16 U.S.C. § 1455b — Protecting coastal waters

Page 1884 TITLE 16—CONSERVATION § 1455b Pub. L. 102–587, title II, § 2205(b)(9)–(12), Nov. 4, 1992, 106 Stat. 5051; Pub. L. 104–150, § 7(1), June 3, 1996, 110 Stat. 1381.) Editorial Notes AMENDMENTS 1996—Subsec. (b)(4). Pub. L. 104–150 added par. (4). 1992—Subsec. (a)(1)(B). Pub. L. 102–587, § 2205(b)(10), substituted ‘‘through (K)’’ for ‘‘through (I)’’. Subsec. (b)(1). Pub. L. 102–587, § 2205(b)(9), made tech- nical amendment to directory language of Pub. L. 101–508, § 6216(a). See 1990 Amendment note below. Subsec. (b)(2). Pub. L. 102–587, § 2205(b)(11)(A), sub- stituted ‘‘that are designated in the state’s manage- ment program pursuant to section 1455(d)(2)(C) of this title as areas of particular concern’’ for ‘‘that are des- ignated under section 1454(b)(3) of this title in the state’s management program as areas of particular concern’’. Subsec. (b)(3). Pub. L. 102–587, § 2205(b)(11)(B), sub- stituted ‘‘access to’’ for ‘‘access of’’ and ‘‘1455(d)(2)(G)’’ for ‘‘1454(b)(7)’’. Subsec. (c)(2)(C). Pub. L. 102–587, § 2205(b)(12), in clos- ing provisions, substituted ‘‘shall not be’’ for ‘‘shall not by’’. 1990—Subsec. (b)(1). Pub. L. 101–508, § 6216(a), as amended by Pub. L. 102–587, § 2205(b)(9), substituted ‘‘1455(d)(9)’’ for ‘‘1455(c)(9)’’. Pub. L. 101–508, § 6207, inserted before period at end ‘‘, or for the purpose of restoring and enhancing shell- fish production by the purchase and distribution of clutch material on publicly owned reef tracts’’. 1986—Subsec. (d)(1). Pub. L. 99–272 amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘No grant made under this section may exceed an amount equal to 80 per centum of the cost of carrying out the purpose or project for which it was awarded.’’ § 1455b. Protecting coastal waters (a) In general (1) Program development Not later than 30 months after the date of the publication of final guidance under sub- section (g), each State for which a manage- ment program has been approved pursuant to section 306 of the Coastal Zone Management Act of 1972 [16 U.S.C. 1455] shall prepare and submit to the Secretary and the Adminis- trator a Coastal Nonpoint Pollution Control Program for approval pursuant to this section. The purpose of the program shall be to develop and implement management measures for nonpoint source pollution to restore and pro- tect coastal waters, working in close conjunc- tion with other State and local authorities. (2) Program coordination A State program under this section shall be coordinated closely with State and local water quality plans and programs developed pursu- ant to sections 1288, 1313, 1329, and 1330 of title 33 and with State plans developed pursuant to the Coastal Zone Management Act of 1972, as amended by this Act [16 U.S.C. 1451 et seq.]. The program shall serve as an update and ex- pansion of the State nonpoint source manage- ment program developed under section 1329 of title 33, as the program under that section re- lates to land and water uses affecting coastal waters. (b) Program contents Each State program under this section shall provide for the implementation, at a minimum, of management measures in conformity with the guidance published under subsection (g), to pro- tect coastal waters generally, and shall also contain the following: (1) Identifying land uses The identification of, and a continuing proc- ess for identifying, land uses which, individ- ually or cumulatively, may cause or con- tribute significantly to a degradation of— (A) those coastal waters where there is a failure to attain or maintain applicable water quality standards or protect des- ignated uses, as determined by the State pursuant to its water quality planning proc- esses; or (B) those coastal waters that are threat- ened by reasonably foreseeable increases in pollution loadings from new or expanding sources. (2) Identifying critical coastal areas The identification of, and a continuing proc- ess for identifying, critical coastal areas adja- cent to coastal waters referred to in paragraph (1)(A) and (B), within which any new land uses or substantial expansion of existing land uses shall be subject to management measures in addition to those provided for in subsection (g). (3) Management measures The implementation and continuing revision from time to time of additional management measures applicable to the land uses and areas identified pursuant to paragraphs (1) and (2) that are necessary to achieve and maintain applicable water quality standards under sec- tion 1313 of title 33 and protect designated uses. (4) Technical assistance The provision of technical and other assist- ance to local governments and the public for implementing the measures referred to in paragraph (3), which may include assistance in developing ordinances and regulations, tech- nical guidance, and modeling to predict and assess the effectiveness of such measures, training, financial incentives, demonstration projects, and other innovations to protect coastal water quality and designated uses. (5) Public participation Opportunities for public participation in all aspects of the program, including the use of public notices and opportunities for comment, nomination procedures, public hearings, tech- nical and financial assistance, public edu- cation, and other means. (6) Administrative coordination The establishment of mechanisms to im- prove coordination among State agencies and between State and local officials responsible for land use programs and permitting, water quality permitting and enforcement, habitat protection, and public health and safety, through the use of joint project review, memo- randa of agreement, or other mechanisms. (7) State coastal zone boundary modification A proposal to modify the boundaries of the State coastal zone as the coastal management Page 1885 TITLE 16—CONSERVATION § 1455b agency of the State determines is necessary to implement the recommendations made pursu- ant to subsection (e). If the coastal manage- ment agency does not have the authority to modify such boundaries, the program shall in- clude recommendations for such modifications to the appropriate State authority. (c) Program submission, approval, and imple- mentation (1) Review and approval Within 6 months after the date of submission by a State of a program pursuant to this sec- tion, the Secretary and the Administrator shall jointly review the program. The program shall be approved if— (A) the Secretary determines that the por- tions of the program under the authority of the Secretary meet the requirements of this section and the Administrator concurs with that determination; and (B) the Administrator determines that the portions of the program under the authority of the Administrator meet the requirements of this section and the Secretary concurs with that determination. (2) Implementation of approved program If the program of a State is approved in ac- cordance with paragraph (1), the State shall implement the program, including the man- agement measures included in the program pursuant to subsection (b), through— (A) changes to the State plan for control of nonpoint source pollution approved under section 1329 of title 33; and (B) changes to the State coastal zone man- agement program developed under section 306 of the Coastal Zone Management Act of 1972, as amended by this Act [16 U.S.C. 1455]. (3) Withholding coastal management assistance If the Secretary finds that a coastal State has failed to submit an approvable program as required by this section, the Secretary shall withhold for each fiscal year until such a pro- gram is submitted a portion of grants other- wise available to the State for the fiscal year under section 306 of the Coastal Zone Manage- ment Act of 1972 [16 U.S.C. 1455], as follows: (A) 10 percent for fiscal year 1996. (B) 15 percent for fiscal year 1997. (C) 20 percent for fiscal year 1998. (D) 30 percent for fiscal year 1999 and each fiscal year thereafter. The Secretary shall make amounts withheld under this paragraph available to coastal States having programs approved under this section. (4) Withholding water pollution control assist- ance If the Administrator finds that a coastal State has failed to submit an approvable pro- gram as required by this section, the Adminis- trator shall withhold from grants available to the State under section 1329 of title 33, for each fiscal year until such a program is sub- mitted, an amount equal to a percentage of the grants awarded to the State for the pre- ceding fiscal year under that section, as fol- lows: (A) For fiscal year 1996, 10 percent of the amount awarded for fiscal year 1995. (B) For fiscal year 1997, 15 percent of the amount awarded for fiscal year 1996. (C) For fiscal year 1998, 20 percent of the amount awarded for fiscal year 1997. (D) For fiscal year 1999 and each fiscal year thereafter, 30 percent of the amount awarded for fiscal year 1998 or other pre- ceding fiscal year. The Administrator shall make amounts with- held under this paragraph available to States having programs approved pursuant to this subsection. (d) Technical assistance The Secretary and the Administrator shall provide technical assistance to coastal States and local governments in developing and imple- menting programs under this section. Such as- sistance shall include— (1) methods for assessing water quality im- pacts associated with coastal land uses; (2) methods for assessing the cumulative water quality effects of coastal development; (3) maintaining and from time to time revis- ing an inventory of model ordinances, and pro- viding other assistance to coastal States and local governments in identifying, developing, and implementing pollution control measures; and (4) methods to predict and assess the effects of coastal land use management measures on coastal water quality and designated uses. (e) Inland coastal zone boundaries (1) Review The Secretary, in consultation with the Ad- ministrator of the Environmental Protection Agency, shall, within 18 months after Novem- ber 5, 1990, review the inland coastal zone boundary of each coastal State program which has been approved or is proposed for approval under section 306 of the Coastal Zone Manage- ment Act of 1972 [16 U.S.C. 1455], and evaluate whether the State’s coastal zone boundary ex- tends inland to the extent necessary to control the land and water uses that have a significant impact on coastal waters of the State. (2) Recommendation If the Secretary, in consultation with the Administrator, finds that modifications to the inland boundaries of a State’s coastal zone are necessary for that State to more effectively manage land and water uses to protect coastal waters, the Secretary, in consultation with the Administrator, shall recommend appro- priate modifications in writing to the affected State. (f) Financial assistance (1) In general Upon request of a State having a program approved under section 306 of the Coastal Zone Management Act of 1972 [16 U.S.C. 1455], the Secretary, in consultation with the Adminis- trator, may provide grants to the State for use for developing a State program under this sec- tion. (2) Amount The total amount of grants to a State under this subsection shall not exceed 50 percent of Page 1886 TITLE 16—CONSERVATION § 1455b 1 See References in Text note below. the total cost to the State of developing a pro- gram under this section. (3) State share The State share of the cost of an activity carried out with a grant under this subsection shall be paid from amounts from non-Federal sources. (4) Allocation Amounts available for grants under this sub- section shall be allocated among States in ac- cordance with regulations issued pursuant to section 306(c) of the Coastal Zone Management Act of 1972 [16 U.S.C. 1455(c)], except that the Secretary may use not more than 25 percent of amounts available for such grants to assist States which the Secretary, in consultation with the Administrator, determines are mak- ing exemplary progress in preparing a State program under this section or have extreme needs with respect to coastal water quality. (g) Guidance for coastal nonpoint source pollu- tion control (1) In general The Administrator, in consultation with the Secretary and the Director of the United States Fish and Wildlife Service and other Federal agencies, shall publish (and periodi- cally revise thereafter) guidance for specifying management measures for sources of nonpoint pollution in coastal waters. (2) Content Guidance under this subsection shall in- clude, at a minimum— (A) a description of a range of methods, measures, or practices, including structural and nonstructural controls and operation and maintenance procedures, that constitute each measure; (B) a description of the categories and sub- categories of activities and locations for which each measure may be suitable; (C) an identification of the individual pol- lutants or categories or classes of pollutants that may be controlled by the measures and the water quality effects of the measures; (D) quantitative estimates of the pollution reduction effects and costs of the measures; (E) a description of the factors which should be taken into account in adapting the measures to specific sites or locations; and (F) any necessary monitoring techniques to accompany the measures to assess over time the success of the measures in reducing pollution loads and improving water quality. (3) Publication The Administrator, in consultation with the Secretary, shall publish— (A) proposed guidance pursuant to this subsection not later than 6 months after No- vember 5, 1990; and (B) final guidance pursuant to this sub- section not later than 18 months after No- vember 5, 1990. (4) Notice and comment The Administrator shall provide to coastal States and other interested persons an oppor- tunity to provide written comments on pro- posed guidance under this subsection. (5) Management measures For purposes of this subsection, the term ‘‘management measures’’ means economically achievable measures for the control of the ad- dition of pollutants from existing and new cat- egories and classes of nonpoint sources of pol- lution, which reflect the greatest degree of pollutant reduction achievable through the application of the best available nonpoint pol- lution control practices, technologies, proc- esses, siting criteria, operating methods, or other alternatives. (h) Authorization of appropriations (1) Administrator There is authorized to be appropriated to the Administrator for use for carrying out this section not more than $1,000,000 for each of fis- cal years 1992, 1993, and 1994. (2) Secretary (A) Of amounts appropriated to the Sec- retary for a fiscal year under section 318(a)(4) 1 of the Coastal Zone Management Act of 1972, as amended by this Act, not more than $1,000,000 shall be available for use by the Sec- retary for carrying out this section for that fiscal year, other than for providing in the form of grants under subsection (f). (B) There is authorized to be appropriated to the Secretary for use for providing in the form of grants under subsection (f) not more than— (i) $6,000,000 for fiscal year 1992; (ii) $12,000,000 for fiscal year 1993; (iii) $12,000,000 for fiscal year 1994; and (iv) $12,000,000 for fiscal year 1995. (i) Definitions In this section— (1) the term ‘‘Administrator’’ means the Ad- ministrator of the Environmental Protection Agency; (2) the term ‘‘coastal State’’ has the mean- ing given the term ‘‘coastal state’’ under sec- tion 304 of the Coastal Zone Management Act of 1972 (16 U.S.C. 1453); (3) each of the terms ‘‘coastal waters’’ and ‘‘coastal zone’’ has the meaning that term has in the Coastal Zone Management Act of 1972 [16 U.S.C. 1451 et seq.]; (4) the term ‘‘coastal management agency’’ means a State agency designated pursuant to section 306(d)(6) of the Coastal Zone Manage- ment Act of 1972 [16 U.S.C. 1455(d)(6)]; (5) the term ‘‘land use’’ includes a use of wa- ters adjacent to coastal waters; and (6) the term ‘‘Secretary’’ means the Sec- retary of Commerce. (Pub. L. 101–508, title VI, § 6217, Nov. 5, 1990, 104 Stat. 1388–314; Pub. L. 102–587, title II, § 2205(b)(24), Nov. 4, 1992, 106 Stat. 5052.) Editorial Notes REFERENCES IN TEXT The Coastal Zone Management Act of 1972, referred to in subsecs. (a)(2) and (i)(3), is title III of Pub. L. 89–454 as added by Pub. L. 92–583, Oct. 27, 1972, 86 Stat. 1280, which is classified generally to this chapter (§ 1451 et Page 1887 TITLE 16—CONSERVATION § 1456 seq.). For complete classification of this Act to the Code, see Short Title note set out under section 1451 of this title and Tables. This Act, referred to in subsecs. (a)(2) and (c)(2)(B), is Pub. L. 101–508, Nov. 5, 1990, 104 Stat. 1388, known as the Omnibus Budget Reconciliation Act of 1990. For com- plete classification of this Act to the Code, see Tables. Section 318(a) of the Coastal Zone Management Act of 1972, referred to in subsec. (h)(2)(A), which is classified to section 1464(a) of this title, was amended by Pub. L. 104–150, § 4(1), June 3, 1996, 110 Stat. 1381, and, as so amended, does not contain a par. (4). CODIFICATION Section was enacted as part of the Coastal Zone Act Reauthorization Amendments of 1990 and also as part of the Omnibus Budget Reconciliation Act of 1990, and not as part of the Coastal Zone Management Act of 1972 which comprises this chapter. AMENDMENTS 1992—Subsec. (i)(3). Pub. L. 102–587 struck out comma after ‘‘ ‘coastal waters’ ’’ and inserted ‘‘Zone’’ before ‘‘Management’’. § 1456. Coordination and cooperation (a) Federal agencies In carrying out his functions and responsibil- ities under this chapter, the Secretary shall con- sult with, cooperate with, and, to the maximum extent practicable, coordinate his activities with other interested Federal agencies. (b) Adequate consideration of views of Federal agencies The Secretary shall not approve the manage- ment program submitted by a state pursuant to section 1455 of this title unless the views of Fed- eral agencies principally affected by such pro- gram have been adequately considered. (c) Consistency of Federal activities with State management programs; Presidential exemp- tion; certification (1)(A) Each Federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is con- sistent to the maximum extent practicable with the enforceable policies of approved State man- agement programs. A Federal agency activity shall be subject to this paragraph unless it is subject to paragraph (2) or (3). (B) After any final judgment, decree, or order of any Federal court that is appealable under section 1291 or 1292 of title 28, or under any other applicable provision of Federal law, that a spe- cific Federal agency activity is not in compli- ance with subparagraph (A), and certification by the Secretary that mediation under subsection (h) is not likely to result in such compliance, the President may, upon written request from the Secretary, exempt from compliance those elements of the Federal agency activity that are found by the Federal court to be inconsistent with an approved State program, if the Presi- dent determines that the activity is in the para- mount interest of the United States. No such ex- emption shall be granted on the basis of a lack of appropriations unless the President has spe- cifically requested such appropriations as part of the budgetary process, and the Congress has failed to make available the requested appro- priations. (C) Each Federal agency carrying out an activ- ity subject to paragraph (1) shall provide a con- sistency determination to the relevant State agency designated under section 1455(d)(6) of this title at the earliest practicable time, but in no case later than 90 days before final approval of the Federal activity unless both the Federal agency and the State agency agree to a different schedule. (2) Any Federal agency which shall undertake any development project in the coastal zone of a state shall insure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved state man- agement programs. (3)(A) After final approval by the Secretary of a state’s management program, any applicant for a required Federal license or permit to con- duct an activity, in or outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state shall provide in the application to the licensing or permitting agency a certification that the pro- posed activity complies with the enforceable policies of the state’s approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the state or its designated agency a copy of the certification, with all necessary information and data. Each coastal state shall establish procedures for pub- lic notice in the case of all such certifications and, to the extent it deems appropriate, proce- dures for public hearings in connection there- with. At the earliest practicable time, the state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to the applicant’s certification. If the state or its designated agency fails to furnish the required notification within six months after receipt of its copy of the applicant’s cer- tification, the state’s concurrence with the cer- tification shall be conclusively presumed. No li- cense or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant’s certification or until, by the state’s failure to act, the con- currence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the applicant, finds after providing a reason- able opportunity for detailed comments from the Federal agency involved and from the state, that the activity is consistent with the objec- tives of this chapter or is otherwise necessary in the interest of national security. (B) After the management program of any coastal state has been approved by the Sec- retary under section 1455 of this title, any per- son who submits to the Secretary of the Interior any plan for the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) and regulations under such Act shall, with respect to any exploration, development, or production described in such plan and affecting any land or water use or nat- ural resource of the coastal zone of such state, attach to such plan a certification that each ac- tivity which is described in detail in such plan complies with the enforceable policies of such state’s approved management program and will