will be prohibited;

2. Specify methods and equipment to be used and
standards to be met;

3. Require the developer to finance monitoring and
inspection of the development by the appropriate
state agency;

4. Require the developer to be liable for individual
or public damage caused by the development and to
post adequate bonding or other evidence of finan-
cial responsibility to cover damages;

6. Specify the extent of restoration that must be
accomplished where appropriate, when the develop-
ment is finished;

7. Specify that the state or federal government may
revoke or modify a permit to prevent or halt damage
to the environment and that such revocation or modi-
fication will recognize vested rights of the developer.

8. Require the developer to describe the extent and
magnitude of onshore support and operation facilities

305

and their social, economic and environmental impacts
on the Oregon coast; and

9. Be available for public review and comment before
issuance.

There are certain potential problems with this set of permit

tequirements. Obviously they are oriented towards OCS oil and

gas development, and seem adequate for such activities. How-

ever, the Guidelines apply to any activity occurring on, in, or

beneath the continental shelf within State waters, not just oil

and gas extraction. It is not clear that all of the provisions

developed by Oregon are appropriate for every coastal water

activity. For example, is it necessary or appropriate for com-

mercial fishermen to pay for monitoring and inspection? Perhaps

it is, but the economic yield of various activities differs

widely, and such a requirement might preclude an activity in

some instances, especially in those where no or little economic

yield is involved. Some degree of resolution might be achieved

through a careful program definition of "development" or by

formulating sets of permit requirements for various types of

offshore activities.

- 306 -

FOOTNOTES

1. Based upon interview with Ted LaRoe, Salem, Oregon, on
May 13, 1977, and upon Oregon CZMP materials cited below.

2. Oregon Land Conservation and Development Commission.
Oregon Coastal Management Program. 1976.

3. Land Conservation and Development Commission. Statewide
Planning Goals and Guidelines 16, 17, 18, & 19
for Coastal Resources Effective 1 January 1977.
December, 1976.

4. See citation No. 1.

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