Popular in Texas Coastal & Ocean Law
Popular in Law
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Date Created: 10/09/15
Coastal law is focused on a place The coast is the intersection between land water and air although a much more nebulous concept Nearly half of all Americans live within 100 miles of the coast So there is a lot of development pressure Coastal law includes property law stemming from England and CL land use regulation water law natural resourceenvironmental law constitutional law federal and state statutes international law Why do we care about coastal issues Something enticing about living on the coast standard of living social status Should we require older homes to rebuild to a better standard today better able to withstand storms Miles of Gulf Coast 370 Miles of Coast 3359 Coastal population 2000 5211014 Lead Coastal Management Agency General Land Office Coastal Management Program Approval Date 1996 Laguna Madre a very shallow coastal bay off south Padre Island Next to the GIWW gulf intercoastal water way man made canal that goes from Mexican border up to Louisiana border and further 0 GIWW was built as a way of transporting materials by barges without going out into the dangerous gulf It is a manmade canal that s been dredged all through the bays and the land of Texas Controlled by the federal government They have to continually dredge it and put the spoils elsewhere Rollover Bay big shallow cut out on the bay side It was either a natural low spot on the barrier island where storms frequently rolled over OR it was where during prohibition people brought illegal alcohol to ship out 0 In 1950 s Texas thought it would be a great place to have an artificial pass between the gulf and the bay They lined it on either side with steel girders In order to improve the fisheries of Texas they injected more salt water into the bay But no one thought about the fact that where there is no natural pass the water interchange used to have to go all the way around when you cut a new path all kinds of new stuff happens There are different tides in the bay and the gulf so when it changes there is a time lag between the two It is a owing river because of the height difference that no one thought of Fish love owing water so now the pass is one of the best fishing spots on the Texas coast happy accident 0 CONFLICT 2015 State of Texas and the Corps of Engineers now want to close this pass because it s artificial and some people think it s causing increased erosion homeowners would want it shut down Because there s so much ow it carries a lot of 1 sediment into the GIWW Every 2 years the federal government has to go spend millions to clean out the GIWW and dump the sediment on the beach ongoing maintenance But now the fisherman are mad and don t want it to be closed Either way someone is going to be unhappy Rapid Changes 0 Erosion big sandy lowlying coasts tend to erode through natural processes or man made changes Homes built on land can eventually become homes on the beach or the water on stilts Anything submerged under water like this is owned by the state of Texas not the individual private landowner anymore through no fault of their own Homeowners lost in court every single time but the state still has to go through litigation because they can t just take people s homes Sometimes the gov will compensate the homeowners 0 Surfside Beach one of the most heavily eroded areas in Texas Was eroding at 10 feet a year What do you do when beaches disappear in theory the beaches are public property owned by the people of Texas and held in trust for the people of Texas This isn t true in other states where the beaches can be private property Texas Land Commissioner is in charge of enforcement The people of Texas will have open and unrestricted access to the beaches 0 This includes wet beach which is the line of mean high tide to where the water starts The dry beach is able to be held as private property this is the area from the wet beach to the natural line of vegetation Although dry beach can be subject to a public easement 0 A beach occasionally covered in water or sand is exclusively for the use of the public Nothing can obstruct the public access and if it does then it is a nuisance which the gov can cure Homes where the beach had eroded caused obstruction to the public s right of access to the beach so a whole bunch of them were removed 0 TX SC ruled that if the state came in and tried to order you to remove your home that could be unconstitutional Not unconstitutional under the 5th amendment but got there by saying that some provision of Texas law caused an illegal seizure under the 4th amendment 0 5th circuit expanded this and applied it to interference with a coastal property owner s right to refuse entry to public of their property This redefined beaches as being mostly private property something never before legal people putting up fences around the landbeach Protection Coastlines have always been heavily regulated places Sea turtles or endangered birds on the beach don t mess with them it s a federal regulation 2 Dunes are protected keep out State law protects sand dunes because of their important function Local regulations county or city failure to restrain animal stuff like that There s layers of local state and federal regulations that impact what you can do at the beach Interface between air land water energy and mass Can be complex and is constantly changing Nothing is static Some terminology 0 Littoral process that moves between land and offshore like erosion V Longshore process that moves from land to land down the coast 0 Why does the coastline littoral boundary move Shoreline accretion shoreline erosion water level rises water level lowers land surface rises land surface lowers 0 Accretion increase growth deposition of material coastline will move forward v Erosion when the coastline recedes 0 Saltwater 35 parts per thousand salt v Freshwater 0 parts per thousand salt There is a gradient area though ranging from 035 Braquish water around 15 ppt wouldn t want to drink it Gradient is never static cause of tides and winds Hypersaline saltier than sea water this is never good for a bay or for fishing All the fish leave because it s too salty 0 Subsidence sinking Sea level can change but so can the land Earthquakes clay soils pumping out of groundwater 0 Storm Surge a wave of water hurricane or tropical storm Normally the sea level is maintained because of atmospheric pressure But low pressure storms cause less air pressure keeping the sea at its level 0 Sea level change v land level change geoid the differences in gravitational pull around the planet can change sea level postglacial uplift earthquakes Not on exam Characteristics of the Texas Coast low tectonic activity sediments soft low elevation low slope In uences on the Texas coast lunar tides very small here wind can change sea level and usually exceeds tides here waves storms 0 63 of the Texas shore is eroding at different rates Did the sea rise or did the land sink It s all relative Harris County Sinks in the mid 1970 s Houston pumped ground water like crazy 450 million gallons of water a day From 19061995 we lost 11 ft in galleria memorial and heights and 9 feet in downtown and rice No more pumping and it is heavily regulated Some parts are still sinking today 5 ft in west Houston Think of it as a system of credits and debits is there more coming in than going out One leads to accretion and one leads to erosion We need more deposits 0 Credits can be longshore land to land down the beach transports into area river transport coastal land erosion onshore transport wind transport beach renourishment 0 Debits can be longshore transport out of the area wind transport away from the beach inland offshore transport deposition into deep waters mining BUDGET EFF SEDIMENT S e tutti rug lhn ghhu ma Eai l l thanapm t L i if f F39 r ifquot I f 391 quota n 39 2 a Mun a if Grantham gag 11 r tranhport I quot rig hrnah shure llwi 33955 3 i exchange with I 955 Bani UH untiuental ahalf I 395 a 39 j equot 5 quot39 539 Iii I warmth H 5 r E EF ST v l In a l r I Pm Br I39 Iquot debuts p 7 3 g If a fa Wigg um Sell Schematic of the prinhipal C mp m nlh that are imnlved in the devel opmcm hf as budget Hf littoral S idilm lll h Firhm F Human The Budge uf Littoral Sediments Cong1115 and rpplihatihnh th Hench h ll 153915 the sediment udge t Quses of Erosion Dams on the major rivers have reduced the volume of sand and sediment from reaching the Gulf Coast You re trapping sediment We keep damming up our rivers which were a major source of sediment on the coast line Creates more shallow water and prevents sediment from reaching the coast When you retain and store water behind dams which is fresh water that is not reaching the bay so it is not helping create and protect the coast Rivers have been diverted to better develop shipping lanes resulting in the critical erosion of nearby communities and land as well as shoaling ooding and safety issues in other areas Navigation structures such as jetties and dikes have changed the way that sand moves along the coast eroding downdrift shorelines Maintenance dredging of navigation channels has taken sand and sediment out of the littoral system Seawalls groins and other protective structures have caused erosion of downdrift beaches and shorelines Wakes surges and waves from boats ships barges and other vessels have eroded shorelines adjacent to navigation channels Groundwater and petroleum extractions are causing land subsidence and subjecting large regional areas of coastal land to be converted to open water Wetland Loss from dredging and filling to accommodate development has reduced the wetland s ability to buffer erosion effects from winds and waves There is a general ow of sediment from the south that goes up the coast of Texas Another ow goes from Louisiana towards Texas So the area where a lot of that sand comes in is Laguna Madre some growth here Laguna Madre is submerged land owned by the state of Texas But then there is an area rich in minerals and oil which would become submerged in high tide Land which is submerged is state owned Lawsuit went to the TX SC and they issued a ruling that the submerged land belongs to the state of Texas But then the TX SC reversed and said it was private land because the tides that blow over it are not lunar tides but wind driven tides and only occur when the wind blows water over the area Therefore it is not stateowned submerged land 5 The coastline changes when you divert rivers Sediment for the Brazos River has shifted it has eroded in one area delta and built up in another area instead Resengineers the river Changes the natural system Property areas in the old delta are probably not happy that their coast line is gone Also significant changes in Colorado RiverMatagorda Bay mouth of river has delta build ups which crossed over to Matagorda Then we created a channel to help the river get to the coast After we put in the ICWW intercoastal water way there were issues because barges have to cross They built locks to close off the area and help the barge get through this cut off the old river channel and redirected the water This formed a new delta in a different area Some people think that this vastly improved the environment because it removed some of the saltiness in the water which effected the fisheries and oyster business Sometimes alterations can be good What do you do if you re on an eroding coastline You can move your building inland or knock it down and rebuild Can only move if you have land behind you Brighton Beach Hotel on Coney Island moved the hotel 150 m inland using train tracks and engines in 1888 Soft Solutions 0 Throw money at the problem and bring in lots more sand Miami they rebuilt the beach in the late 70 s Once you start renourishing a beach you have to keep doing it There is an engineering process to this they can either place the fill directly on the beach to extend the natural beam seaward or they can place the beach fill as underwater mounds Depends on each beach s needs water ow wind Natural currents can bring the sand in or just atten it out a little 0 Beach Renourishment costs between 12 million dollars per mile Moving sand from one place to another smoothing it out and hoping it lasts 0 Renourished beaches can also provide storm protection the wave action takes sand from the dry beach pulls it offshore and when it s offshore it creates a shallower area so the waves start breaking farther offshore The natural coastline provides some protection not enough for a hurricane but helps with regular storms Sand Dunes also help with this process Hard Solutions 0 Build a big concrete sea wall the one in Galveston is still there so it works But when you start building hard structures on a soft changing coast line it changes the dynamics themselves Should we allow individual land owners to protect their property on an eroding coast line when it affects the person s property next to theirs 0 Basically it can erode the person s land next to yours faster when you build a sea wall Generally people weren t allowed to build private sea walls CA lets private property owners build protection but they have to go through a big permitting process with a paid fee and restrictions Territorial Seas The sovereignty of a state extends beyond its land territory and its internal waters to a belt of sea adjacent to its coast described as the territorial sea The contjguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured This allows nations to start setting their boundaries You can t just sail through another nation s territorial seas without permission In 1988 President Reagan signed claiming 12 nautical miles of territorial sea for the US also mentioned later established the territorial sea as a belt of ocean which is measured seaward from the baseline of the coastal nation and subject to its sovereignty Exclusive Economic Zone EEZ Most countries agree with UNCLOS the exclusive zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of their territorial sea is measured Can be used for the country s economic activity fishing minerals energy etc Sovereign rights for the purpose of exploring and exploiting conserving and managing the natural resources Whenever two nations are closer than 200 miles they split the difference in the middle Sometimes this can cause difficulties andor war England had war with Iceland over fishing rights Tidal Glossarv on ppt High Water Maximum height reached by a rising tide Mean High Water The average of all the highwater heights observed over the National Tidal Datum Epoch Mean Higher High Water The average of the higher high water height of each tidal day observed over the National Tidal Datum Epoch Low Water The minimum height reached by a falling tide Mean Low Water The average of all the low water heights observed over the National Tidal Datum Epoch Mean Lower Low Water The average of the lower low water height of each tidal day observed over the National Tidal Datum Epoch National Tidal Data Epoch The specific 19year period adopted by the National Ocean Service as the official time segment over which tide observations are taken and reduced to obtain mean values for tidal datums The present epoch is 1983 through 2001 Texas Coastal Boundaries the zone southwest along the coast from the Sabine to the Rio Grande seaward into the Gulf of Mexico for a distance of 1035 miles 9 nautical miles 3 leagues and inland to include 36 counties 0 3 nautical miles is the general distance given to each state Texas has 9 nautical miles There are lots of different boundaries depending on which state you re in 0 How you determine private property state owned submerged land territorial seas EEZ and the high seas The Old Tidelands Cases concerned argument about who has the right to own submerged land and who has the right to conduct activity on that submerged land eX pick up oysters These cases are all still good law 0 1843 Oysters SC started wrangling with issue of who owned submerged land private property or belonging to the sovereign In this case they decided that when the original 13 colonies became independent and sovereign then they basically took over whatever they owned at that time So what the sovereign before independence had was in the name of the King so how did England view this issue Can t create new ownership rights out of thin air When they signed the constitution they were able to retain some rights and had to give some up 0 1845 Alabama applied the rule in this case that the states reserved the right to those submerged land There is nothing in the constitution that said they were giving that up Gives states control of their tidelands There are no new rights just because some states joined later than others 0 The shores of navigable waters and the soils under them were not granted by the Constitution to the US but were reserved to the states respectively The new states have the same rights sovereignty and jurisdiction over this subject as the original states O 1894 the land below the highwater mark was the Kings except so far as an individual or corporation acquired rights in it by express grant prescription or usage 0 Jus privitum for the king or in a subject 0 Jus publicum of navigation and fishing Later became the public trust doctrine there were 38000 sq miles disputed between Peru and Chile This is an Anchovy fishing area which is a 200 million dollar industry Caused wars and intense disputes The Hague created a boundary that pretty much split it between the two Peru got 20000 and Chile got 18000 Also disputes in the South China Sea area over Spratly Island shared between many countries Lots of small islands and reefs Which tiny islands belong to which countries Last year china claimed it all for themselves crazy land grab What happens when you artificially create dry land where there wasn t any Trying to claim additional territory Look to UNCLOS doesn t extend your coastal zone when you create a new island Background principles of coastal common law all of these doctrines serve to reduce the rights of coastal land owners 0 Law of accretion and erosion 0 is the principle that certain resources are preserved for public use and that the government is required to maintain them for the public39s reasonable use 0 They have to maintain it can t sell it or destroy it or give it away 0 Think of it like a normal trust Trusts are created by a settlor who designates certain assets as the corpus of the trust Settlor charged a trustee with the fiduciary duty of managing the trust in accordance with the trust s purpose for the benefit of specified beneficiaries I Who is the settlor the government perhaps or old sovereign ambiguous concept I What is the corpus The land the resources the industry not every resource which could be private property Could be fish in the sea or the water in the rivers Could also be navigationthe right to sail a boat through a certain area of water I Who is the trustee The govemment duty to maintain I What is the trusts purpose Public good preservation and maintenance Ex fishery provides job and food We want to make sure they are over 9 farmed or destroyed through pollution Also recreation newer notion of trust Access ability to have access to something as a public trust right Environmental resources as part of the public trust not Texas but some states I Who are the beneficiaries The publicthe people of the US or Texas 0 Federal navigation servitude 0 General police power to prevent nuisances takings and developmental regulation 1930 s40 s submerged lands tidelands and coastal margins were being developed for oil in California Congress attempted to quitclaim all federal ownership over submerged lands in 1946 but Truman vetoed it Congressional members all wanted their own states to get the land and the mineralsresources US SUES THE STATES US so 1947 NO LONGER GOOD LAW CA leases submerged land in 3 nautical mile margin for oil US says they can t do that because it s the US s minerals Court held that the state was not the owner of any land off shore because the federal government has paramount rights over the coastal belt All the states became very agitated Concepts of ownership 0 Dominion ownership or proprietary rights 0 Imperium governmental powers of regulation and control 0 The Cannon Shot Test if a country wanted to claim ownership power of dominion and imperium only go out into the sea as far as they can defend it from foreign ships and encroachment SC did not apply this test in US v California In 1941 Texas declared ownership out to 24 marine miles In 1947 they extended the claim out to the continental shelf like 200 miles offshore These claims were never recognized by the federal government US so 1950 NO LONGER GOOD LAW US claims that they are the owner of the lands minerals and etc underlying the Gulf of Mexico Texas rebuts that the US does not have dominion and that the commerce clause power to control improve and regulate navigation of all navigable water does not envelop this taking and development of oil and minerals disputed Texas claims that they instead have open adverse and exclusive possession and exercised jurisdiction over the land When Texas was annexed they claim they retained all their land minerals and original boundaries 0 refers to political rights and sovereignty Negatives any implied special limitations of any of the paramount powers of the US in favor of a state When 10 states cease to be an independent nation they become a sister state on equal footing with all the other states This relinquishes some sovereignty O Held Because of the transfer of that sovereignty to the US the court holds that Texas must have relinquished their claim to the marginal seas to the US Citing US v California Texas ceded control when it joined the Union on an equal footing Therefore Texas was awarded 3 nautical miles just like every other state This led to Congress response with the US relinquished to the coastal states all rights in such lands within certain geographical limits 3 11 miles max and confirmed their own rights beyond those limits Sec 3 In the public interest lands beneath and natural resources beneath navigable waters within boundaries of the states hereby relinquished to the states Congress said they will recognize for every state a minimum of submerged lands out to 3 miles and a maximum of 3 leagues only in the gulf 3 leagues is 1039 miles Everyone starts with 3 miles and if you could prove more then the max was 3 leagues Original 13 states all had 3 miles international custom so all states had it kind of like equal footing US so 1960 US brought suit against LA TX MS AL and FL seeking declaration that the US had full dominion and possession over the lands minerals and other natural resources underlying the gulf of Mexico more than three geographical miles seaward from the coast of each state US argued that the Submerged Lands Act grants nothing more than 3 miles to Gulf States all of the Gulf States wanted 3 leagues Court was presented with a massive array of historical documents Language in Act Boundary as it existed at the time of entry is ambiguous it s a timeless instant Legislative history the Act was congressional application of the Pollard rule giving it back to the states ie overturning California case TWO PRONG TEST 1 what was the boundary set by preadmission constitution and laws and 2 what were the boundaries approved by Congress upon admission of the new state Have to meet both elements HELD Texas was granted the 3 league boundary from her coast under the Act Considerations historical documentation of what Texas claimed Texas boundary act of 1836 annexed agreement of 1845 annexation language addresses concerns with Mexico there was no map they had anticipated future negotiations Guadalupe Hidalgo Peace Treaty recognized border as extending 3 leagues from the mouth of the Rio Grande this was an executive adjustment 2nd part of the test 1 1 0 Implications of this case Texas gets all the oil and gas revenues from that area 1039 miles I Offshore Wind power leasing future thinking I Feds still have coast guard under the and The state can t interfere with fed access to their land pipes MMS permits access PRIVATE V STATE US SC 1988 whether Mississippi when it entered the Union took title to 42 acres of nonnavigable tidal submerged land running through the Gulf of Mexico 0 Navigable in Fact can be used for travel and commerce can oat a vessel on it Navigable in Law subject to the ebb and ow of the tide 0 All tidal waters are navigable waters This includes both in law and in fact 0 Look to Shively v Bowlby and the Public Trust Doctrine 0 Held States upon entry into the Union received ownership of all lands under waters navigable in fact and those subject to the ebb and ow of the tide They were put into a trust for citizens of the state by the Union basically making the state the trustee So the under tide waters passed to the State of Mississippi Look to the Purpose of the Trust If the purpose was navigation the private party wins because it was not navigable However if there were other purposes the state wins Possible purposes for trusts navigation commerce fishing oysters bathingrecreation environmental protection scenic beauty urban expansion and public access to use for all of the above Compare 0 Subject to tidal in uence and are navigable open seas bays Subject to nontidal in uence and are navigable rivers lakes Subject to nontidal in uences and are nonnavigable but share geographical chemical and environmental qualities with tidal lands 0 ie being in uenced by tides what about wind tides in Laguna Madre Common Law Rights what rights do property owners have 0 Right to have water remain in place 12 Right of access contact with water right to accretions gradual deposit Subject to reasonable restrictions e g pier for navigation Right of free use of adjoining water for commerce Reliction gradual recession of water leaving dry land Avulsion erosion of shoreline by wave or current not necessarily gradual RENOURISHMENT Who owns the beach When the state spends money to renourish the beach it is no longer private property it is public property spending public money to revitalize a public resource Some private landowners have tried to stop this renourishment claiming that it amounts to a taking The gov cannot spend public money to benefit private individuals so the state had to cancel beach renourishment on Galveston Island General Rules mainly in Texas Gradual or imperceptible change of the shoreline the littoral property owner either acquires or loses Sudden or perceptible changes on the coast no change in the property line or ownership Owner cannot intentionally increase property by causing accretion or reliction Owner is entitled to additions resulting from artificial conditions caused by 3rd persons Without his consent TX App 1993 TX claimed 36 acres of new land dry land that was caused by the Corps dredging of spoils which overtime through years of wind rain and gravity was washed ashore Accretion created dry land from submerged land Court held in favor of private land owner extinguishes State ownership landowner gains land by accretion if slow and imperceptible and the landowner did not create the accretion or get someone to do it for him 0 Examples of York artificial subsidence Baxter logj am and river sediment amp Davis enhanced erosion cases The creation of dry land the general rule is that a riparian or littoral owner acquires or loses title to the land gradually or imperceptibly added to or taken from his shoreline Erosion is the process of wearing away the land While accretion is the process of gradual enlargement Many States have developed their own versions of a quotpublic trust doctrinequot restriction that follows submerged lands conveyed into private hands by the State So even if the land passes from Public to Private there can be some rules 13 o Title to submerged land owned by the State may only be acquired by grant expressly authorized by the legislature State can condition this grant of things such as implied reservations for navigation valid public trust bathing and recreation for example if there was an inland pond and there was no way the public could have access to it without trespass the state would reserve that area for recreation easement SC Texas 1976 landowners York whose land had subsided due to municipalities and industries removing groundwater bring suit for compensation for the land which was submerged Submerged 9 feet in 70 years Land did not erode but submerged still underwater Not submerged land 28 acres submerged land 33 acre S Issue must a condemner pay for land submerged due to subsidence the 33 acres Yes Held Court ruled they were entitled to compensation for the land which had become submerged by the ship channel prior to the time that the governing authority sought to condemn the land 0 Court says whether the land subsided due to natural or artificial causes does not matter What does this mean with sea level rise Natural loss due to submersion TEX SC 35000 acres submerged in the Laguna Madre Was is submerged state land or private property Held private property significant oil and gas deposits at stake Relied on applying civil law of Spain and Mexico in which determination of a shoreline is to be found where the mean daily higher high water level reaches the mainland NOT the highest water level 0 Even though natural the wind driven tides several day a year do not determine the shoreline under Luttes Wind regular shallow infrequent tides v Lunar 186 year tidal epoch Water reaches the bluff line the state claims as a boundary at most once or twice a year It is odd to think of a shore as a place where the water almost never is 14 The Bundle of Sticks there are different property interestsrights that you can possess Not everyone possesses all of them 0 Right to own 0 Right to build or use Lucas case 0 Right to maintain or protect from the sea important do you ever possess it when you buy it 0 Right to exclude others 0 Right to recoup investment that you put into the property 5th Amendment 1791 two prongs nor shall private property be taken for public use without just compensation law nor be deprived of property without due process of 0 Basic Idea The sovereign can always take your land for a public purpose Don t single out individuals to bear the costs of measure that benefit the public as a whole 0 The theories that underlie the takings clause lay in equityfaimess people s property should be treated equally political structure majorities should not be able to pick on weaker individuals and efficient decisionmaking gov should have to take costs into account in order to make better decisions Three basic types of takings 1 Government takes title eminent domain 2 Physical invasion andor 3 Diminution in value regulatory taking 1922 a regulation might be a taking if it goes too far in diminishing the value of the property But what is too far 1987 CCC said Nollan could only rebuild house if he granted public access easement to the beach This condition had no nexus to the vindication of any legitimate public interest CCC wanted to regulate everything that occurred in that coastal zone and wanted the new easement where none previously existed 0 Court held that this was out and out extortion Basically the state was conditioning granting a building permit on a donation of land for public use The state just didn t want to buy it because that area is super expensive 15 0 This is too far singling out Most state coastal programs try to focus on the narrow strip Critical area focused on the popular beach Starts to run up against the changing federal takings doctrines US SC 1992 P purchased two beachfront lots He intended to build singlefamily homes on each lot but the legislature passed the which barred the building Purpose of the act protect property from storms tides and beach erosion and as an environmental protection 0 Issue The Petitioner claimed that the passage of the Act resulted in a taking of the property since he cannot use it for the intended purpose 0 Does the nobuild regulation result in a compensable taking Yes State paid Lucas 16M then the state resold the land to another developer the shore started moving back again 0 RULING the state cannot prohibit an owner from using the land private property as they originally intended unless it is shown to be a nuisance or general property law prohibits it 0 The US SC said that mandated preservation of private land looks like a conversion of private property to public a classic taking Regulation of land use must account for owners traditional understanding as to the states power over their property rights 0 By way of example the Supreme Court stated that the owner of a lake bed is always aware that he may be stopped by law from ooding adjacent property to create a landfill However here since a state s common law principles would not prohibit the Petitioner from building on the land then a taking has occurred Two tvDes of regulation that are considered takings 1 Where the property owner suffers a physical invasion of his property and 2 Where the regulation denies all economically beneficial or productive use of the property 0 Was it really 100 or 90 or 80 value lost Was it permanently lost Who has ownership over submerged land which through filling will later become exposed land US SC 2010 In 2003 Florida attempted to replenish their beach through pumping sand from shallow submerged beach areas onto the shore P argued that these shore lands were held in public trust for all people to own and enjoy so when they are depleted as proposed by the state there was a constitutional taking and the public should be compensated Claimed it eliminated two of the public s rights right to receive accretions and right to contact water 16 0 FL SC said that the accretion right was a future contingent interest and not a vested rights Also there was no right of water contact independent of the right of access and the public s access would not be infringed 0 Did this ruling constitute a judicial taking No because the Ps lose on the merits Florida law allows the state to fill submerged land and the state keeps ownership 0 Issue Whether dredging submerged sand from the public s shoreline constitutes a taking pursuant to the 5th and 14th amendments NO 0 Reasoning There is no taking where the property owners cannot show they have rights to future exposed land The people with rights to future exposed land would be those who might own the submerged land once it becomes exposed postdredging Moreover their right to the land must also be superior to the state s right to dredge 0 In the instant case the state showed it owned the submerged land and therefore had the right to fill it The state therefore still owns the tobe exposed land after the dredging even if the adjacent property owners property is no longer technically a beachfront property Options on an eroding cog the state can 0 Prevent development setback the houses from the coast 0 Defer action do nothing until necessary then compensate renourish build wall Establish a 0 Originally Texas was unique in passing the DEA Open beaches act which creates a kind of rolling easement Who absorbs the cost in a moving coast The homeowner who built there just too bad 0 Def An interest in land along the shore whose inland boundary migrates inland as the shore erodes In Texas an easement along the shore whose inland boundary migrates inland or seaward as the shore erodes or accretes 0 When you have practically no coastline you will have no tourism No money coming in for the state They need a new easement to preserve public access whenever the coastline erodes There is pressure on the state to prevent deterioration from property owners and businesses who thrive on tourism money Rolling easement before severance there is nothing in the DEA that mentions rolling It is not in the text Existence of the rolling easement was challenged in 1986 where the court held that the easement moves and wherever it rolls private property becomes encumbered by the easement so it was implied in the DEA Privatepublic boundary defined by daily ebb ow of the sea Court thought the purpose of the DEA was to provide the public with 1 7 unrestricted access below the line of vegetation over which it had the easement otherwise the public would lose access to the beach 0 No conversionNo physical occupation rolling easement is a common law doctrine a natural process landowner could win as well as lose likely they are aware of the risks and therefore there is no conversion from public to private Tex SC 2009 FACTS Severance was a California lawyer and real estate agent who bought 4 properties in Galveston for a very good price on the beach all behind the line of vegetation All home owners were given disclosures that they were required to sign regarding legal and economic risks of purchasing coastal property near a beach Six months after she bought the land Hurricane Rita eroded vegetation line to behind the house causing a large part of her property to be located on dry beach Note house has to be behind the line of vegetation and the line of vegetation has to be natural Can t add your own plants in front of your house and call it the vegetation line Galveston sent letters to all the homeowners whose land was on the dry beach and warned that the homes might be subject to a removal action She filed suit against the D in Houston seeking declaratory and injunctive relief to prevent them from enforcing a public easement under the Texas Open Beaches Act 0 Issue Severance argues that the state is attempting illegal seizure under the 4th amendment and an impermissible taking without just compensation under the 5th amendment 0 She claimed that the imposition of a public easement without compensation for a public purpose violated federal law under color of state law 42 USC 1983 anyone who under color of state or local law causes a person to be deprived of rights guaranteed by the US constitution or federal law is liable to that person 0 D filed a motion to dismiss claiming that it was unripe no one had actually taken her property yet that she couldn t just sue the state and that the DEA didn t create public property right it merely formalized the system of right that already existed under common law IE you cannot have taking if you never possessed that property right 0 The rolling easement public easement on the dry beach if the public has proven there is an easement by prescription dedication or public use D claimed that the rolling easement shifts back and forth between the vegetation line and the wet beach 0 Trial Court Held facial challenge to OBA OBA does not create the easement just recognizes one that has always existed Fed Constitution does not create property rights they are created by state law They say that her property has always been burdened by a public easement and she even recognized it when she signed the disclosure She appealed 0 5th Circuit Held split decision 5th amendment taking claim is not ripe until the state seeks to remove the houses OBA not currently being enforced against Severance Court looks at fitness for adjudication and hardship of withholding consideration 4th amendment seizure claim is ripe because the P cannot exclude people now The ability to exclude others is a key 18 concept to the holding of private property If you don t have the right to exclude then you don t have that property right If the DEA messes with your right to exclude then it could be seen as a seizure Everything in this case depends on whether the easement rolls If the easement does not roll then no matter what the situation today if the easement is fixed it does not exist on her property today If it rolls then it could seize certain property rights and deprive her of them So does Texas recognize a rolling easement 5th circuit certified the question as not have been answered by the court before and then punted it to the TX SC TX SC Holding Easements roll slowly and gradually Held that the rolling easement doctrine does exist What happens when it s not due to erosion or accretion but when it s a rapid process and not a slow gradual one When it is a rapid evulsive event it does not change the property boundary Slow accretion or erosion DOES change the boundary But it is very hard to draw the line between what it slow and fast they left it to the trial courts to determine on a case by case basis There is no bright line about what rate of erosion is avulsion I How to prove easement existed You have to start off asking if the easement even exists in that area and prove it Has anyone ever come to court and proven that the easement existed If no then you don t have to deal with it they re all trespassers You only have an easement if the public established it through prescription dedication or customary usage You have to go to court and prove the easement through one of the avenues below This is a big change from just deferring to the DEA There has not been a big rush to court for people to prove that the beaches have easements I Court holds that the rolling easement is a creature of Texas common law so no compensation is required I According to the Court the public no longer has access to the beach where Ms Severance39s home is located because Hurricane Rita caused the shift of the vegetation line this was a rapid evulsive event not a slow gradual shift Consequences of Severance the easement if established by can roll by slow erosion or accretion Where has the state proved an easement An easement cannot roll due to avulsion If storm avulsion removed that entire dry beach is the public easement forever extinguished No bright line about what rate of erosion is avulsion I GLO argued that the case was now moot because severance no longer owned any of the properties after she sold them to FEMA 5th circuit held that the case was not moot as she could still be prosecuted if she had excluded the public when she owned them PostSeverance What should the state do 19 GLO general land office cancelled renourishment projects on private beaches State can t spend tax money to renourishbenefit private property They negotiated that if the home owners wanted renourishment they had to each dedicate the dry beach in front of their houses to the public but this didn t happen because the home owners didn t want to Prove the easements exist Hasn t been a ood of litigation Negotiate easements Didn t really work out Condemn easements Too expensive TX leg wouldn t appropriate money to drag all the property owners into state district court in a condemnation action What about eminent domain State can always do that but it is way too expensive They d have to pay market price for a piece beach of all the land General land office does not have eminent domain power though Rolling Easement in Texas The public shall have the free and unrestricted right of ingress and egress if the public has acquired a right of use or easement to or over an area by prescription dedication or has retained a right by virtue of continuous right in the public to the larger area extending from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico Tex Nat Res Code 61001 1959 There are 3 tvDes of public beaches under OBA 1 wet beach 2 state owned dry beach and 3 private dry beach where the easement has been proven and such an easement can roll slowly Everything else is private property Creates a statutory right for a citizenpublic to come in and argue that they have acquired the right and that there is an easement A rolling easement recognizes the reality of tide and stormdriven dynamism of the natural boundaries Behind vegetation line private property cannot artificially create a vegetation line Dry Beach private property usually Wet Beach state owned Water submerged land state owned gt The public easement would go from where the water hits the wet beach to the vegetation line The property is not taken away from the private property owner but just used for public easement enjoyment and use 20 ulb39li Efa eWlnedsulbamerged lend 711W 39 Bram b hq H11quot Tegeii iiml mull Line an Beach We Hear ier mailer How does the state create the easement through a statute with no compensation and not constitute a taking If the public has acquired a right through continuous use sounds like adverse possession then they have created an easement You can never adversely possess public land only private land Alternatively if you own a piece of beachfront property that has never been used by the public and can prove that then there is no right for the public to ingress and egress your land However you can t put a fence around your dry beach or out into the water so the masses could just walk on the private property 0 TX proposed adding provision of the DEA public beach to the Texas constitution in 2008 because they wanted uniformity and did not like what happened in the Severance case It was approved by 79 of Texans but the court did not take this into account in the severance case 0 So now in the the public beac consists of stateowned beach from mean low tide to the line of vegetation of which the public has acquired a right of use or easement Public always has right of ingress and egress on a public beach 0 Statute 61014 Denial of Access by Posting b no person may display or cause to be displayed on or adjacent to any public beach any sign marker or warning or make or cause to be made any written or oral communication which states that the public beach is private property or represent in any other manner that the public does not have the right of access to the public beach as guaranteed by this subchapter I ie property owners nearby can t just put a sign up to get people off the public beach nv of which suf ces 1 By Prescription prove all the elements of adverse possession Actual possession of land Adverse claim 21 Open and notorious use Exclusivity not strict adherence to property law because it s public use and Continuous use for at least 10 years 2 By Dedication a donation for public use elements Owner making the dedication must have title prior to it Dedication must serve a public purpose Owner must make an express or implied offer and The public must accept the offer 3 Through Customary Use implied acceptance By general and customary use Fishing swimming recreation no formalities required Continuous Use Easement Blacks def is established through usage or practice of the people which by common adoption and acquiescence and by long and unvarying habit has become compulsory and has acquired the force of law with respect to the place 0 LE no one remembers a time when the easement didn t exist This is different from a prescriptive right because they exist longer than anyone remembers 0 Law cannot freeze such an easement at one place any more than the law can freeze the beach itself 0 Custom is a re ection in law of a long standing public practice and therefore the legal result should mirror the factual reality as closely as possible Court of Civil Appeals Houston 1964 Action by Ps to establish public rights in beach west end Galveston Island 13 mile road Court of appeals supported findings of dedication and prescriptive easement AG asserted that the state owned controlled and maintained barriers from the line of vegetation seaward beyond the line of mean high tide at three defined positions 0 Petitioners went through each of the ways a public easement could be established Prescription implied dedication and continuous use 22 o Petitioners claimed that they had used the land without challenge or interruption until the barriers were erected on 13 mile road and thus it was part of a time honored custom and common law The people had adversely established an easement by prescription The land had been expressly dedicated They claimed the barriers were a public nuisance and against public policy 0 The beaches were kept up with county funds 0 Court says that the details show that the owners beginning with the original ones had thrown open the beach to public use and it has remained open for over a hundred years Even though there was a fence at one point it was left open for visitors They had an old man give testimony 93 about people using the beach a hundred years ago and that the general public was allowed use of the beach 0 Added complication now aerial photography satellite imagery google earth GPS monitoring surveys done by the state after each storm comes through You could try to establish continuous use or prescriptive use now on a portion of beach but it s not as easy as it was back in the 60 s because the beach has now moved Disclosure post 1986 OBA required purchasers to sign a disclosure waiver of the right to maintain house seaward of the vegetation line recognition of the limits of their possessory interest No Disclosure pre 1986 enforcement of OBA only when house blocks public access to beach or is threat to public health GLO policy These are violations of common law nuisance Ie an exception to Lucas total taking test Current case surfside case pure 5th amendment and takings case filed in 2001 Each house was constructed behind the vegetation line Remanded in light of severance Currently being briefed to the court of appeals Only 2 out of 42 homes still exist 23 provisions 6 I 00 Ii Definitions 6 Ii 0 I F I Temperarsi suspension I 00 Ii Polk 3 r Ii 0 I 3 Enfercement 6 I 0 I 3 Prohibition 6 Ii 0 I 83 0 35 retrieval 6 I 0 i4 Denial of access of houses due preizess 6 I 0 I 6 areas with no 6 Ii 0254 disclosure Vegetation lines 6 I 0 Iquot Iquot certain Eondiitions Under OBA you can t maintain a home on an area of public beach where an easement has been established because it obstructs the right of access GLO interprets it as meaning working with other provisions that require building permits this is an interpretation that prevents a coastal property owner from building a sea wall to protect their home Once you build a sea wall in front of your property if the line of vegetation moves back behind your property the sea wall if then an obstruction on the public beach 0 Recommend to a client that they could build it behind the vegetation line entirely within his private property Then once the line of vegetation has eroded is it obstructing public beach No one has ever tried to do this because they want to build the sea wall out to where they think their property is Barrier Island long narrow offshore deposits of sand or sediment that run parallel to the coastline They are separated from the main land by a shallow sound bay or lagoon and are often found in chains along the East Coast and Gulf of Mexico Peninsula almost completely surrounded by water and projects out into the water GLO has its own rules which allow disaster orders to suspend actions After years of enforcing the DEA each time there is a big natural storm event the commissioner gives themselves a lot more exibility A new client walks into your of ce and says 0 Someone closed my beach ask where did this happen Beach on the dry sand only exists where there is a public easement However public beaches also include the wet sand If they closed the wet sand part of the beach anywhere in Texas then it would be a violation of the public easement Depends on how far the beach is fenced off dry beach 24 wet beach line of vegetation It s difficult because you don t know if any easement exists there 0 Can I now fence off my private beach Only for dry beach do you have to worry about an easement 0 My submerged lot is resurrected Do I own it again What if there is a storm event that takes sand from LA and dumps it on TX so now its dry beach again through a natural process In theory you could regain your property through slow accretion Alterations in the coastal zone that change the currents and stuff can cause accretion There is a rule that allows the land commissioner to identify plots of submerged formerly private property on the tax Roll and ask for them to be removed from the tax roll so you re not getting taxed on it Does removal eliminate that property forever If land is submerged it extinguished your property right can you get it back 0 I own the newly renourished beach Court held that the Porrettos did own the dry beach no easement paid taxes But the beach had been renourished so did they own the renourished beach or did the state that paid for it Gave them ownership of the dry beach up to a point then they gave the state ownership of the renourished dry beach when the state takes sand and puts it on the wet beach that creates accretion and that s state No takings held What can help save the beach Protections against building in the coastal zone limits what you can do in the sand dunes Beach front certification standards so as not to become a nuisance or impede the public Texas lost a lot when severance came out but there are other things in the law and rules ex city of surfsides new dune protection and beach access plan that help protect the beach 0 Problem all of these other statutes that relate to the coastal zone like coastal erosion statute and dune act all have a definition of public beach but every one of them simply uses the definition that is found in the DEA So the aw is that they all rely on the same definition Before you can impose a permit requirement on someone wanting to build in the immediate coastal zone you have to prove that there is in fact a public beach there coastal erosion planning and response act Passed in 1999 by Texas which provides funding to state coasts for project intended to slow the effect of coastal erosion Can also be used to help fund dune protection and restoration programs Project proposal should be submitted to the Land Office Galveston s problem losing up to 10 feet of shoreline a year for the last 50 years 25 Causes global water levels are rising sinking due to pumping out of ground water two huge refineries pumping millions of gallons of groundwater oil and gas and natural weather events Subsidence causes coastal erosion These events are happening everywhere so why such detrimental effects to Galveston Island Coast line of Texas is very shallow Rivers being damned off cut off the fresh sand source Flat beaches allow for small sea level changes to have significant effects A few inches of water rise means loss of a hundred or more feet of beach to the Gulf Important Provisions of the requires studies reports and projects Provides for funding of erosion response Commissioner may a response project on private property without first obtaining written consent of the property owner TAC Allows removal of submerged land from tax rolls Closure of certain manmade passes 33613 TX coast and erosion response DIE Have to do study report to the legislature estimate cost of proposed project detail every project and proceeding done for any economic and natural benefits from coastal erosions response report how much money you have left over from last time Three approaches to defending coast line and property 1 Hard structures seawalls groins jetties a Seawalls private seawalls are effectively prohibited by the DEA by beachfront setbacks and permitting requirements Backwash of waves breaking against seawall can cause accelerated erosion of sand Hard structures walls jetties groins all fail to prevent to beach from eroding 2 Soft structures geotubes beach renourishment 3 Nonstructural land use restrictions setbacks and dune protection Sand Placement Method Texas has attempted beach renourishment in Galveston 4 miles of coast Hoping to raise the elevation of the beach They were going to take sand from the Houston ship channel dredging as part of regular maintenance Not every dredging generates the kind of sediment that you can then put on a beach Depends on how clay like and organic the material is which hardens in the sun stinks from all the organic material and would be dark grey or black 26 Costs very expensive when you are actually renourishing you have to install the giant transport tubes monitor them pump the sand redistribute the pumps and it takes a lot of manpower Average cost is a 1 million to 15 million every mile Either comes from state agency or some kind of federal grant FEMA package after a hurricane Could be a grant under the coastal zone management act CZMA o For example GLO under statute charges a fee on every barrel of oil imported or exported through Texas ports which goes into an oil spill expense fund that is guarded and lock boxed for any oil spill that may happen What to expect after construction waves will smooth the renourished beach from the construction template to the design template They put more sand on the beach during the construction phase because they know part of it will be eroded away by the waves As the beach is smoothed by waves a temporary scarp will form along the water s edge Geotubes used to be a big deal cheaper than renourishment and doesn t involve a permanent structure on the beach Congress appropriated 10 million dollars for them They are sediment filled sleeves of geotextile fabric with a cross section of 12 feet Rests on a fabric scour apron with sediment filled anchor tubes along each edge Placed in a trench running parallel to the shore 2 feet of sand and vegetative cover Like a sand slurry filled sock It becomes the structural heart of a newlv created sand dune Cover it in sand and plants or let the natural vegetation reestablish itself on the dune Why not just create a dune out of sand Because it would be like a sea wall without permanent structure The waves may take away the sand in front and the top of the geotubes but theoretically not behind the dune and the tube will stay in place Never meant to be permanent solution Ended up happening after they were installed there was a series of storm events Because they were not combined with renourishment projects at the same time there was no beach in front of the tubes to protect them The tubes fail when they are under direct attack by waves Guideline for location set forth by coastal coordination council if fore dune is on the beach then it should be placed landward if there is no fore dune then it should be behind line of vegetation The geotubes should only be placed seaward of the line of vegetation as long as the beach width is maintained through nourishment Admit they made a lot of mistakes Didn t put them in the correct place and led to a decrease in the width of the beach Also these geotubes are about 8 feet high and they put them in front of access points So people couldn t get to the beach essentially forming a de facto private beach 27 0 Beaches in front of the tubes are 2183 feet narrower than those without due to the tubes being placed seaward of houses overlapping the natural vegetation line Making some parts impassible when water is only 2 feet above normal sea level 0 Maintenance tubes must stay covered with sand and vegetation Fabric was exposed to the sun and subject to degradation They would have to repair holes as soon as they could Gem u be Sch em tie EE ENLM 39lllllllli initial 51pm Fl App re lmately T T39t own IIIquot Ma l appmrlmately 332 TI F l of the Texas Natural Resources Code Sec 6300163181 State wide statute Local authorities can take over the role of protecting sand dunes Surfside beach plan was a beach maintenance and dune protection plan for the local ordinance Texas has a little booklet about dune protection manual for the Texas Gulf Coast 0 Commissioners can create a protection line for dunes which can be drawn a max of 1000 feet landward of the mean high tide line Any activity taking place seaward of this line requires permits from the county commissioner s court 0 There are also some builders that will just do this because they ve realized if they have a coastal plot that has sand dunes in front of it they should keep them The sand dunes will help to protect their home from storm surges 0 Sand dunes are also a valuable resource and have special value Counts as a coastal habitat which deserves protection There are restoration projects done by state or local authorities Another response to an eroding coast Setbacks set back from the beach in Texas this is mostly done through building permits and dune and beach management plans GLO beachfront construction standards Rule 155 200 feet or otherwise impedes or encroaches on public beach 0 Dune protection act functions as a setback Dune protection line max 1000 ft from MHTL permits required 28 Retreat and avoid local gov used to go get a permit for demolishment when the houses were swallowed by water How do you encourage retreat and avoidance It s not good public policy to tell people what they can do with their property National coastal zone recognition that the coastal zone of the US was rapidly changing and more people were moving there Less than 10 of land mass has more than 39 of the population 190 sea ports and 700 billion in merchandise per year 180 million visitors every year 75 of US fisheries spawn in the coastal zone 0 Nixon wanted national land use policy controls but this didn t get passed CZMA does not deal with land use CZMA provides funding and assistance to states that develop a Coastal Management Program NOAA approves the voluntary CMP that complies with CZM policies state then gets veto over federal actions in CZ if they are inconsistent with the state CMP state gets federal and state actions in the coastal zone must be consistent with their approved CMP Cooperative Federalism of the Act The CZMA offers a special type of contract States are not required to enter into the partnership offered by the federal government Similarly the federal government does not have to enter into a relationship with a state if it deems the state s coastal management plan to be deficient The considerations exchanged in the contract include cash from the federal government to the state government in exchange for a state program designed to protect the coastal zone in accordance with specific federal rules States get a voiceveto in federal activities So long as a state remains in the partnership it must follow the CZMA mandates for a national system of coastal management including mandates for environmental review consistency determinations and public participation Federal Power Remains CZMA excludes federal land presidential exemptions paramount interest recently in the sonar and whales case secretary override and Congress can change the CZMA CZMA Sections 33 0 1451 National interest present in the effective management beneficial use and protection and development of the coastal zone Gives lots of reasons for why it is important and how valuable it is 0 1452 It is our national policy to preserve protect develop and where possible to restore or enhance the nation s coastal zone for this and succeeding generations Gives list of 29 what the program provides for protection management to prevent loss of life and property improve safeguard and restore quality of coastal waters public access to coasts for recreation 0 1454 Any coastal state which has completed the development of its management program shall submit such program to the secretary for review and approval pursuant to section 1455 of this title 0 1456 Coordination and cooperation secretary shall consult with and cooperate with to the maximum extent possible and coordinate activities with other interested federal agencies Each state can submit a management program under section 1455 but it will not be accepted by the secretary unless it has been adequately considered Federal agencies that undertake development projects in coastal zones have to make sure that they comply with enforceable policies of approved state management programs 0 1458 Review of Performance evaluation of adherence with the terms of the federal grant Secretary will conduct a review and evaluation of performance of coastal states with respect to their coastal management Shall include a written evaluation with detailed findings and what issues need to be addressed There is public participation secretary shall conduct the evaluation in an open and public manner and provide full opportunity for public involvement including the submission of written and oral comments Notice and Comment 45 days notice in federal register comments 120 days to complete evaluation 0 If there is noncompliance the secretary may suspend payment of any portion of financial assistance extended to any coastal state under this chapter Can also suspend unexpended portion of assistance To do this the secretary has to provide the governor of the state with written specifications and a schedule for actions that should be taken and how the funds from the suspended financial assistance shall be expended by the coastal state to take the actions 0 Secretary can also withdraw approval of a state s program CZMA relies on voluntary program implementation by the coastal states and does not establish mandatory standards for compliance It instead seeks to encourage state participation through federal financial grants and the creation of a new federal consistency doctrine 0 The generally requires federal agencies applicants for federal permits and applicants for federal project funds to be consistent with approved state management programs for activities affecting the coastal zone Thus a state may stall or even stop a federal agency activity far removed from the boundaries of the state by objecting that the activity is not consistent with the state39s management program and that the activity affects the state39s coastal zone 30 Section 307 of the CZMA was envisioned as the heart of the act providing the principal incentive for states to develop coastal management programs The section charged the Secretary with the responsibility to consult cooperate and coordinate with other Federal agencies plus forbid the Secretary to approve any state program quotunless the views of Federal agencies principally affected by such program have been adequately considered Definitions under CZMA 304 Sec 302 Congress founds that we have a national interest in the coastal zone Rich in resources diverse in uses Increasing and competing demands ecologically fragile Irretrievable losses Urgent need to protect Sec 302i encourage the states to encourage their full authority assist them to develop land and water programs policies criteria standards methods for dealing with decisions of more than local significance 302 gt Gives federal financial assistance to help states with new and expanded energy activity to increase energy selfsufficiency added 1980 gt Recognized that coastal and adjacent land use which drain into the coast impacts coastal water quality added 1990 gt Addresses impacts of global warming and sea level rise added 1990 Policy of CZMA 303 is to gt gt Encourage special management plans to protect significant natural resources Encourage the participation and cooperation of the public state and local governments and interstate and other regional agencies Encourage coordination and cooperation with and among the appropriate Federal State and local agencies Policy of CZMA 3031 is to preserve protect develop and where possible to restore or enhance the resources of the Nation39s coastal zone for this and succeeding generations Policy of CZMA 3032 is to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone State participation To date all 35 eligible coastal and Great Lakes states and territories have entered into the voluntary Federalstate partnership offered via the National Coastal Zone Management Program Texas was approved in 1996 Illinois was the last program to be approved in 2012 31 meant to contain goals and policies to help protect the state s coast The state receives funding from the feds for their coastal protection projects and the Land Office is in charge of administration of the project Texas Coastal Coordination Council CCC reviews the project for federal consistency The CMP shall provide for 0 Protection of natural resources 0 Management of coastal development to minimize the loss of life and property caused by improper development 0 Improve safeguard and restore the quality of coastal waters 0 Priority consideration being given to coastal dependent uses and orderly processes for siting major facilities 0 Public access to the coasts for recreation purposes 0 Continued consultation and coordination with and the giving of adequate consideration to the views of affected Federal agencies 0 Giving of timely and effective notification of and opportunities for public and local government participation in coastal management decision making Submission of CMP under Sec 305 0 Any coastal state which has completed the development of its management program shall submit such program to the Secretary for review and approval pursuant to section 1455 of this title 0 Entirely voluntary but if you want federal funds then do it CMP Approval Found under the administrative grants section 306 a Grants may be given to states to administer the CMP b Only if the state has an approved CMP that complies with subsection d d 393 What is required for CMP approval under 306d1 Notice and comment open to the public Participation of all levels of government public and private interested parties Consistent with CZMA policies see above 393 What is required for CMP approval under 306d2 identify the boundaries 3 2 Give definition of permissible land uses Include inventory of special areas Explain how the state will exert control Give broad guidelines for priority of uses Description of organizational structure Texas networked agencies California permits Definition of beach Planning process for energy facilities 0 306d3 11 other requirements Mechanism for coordination with other plans Held public hearings Approved by Governor Designated agency Texas GLO general land office Ready to implement Techniques for land use control 306d11 The management program provides for any one or a combination of the following general techniques for control of land uses and water uses within the coastal zone A State establishment of criteria and standards for local implementation subject to administrative review and enforcement B Direct State land and water use planning and regulation C State administrative review for consistency with the management program of all development plans projects or land and water use regulations including exceptions and variances thereto proposed by any State or local authority or private developer with power to approve or disapprove after public notice and an opportunity for hearings 306d8 The management program provides for adequate consideration of the national interest involved in planning for and managing the coastal zone including the siting of facilities such as energy facilities which are of greater than local significance 306d14 the management program provides for public participation in permitting processes consistency determinations and other similar decisions 33 306d15 The management program provides a mechanism to ensure that all State agencies Will adhere to the program 306ltegt Plans can be modified at any time subject to approval Must promptly notify NOAA of changes Presumed to be approved if NOAA doesn t act Within 30 days or 120 if extended CZMA and Climate Change gt 3021 Because global warming may result in a substantial sea level rise With serious adverse effects in the coastal zone coastal states must anticipate and plan for such an occurrence gt 3031211B1 the management of coastal development to minimize the loss of life and property in areas likely to be affected by or vulnerable to sea level rise land subsidence and salt water intrusion gt 3031211K1 the study and development of plans for addressing the adverse effects upon the coastal zone of land subsidence and of sea level rise gt 303131 to encourage the preparation of special area management plans including those areas likely to be affected by land subsidence sea level rise gt 3091 a1121 Preventing or significantly reducing threats to life and destruction of property by anticipating and managing the effects of potential sea level rise and Great Lakes level rise 307 c1A 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 consistent to the maximum extent practicable With the enforceable policies of approved State management programs 0 Certify to state agency Within 90 days 0 Catch all Funding permits licensing approvals EISs 307 c2 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 management programs 0 Actual federal facility e g military base 34 307 c3 Applicant for any federal permit to conduct activity in coastal zone that would affect land or water use or natural resources must provide state with certification 0 Includes 0ampG exploration and production plans under the Outer Continental Shelf Lands Act 0 E g Corps 404 permit 0 Added after Calif v US decision 307 e Nothing in this chapter shall be construed to diminish either Federal or state jurisdiction responsibility or rights in the field of planning development or control of water resources submerged lands or navigable waters nor to displace supersede limit or modify any interstate compact or the jurisdiction or responsibility of any legally established joint or common agency of two or more states or of two or more states and the Federal Government nor to limit the authority of Congress to authorize and fund projects 312 0 NOAA has an obligation to conduct continuing reviews 0 May suspend payment of grants under certain conditions 0 May withdraw approval of the CMP 0 In fiscal year 2012 OCRM will distribute over 65 million to state coastal programs 0 Matched by 52 million from state amp local 0 More funding for other initiatives in the coastal zone Created in the 1999 CZMA reauthorization Sec 6217 Joint effort by NOAA National Oceanic and Atmospheric Administration and EPA Ensures that all coastal states participating in the Coastal Zone Management Program have the necessary tools to prevent and control polluted runoff Requires states to implement a suite of management measures to address and prevent coastal nonpoint pollution 6 main sources of nonpoint pollution to be controlled agriculture forestry urban area marinas wetlands treatment systems Examples of land use practices meant to reduce pollution according to NOAA avoiding development of erosion prone areas limiting hard surfaces such as pavement and decking Also in 1999 amendments section 999 of CZMA States have to review their program every 5 years to identify needs and opportunities for improvement and enhancement NOAA encourages strategies to enhance state s programs within nine key areas of national significance 35 Wetlands Public Access Coastal Hazards Cumulative and Secondary Impacts of Development Special Area Management Plan OceanGreat Lakes Resources Energy and Government Facility Siting Marine Debris and Aquaculture cal 1978 one judge believed CZMA to be so complex as to make it almost wholly unmanageable Thinks there is a problem between the private sector public sector federal bureaucracy state legislature state bureaucracy and all admin Agencies just too many people Dist Cal 1988 Ds are the owners of riparian lands bordering the river They obstructed navigation and fishing by the public by the erection and maintenance of booms fences and low bridges across the river and by the construction of fences to prevent access to the river P sued for public nuisance Injunction was issued against Ds because they were interfering with the free use by the public of a portion of Fall River if the stream is navigable then a public right of navigation exists and any obstruction is a public nuisance If it is not navigable then the owners of the property have the right to obstruct it and use the river and banks and beds as they please Ds claim the test of navigability is whether the stream can be used for a useful commercial purpose Ps argue that the test is instead whether the stream is capable of boating for pleasure o The original definition of navigability in the US comes from Wright v Seymour 1886 if waters were navigable in fact they were navigable in law and originally navigability was defined as a stream susceptible to the useful commercial purpose of carrying the products of the country 0 However the modern rule is that a navigable stream may be used by the public for boating swimming fishing hunting and all recreational purposes Lamprey v State 1893 CZMA issues NOAA wanted CA to submit approval guidelines CA refused so NOAA withheld federal funds Can NOAA coerce a CMP modification through conditions on 0 Under 16 USC 1458 a NOAA has continuing review of the CMP c NOAA can reduce if the state does not reach its objectives or make progress and d NOAA can withdraw their approval of the CMP O The court held however that NOAA cannot simply withdraw their approval of a program unless they go through the notice and hearing procedure in e 36 0 Basically NOAA cannot use funding as a gun to the head May not use power over funding to accomplish indirectly what it may not accomplish directly enforce alteration of the approved program itself CZMA legislative history in favor the intent of this legislation is to enhance state authority by encouraging and assisting the state PostMack Amendments to CZMA gt gt 16 USC 1458c 2 financial assistance may not be suspended 1 unless the secretary provides the governor of the coastal state with a written specifications and a schedule for the actions that should be taken by the state in order that such suspension of financial assistance may be withdrawn and b written specifications stating how those funds from the suspended financial assistance shall be expended by the coastal state to take the actions referred to in a NOAA can condition on CMP Implementation Better guidance greater predictability 9th Circ 2002 OCSLA governs 0ampG offshore leases SC had previously held that the lease sale stage did not need federal consistency and did not directly affect the coastal zone Sec Int v Calif 1984 However CZMA amended to reverse this The feds refused to submit the suspensions to the state for review CA sued to enjoin 36 offshore oil suspensions until they had a chance to review them Held favor of CA Consistency Review under CZMA section 1456c1 provides for review of federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone 0 US argued this would be duplicative of other consistency reviews and development and production plans for the oil companies Appeals disagreed and enjoined the lease suspensions pending consistency review Court also evaluated CZMA section 1456c3 which provides for consistency review of applicants for permits that allow activity affecting the coastal zone The two provisions are mutually exclusive so the lease is more of a suspension than a sale 0 US argued that the suspension did not fall into an exception to the categorical exclusion because it did not individually or cumulatively have a significant effect on the human environment Court applied the standard of review under the APA arbitrary and capricious an abuse of discretion or otherwise not in accordance with the law RESULT suspension should be reviewed under the federal activity provision of CZMA 1456cl 3 7 DC 2006 pipeline segment crossed the Hudson River in the NY Coastal zone Applied for FERC license federal energy regulatory commission and submitted a consistency certification Applicant argued that because NY did not act within 6 months it was presumed to be approved NY found the plan to be inconsistent with their CMP and objected because alternative routes were available Millennium appealed to NCAA and NCAA upheld NY s objection NOAA s final decision was appealed under the APA arbitrary and capricious standard Applicant did submit information but they had to supplement information so the response period for the state does not begin until they have received ALL the information 15 CFR 93060al NOAA was awarded Chevron deference because the statute was silent on tolling The 6 month extension was an agreement between the two parties and therefore okay National Security The Secretary must override state objections if the project is necessary in the interests of national security NOAA regs define national security In this case it did not apply 9th Circ 2004 City of Sausalito had standing to challenge the National Park Service s plan for development and rehabilitation of nearby former military base under the CZMA Held that CZMA was violated because the building was inconsistent with California s goal Fort Baker part of Golden Gate National Recreational Area NPS management plan for future development EIS Restore enhance and improve Conference center parking open yacht club to public restore the beach improve habitat all good federal projects on the land with federal money just in California State and private citizens have to ask for a permit under California coast provision but federal gov does not They just have to go through federal consistency review Article III Standing Injury has to be concrete amp particularize actual or imminent Traceable to definite action procedural injury procedures not followed were meant to protect concrete interests Redressability through court decision 0 What is the city s injury Traffic noise disturbance to cope with increased visitors loss in tax S as the city is less desirable in declaration Good enough for Article III standing What about prudential standing Slightly different evolving standing doctrine ask if this P that s filing is the right P to file it separate from whether they ve been injured Is this P the right P Have they been granted a right to sue under the statues 38 0 APA any person adversely affected or aggrieved by agency action within the meaning of the relevant statute 0 Zone of Interest Test lower court federal consistency is a determination by the state not a city Just because the state makes the decision does not mean that others cannot challenge it otherwise there would be no effective review This goes along with the policy of the CZMA to encourage coordination of federal state and local agencies 0 Court held that CZMA was violated the plan was not consistent to the maximum extent practicable with the CMP O CMP limited commercial use of Fort Baker to only for visitor convenience or incidental to park use NPS wanted conference center to bring in to save the natural and historic park resources State based consistency determination on this lack of NPS funding 0 Today they made an agreement and created the conference center also the location of Star eet Puerto Rico is a coastal state for the purposes of CZMA During WWII the US purchased 23 of the island They used it for live fire air and navy exercises so they bombed the crap out of the part of the island that wasn t inhabited Protests ensued and in 1999 David Sarnes protester was killed by a bomb Also used civil disobedience as fishing boats blocked the navy exerc1ses 0 Federal Consistency Puerto Rico planning board had an approved CMP since 1978 The planning board objected to consistency determination by the Navy The Navy argued that the objection was not properly done ie not based on a CMP enforceable policies and anyway they were consistent 0 The Mayor had was the only person deemed to have standing prudential and zone of interests test Environmental harms zone of interests regulated by the CZMA includes the state s protection of their coastal zones and not the individual s attempt to seek further protection once the CZMA requirements have been complied with 0 The base did eventually close and it is now run by fish and wildlife service as a wildlife reserve but the east end is still horribly contaminated Dist Puerto Rico 2002 P s seeking preliminary and permanent injunctions under Commonwealth of Puerto Rico to stop naval training and activities on the island of Vieques Court held there was no waiver of sovereign immunity so no subject matter jurisdiction to hear the case And CZMA did not provide a direct cause of action and P lacked standing Limitations on State Veto Power 39 O The state must demonstrate that federal action is incompatible with CMP s enforceable policies ie legally binding 0 Federal agency compliance is limited to federal agency power to the maximum extent practicable 0 President has the paramount interest of the US 0 Any OCS objections can be overridden by the Secretary on the grounds of national security What about interstate consistency Federal action has to be consistent with a state program and states have to be consistent with their own program What happens when a neighboring state does something that affects your coastal zone that needs a federal license needed water via a pipeline from an interstate lake Pipeline needed FERC approval North Carolina objected City appealed to secretary Secretary upheld interstate review But ended up overruling it because it was in the national interest to send water to Virginia Beach and no reasonable alternative existed 0 930150 objectives a A federal activity may affect coastal uses or resources of a state other than the state in which the activity will occur Effective coastal management is fostered by ensuring that activities having such reasonably foreseeable interstate coastal effects are conducted consistent with the enforceable policies of the management Drogram of each affected state 0 930152 application b Federal consistency is a requirement on federal actions affecting any coastal use or resource of a State with a federallyapproved management program regardless of the activities locations including States without a federally approved management program 0 CMP CHANGE State must list locations in other states of federal activities or licenses they intend to review and demonstrate the effects on their coastal zone 39 So if you want to object to activities in other states you ve got to put it in your coastal management program CMP Must list areas in other states in which you are limited to assert review Program means to limit it make it more difficult for states to complain about each other The program change above is a prerequisite to objections CZMA Process and Procedure CZMA was enacted after finding the need to improve management of the nation s coastal zones It encourages states to exercise their full authority over land and water in their coastal zones by offering the state s financial and technical assistance to develop coastal zonelandandwateruse programs A state can avail itself of the 40 Act s opportunities by developing a management program approved by the Secretary of Commerce 14541455 Before approving a state s management program the Secretary must find the state s program was developed and adopted in accordance with Act requirements 1455 d1 The Secretary must find the program contains Act required elements including inter alia a planning process for energy facilities likely to be located in or which may significantly affect the coastal zone including a process for anticipating the management of the impacts resulting from such facilities 1455d2H The Secretary may make financial grants to a coastal state only if the Secretary finds the state has created a management program that meets Act requirements 1455ab A requirement for entry into this federalstate partnership is that a state acting through its chosen agency or agencies has authority for the management of the state s coastal zone in accordance with its management program 1455d10 15 CFR 9234144 2008 The management program must include provisions to ensure appropriate protection of significant resources such as wetlands 15 CFR 9233b Specifically the state program must include a planning process for energy facilities located in or which may significantly affect the state s coastal zone 16 USC 1455d2H Energy facilities include electric generating plants A state may use any of three techniques to control land and water uses in its coastal zone 1 State establishment of criteria and standards for local implementation 2 Direct state land and wateruse planning and regulation or 3 State administrative review for consistency with the state s management program of all projects proposed by entities including private developers with power to approve or disapprove after public notice and opportunity for hearing 1455d11AC The state program must provide for public participation in permitting processes consistency review and other similar decisions 1455 d14 For energy facilities a state s program must provide procedures for assessing the suitability of sites and identification of how interested and affected parties will be involved in the planning process 15 CFR 92313ad Texas started passing some laws to implement and start the process in the early 90s Passed law to instruct people to work on Coastal Management Program Approved in 9697 Texas implemented it by choosing the networked agency approach to CZMA Texas Coordination Act of the 90s set up a coastal coordination council which was going to run the program But in 2011 this statute was amended and the council then became an advisory committee got really demoted Powers then moved to the Land Commissioner GLO Council Rules 41 0 CCC coastal coordination council first established rules in 1994 was highly controversial because Texans objected to another layer of bureaucratic review 0 1995 Legislature stepped in and amended CCA to curtail CCC authority CCC may not review unless So CCC published new rules Texas does not like tons of agency review Then the commissioner came in and was given the powers CCC used to have Commissioner Authority Land Commissioner authority does NOT have veto power over networked agency consistency determinations Complicated appeals process Tight deadlines 26 days 0 33206a an action is consistent unless the commissioner says it s not 0 Referred back to agency for reconsideration with report 21 days for agency to respond 33206b 0 Commissioner then must refer to Attorney General who has 26 days to issue an opinion 33206c Who has the final decision 0 Complaints have NEVER gotten all the way to the Texas Attorney General It is a complicated appeals process which could be seen as trying to limit the claims 332050 made the commissioner and coastal council do a review of all state agency rules that could impact the coastal zone They had to make sure there were no inconsistencies with what Texas told the Feds they would do in their coastal plan Also they had to create a list in 332053 of all of the agencies in Texas that could possibly authorize something that could affect the coastal zone and identify the particular things that agency might do which would need an individual consistency determinationreview WD Texas 2009 court granted motion to dismiss because they found that Coastal Habitat Alliance lacked standing to bring its claims against D Ds are building wind energy generation facilities in Texas on land adjoining laguna madre P is an alliance of area ranchers and organizations dedicated to protecting laguna madre and its associated environmental resources 0 Texas proposed a coastal management program which provides a framework for ensuring that new electric generating facilities do not harm the environment Adverse effects include alterations that harm the coastal zone as a habitat for terrestrial and aquatic life that disrupt wildlife corridors or fish or migratory bird routes and that alter water in ways that are harmful to terrestrial or aquatic life Texas prioritizes developing sites that will cause the least environmental damage 0 P argues that Texas lacked unilateral authority to eliminate consistency review they should have engaged in the statutorily prescribed process and for making the change 42 which would have involved public participation Ps seeked declaration that Ds may not build the wind farms before consistency review is conducted pursuant to CZMA 0 Do the Ps have standing to bring their claims NO 0 At the pleading stage of proceedings the plaintiff need only make general factual allegations of injury caused by defendants 0 The familiar irreducible constitutional minimum of standing requires 1 that the plaintiff have suffered an injury in fact that is an actual or imminent invasion of a concrete and particularized legally protected interest 2 There must be a causal connection between the plaintiff s complainedof injury and the defendants actions 3 It must be likely that the plaintiff s injury will be redressed by a favorable decision from the court 0 To seek injunctive relief a plaintiff must also allege defendants will cause it future injury and that the relief sought will redress such injury Further an organization must demonstrate associational standing An organization has standing to bring suit on its members behalf when its members would otherwise have standing it seeks to protect interests germane to the organization s purpose and neither the claims asserted nor relief sought requires participation in the lawsuit by individual members of the organization 0 Possible environmental harm from wind farms and deprivation of consistency review are not suf ciently concrete or particularized injuries Also the court claims that redress with not give the Ps the relief they seek and redress their injuries I It is not particularized because it must affect a plaintiff s members in a direct and individual way CZMA does not create a private right of action so the court would have to rule that there was an implied right of such action and that congress intended that result TCEQ Original Petition Ps arguing that certification of compliance with 401 of CWA by TCEQ for a Corps of Engineers permits for a development on Galveston Island was incorrect Proposed permit would facilitate construction of a bulkheaded canal home development Spanish Grant subdivision new development gets a 404 CWA permit from the Corps Must get the 401 certification on water quality from TCEQ The 401 review by the state it when they also do the federal consistency review In this case the TCEQ cited old rules that were renumbered Hard to tell whether the letters were after determination after review or whether they were automatic acceptance 43 and standard form letter There was no finding of fact or conclusions of law There was no consistency review at all Texas CZMA Background Under CZMA Texas chose not to adopt a comprehensive permitting scheme but rather uses the net of existing permit reviews to capture various land and water uses and caused those projects to be reviewed for consistency with the goals and policies of the Texas Costal program Texas Coastal Coordination Council is the state agency with oversight responsibility for coastal management planning Ps argue the Ds failed because there was no certification of compliance the decision by TCEQ was arbitrary and capricious and there was no review of secondary or cumulative impacts The Texas Approach s Three Aspects 1 Texas CMP program aims for federal consistency It has to be reviewed by someone to make sure that it is consistent There is not a requirement that every federal action has to be reviewed a When a federal agency issues a permit sometimes they have to do it in collaboration with state agencies like CWA 404 permitting You go to Corps of Engineers and get the permit and then they have to get a certification from the state agency under the CWA 401 So why not have them do the state consistency review at the same time Texas looked into this and tries to do federal reviews when they do state reviews b EX Nuclear Regulatory Commission NRC wants a permit Federal consistency review must be done and submitted to land commissioner for approval So here the state agency could not do the federal consistency review 2 Then the CMP also has goals and policies to other fundamental things see below 3 The other aspect is to make sure the state itself is consistent How do you ensure through the CMP that the feds and the states are consistent With states you have a whole bunch of agencies who do a lot of things like TCEQ RRC PUC a 332053 There is a list of the types of actions that all the state agencies might take in the coastal zone Not all of these agencies and actions will have an effect on the coastal zone even though they take place in the coastal zone There is a threshold of consistency Method to Ensure State Consistency 0 332051 review agency rules to ensure that they are consistent CCC already found most rules were consistent Review of state agency actions that exceed applicable thresholds 0 332053 lists the thresholds 44 0 Example public utilities commission is a networked agency they regulate phone gas electric they issue CCNs 332053b PUC shall comply with CMP when issuing a CNN 0 CMP policies of EGUs and transmission lines found in 31 TAC 50116 PUC shall comply with CMP when issuing rules and CCNs for EGU and transmission lines in the coastal zone Previously developed sites avoid critical areas look for least adverse effects practicable on areas used for spawning nesting and seasonal migrations The goals of the Texas CMP are enumerated in CCC rule 31 TAC 6 50112 The goals applicable to the Proiect arezii gt to protect preserve restore and enhance the diversity quality quantity functions and values of coastal natural resource areas CNRAs gt to ensure sound management of all coastal resources by allowing for compatible economic development and multiple human uses of the coastal zone gt to minimize loss of human life and property due to the impairment and loss of protective features of CNRAs gt to balance the benefits from economic development and multiple human uses of the coastal zone the benefits from protecting preserving restoring and enhancing CNRAs the benefits from minimizing loss of human life and property and the benefits from public access to and enjoyment of the coastal zone gt to make coastal management processes visible coherent accessible and accountable to the people of Texas by providing for public participation in the ongoing development and implementation of the Texas CMP makes agencies and subdivision consider cumulative and secondary adverse impacts of their actions to the greatest extent practicable as described in the federal environmental impact assessment process of each major action relating to the activity So if they ve done dredging before they have to consider that when doing dredging now c No agency or subdivision shall take a major action that is inconsistent with the goals and policies of this chapter one example when TCEQ issues an air permit if that permit complies with the standards of the federal clean air act then it is consistent with the Texas CMP Basically you don t need to do another layer of review Wind Power environmental groups really wanted wind power while they fought the coal plants Hard for them to alter this position Is wind power always good anywhere The order was composed to make sure they were complying with policies 45 0 Instead of TCEQ citing the wrong rule the PUC public utilities commission went through everything you would expect to find and pointed to specific new rules They went through every requirement in 50116 and explained why PUC could make a finding based on the application and the evidence about why the new transmission line in the coastal zone was consistent with the Texas Coastal Management Program 0 Texas wind power no Texas or federal permit required for wind power facility the turbines Permit are required from PUC for the transmission line to connect to the grid Only landowners can participate and clients were denied standing in Kenedy because they don t own the land under the line Without the lines the turbines won t be built Any other permits required ESA CWA Look to later section on wind turbines for permitting O Kenedy County private 400000 acre ranch owned by the Kenedy Foundation wetland and endangered species major migratory bird pathway the last great undisturbed habitat in Texas in the coastal zone But they could put a lot of wind turbine on this land and earn a lot of money from it 0 There is a rush to get the tax credit set to end 2008 Lobby against state or federal siting regulations and permit requirements Companies were claiming that they would avoid wetlands not harm endangered species and they would switch off the blades during the migration dropout when the birds would drop down out of the sky towards the coast In short they were just wanting land owners to trust them 0 Wind turbines are hundreds of feet tall and pay landowners 500 apiece Wind farms are a major disturbance They also can hit birds as they migrate The Longbilled curlew has a US population of 20000 46 of them could be killed by one turbine every year There are 500 turbines Blade tips spin 180 mph Approach 0 Trigger state agency review secondary impact of transmission line as EGU in the coastal zone 0 Trigger federal agency review migratory birds wetlands and endangered species Coastal Natural Resource Area which include coastal wetlands Policy for the construction of electric generating and transmission facilities have to be constructed at sites selected to have the least adverse effect practicable on recreational uses of CNRAs Also have to be constructed at sites selected to have the least adverse effects practicable on areas used for seasonal migrations of terrestrial and wildlife species 46 Under TNRC Texas Natural Resources Code 33203 CNRAs include coastal barriers coastal historic areas coastal preserves coastal shore areas coastal wetlands critical dune areas critical erosion area gulf beaches hard substrate reefs oyster reefs submerged land special hazard areas submerged aquatic vegetation tidal sand or mud ats water in the open Gulf of Mexico and water under tidal in uence Texas Coastal Management Program really not that bad comparatively But when you choose to go with the network agencv approach it gets complicated and has ramifications up the chain which can eliminate what was intended to be a method for reviewing state consistency with its own state management program Current Florida outlawed the terminology climate changesea level rise by state employees Did environmental laws fail New Orleans How we implement env laws that prevent us from figuring out how to avoid things like Katrina horrible ooding NOLA built underwater and needs enormous ood protections to keep it dry constant water seeping in even though there are pumps constantly pumping shallow ground water out which after time actually causes more subsidence In NOLA many shipping channels would go through the wetlands and manmade channels This was a major cause of ooding as Katrina consisted of wind and water There is a mound massive hill and wide of water created by the low pressure of a hurricane which when it comes ashore becomes the storm surge The storm surge is not water pushed by wind it is elevated water cause of the low pressure system above it Channels had been cut into the wetlands mostly for oil and gas or boat access Consequently what used to be very fine wetlands in front of NOLA have been degraded by human activity The wetland being sliced and diced causes the intrusion of salt water which kills the freshwater vegetation which makes the wetlands fall apart Since then they have just poured concrete all over the place IHNC Barrier is large pilings driven to 150 ft support pilings to 300 ft It is 2 miles long with 3 gates lift gates and attaching arm for barge gate shown The Netherlands also does this on large scales because practically the whole country is like NOLA Post Katrina storm risk reduction system a 133 mile parameter of levees ood walls gated barriers and massive pump stations Total cost of 145 billion The system was started in 2008 Professor Houck s Basic Argument 0 What is the purpose of environmental law To anticipate prevent and mitigate 47 O NEPA CWA CZMA ood insurance all failed because none were allowed to succeed Intended to try to make you think about the future and potential fall out 0 Worst case scenarios I NEPA look before you leap precautionary statute I CEQ regulations on incomplete or unavailable info I Applied to low probabilityhigh impact situations Like someone hijacking a plane and ying it into a nuclear power plant I SCOTUS decided that NEPA did not require the worst case analysis only a reasonable predictable analysis of events in the future So when they were designing the levees they designed them to withstand a pretty powerful hurricane high levels of water and wind I Corps only looked at category 3 hurricanes before Katrina When looking at the fall out they also looked to 3 Katrina was a category 5 I Regardless of the corps emergency planners in NOLA now look at Category 0 storms for the purposes of ooding Meaning even a category 0 storm triggers emergency planning and action in NOLA 0 Changed circumstances area was a little lower because of subsidence there were voids between the earth and levees due to type of soil there were fewer wetlands in front of the levees and changing sea level rise Corps were aware of these differences but never integrated the changes into NEPAs thinking Never went back in and reevaluated things after the original plan 0 Louisiana parishes sued oil and gas companies even though they had permits Corps and EPA oversight they only denied 5 of 5000 CWA 404 permits They were asking for the companies to spend a lot of money to restore the wetlands It s not all the companies faults because some of the damage was due to sea level rise Oil and gas companies were not required to restore the wetlands that they left even though there was a restoration clause in their contracts They just left the facilities and stuff there 0 Why did none of the acts or policies work I CZMA deference shielded LA and TX There was weak funding weak legal requirements and low political support I Flood insurance subsidized ood insurance given in exchange for local ordinances to regulate unwise development in ood prone area Required elevation of new building in 100 year ood plain Gaming and cheating of the system though encouraging people to build in harm s way Private 48 insurers wouldn t take this risk but the federal government is letting people do it Consequences are huge billion dollar disasters 134 billion Katrina 68 billion Sandy 27 billion Ike 17 billion Rita 0 Texas has had over 68 billion dollar weather disasters in the last 30 years or so Understanding the threats of coastal hazards Study in Harris County looked to consequences of losing wetlands The more wetland permits they gave the less ood mitigation potential we had Less rain but more ood damage and cost because the wetland could not retain as much water Consequences of wetland alteration alteration of naturally occurring wetlands is the most important environmental indicator of ooding and ood damages inside 100 year oodplain large development projects cumulative impacts from small scale wetland alteration Wetlands reduce property loss for high damage oods more so than dams and nonstructural mitigation activities 0 Evidence shows that the more permits are givenallowed the more property damage and loss occurs even with less rainfall Sometimes there are hazards we don t expect no wind and no rain but beginnings of the storm surge wall of water coming ashore 18 hours before the hurricane the strand in Galveston was already being ooded Blue water highway surfside to Galveston island what happens when a hurricane comes in and wipes out coastal infrastructure Do you rebuild it bigger and better or abandon it This highway they rebuilt because it was a popular area As a policy maker or a lawyer how do you think about this kind of stuff laying another road as opposed to people having to drive different routes Quick fix required only one option only way to get things across 0 What about rebuilding houses on coastal barrier islands like Dauphin Island Galveston Island or Bolivar Peninsula Does the government have to buy people out in order to get them to stop from building there Is it a good use of tax payer money for FEMA to pay people after their homes were ooded 20 times to rebuild FEMA changed their policy that if you were ooded out a particular number of times FEMA will just buy you out Houston also has ooding zoned ordinances How many times do you have to get hit by a hurricane before you change what you allow people to build on the coast Most local public elected officials do not want to tell people that they can t rebuild their homes Notion of planning for hurricanes was really emphasized after ivan ike rita Especially whenever people were trying to ee the city after Katrina not enough room on the freeways for people There are now staged evacuation zones those in Houston can t get 49 on the freeways two days before the storm hits so that the people farther to the coast get to leave earlier 0 The greenhouse effect relationship and correlation between global temperatures and carbon dioxide Chemical explanation not a mystery Works the same as a greenhouse keeps things trapped and warmed C02 is rising higher than it s been in the past 400000 years Some theories about why C02 is going up burning of fossil fuels We need it for our economy and day to day life but there are consequences They measure carbon dioxide at the top of mountainvolcano Mauna Loa at an observatory which just keeps going up 0 There are a lot of ways to measure the temperature of the planet but whichever way you do it it keeps going up Not because all the measures are in the city surrounded by concrete When you look at changes in solar activity and changes in the strength of the sun that does count but you can factor it out to simply look at temperature There are also times when the temperature goes down 0 Where is global warming going 934 absorption by the ocean Warming causes more active hurricanes and storms Others impacted are atmosphere continents glaciers and ice caps arctic sea ice Greenland ice sheet and Antarctic ice sheet Also when you warm up oceans you can change the currents The Gulf Stream warms Great Britain in the movie the day after tomorrow they were considering what would happen in the Gulf Stream stoppedchanged Oceans drive the food chains and impacts what makes certain areas inhabitable and livable 0 Observed Effects Snow cover has decreased in most regions especially in spring and summer Specially ice sheets glaciers and caps All the arctic sea ice can melt and not change sea levels Sea ice in the Antarctic is increasing but that is because all the land ice in Antarctica is slipping into the sea which creates more sea ice Huge rivers now running through Greenland and ending in crevices Melting water is now going underneath ice and creating a slip and slide for the sheet to fall off sheet is slipping lower and lower as its mass decreases Everywhere in America sea levels are rising 0 Possible consequences of climate change in Houston precipitation and temperature possible dengue fever sea level rise hurricanes and storms coastal currents fisheries and seafood production public health increased erosion 0 Wind speed of hurricane depends on temperature difference between sea surface and tropopause 0 Fisheries also respond to all these changes imagine all the hatcheries of shrimp and fish in the wetlands around Galveston bay As sea levels rise the wetlands become more submerged Sometimes the wetland can no longer migrate inwards say for instance if 50 there are houses or roads there Then you lose the wetland and the fishery that used to grow there Gulf yields 1 million tons of fish and shellfish per year worth 758 million at dockside focuses on anticipating the effects of climate change and taking steps to minimize the harm or maximize the benefits Mitigate attempts to limit greenhouse gas emissions to minimize future climate change Adaption steps 0 0 Assess the likely effects of climate change to an area Identify the most vulnerable systems 0 Exposure 0 Sensitivity Adaptive capacity Involve all stakeholders Prioritize responses based on likely or observed effects Muddling through Adaption by retreat road just stops when it can t go any further Measures of Adaption extended by EPA have included restoring natural storm buffers rethinking coastal habitat restoration plans modifying building codes to make sure they are prepared to withstand higher water levels building or repairing dikes seawalls and other structures increasing setbacks distance required between the shore and the building upgrading hard structures like bridges roads and storm water systems and mapping coastal hazards to make sure we have efficient emergency response plans Coasts do you reinforce or retreat Adaptive Management use the natural resources of the coast to provide ecosystem services Place a value system on ecosystem services Set up marketplace Driven by insurance market but not federal ood insurance Proposal Ike Dike was proposed to take the engineering view Galveston sea wall protected Galveston for 100 years so let s just build it bigger and extend it along the coast all along Galveston and Bolivar close gates and seal off certain passes where ooding could happen HUGE project never managed to come up with an estimate of how much this is going to cost But when you ask the practical questions where would you get all the material to build it 51 I Alternative ideas for the Texas coast trying to set aside undeveloped areas that ood all the time so people can t end up building there Or HGAPS Houston Galveston area protection system Originated with the enactment of the of 1969 There is no standard for judicial review in this Act therefore every act brought under NEPA has to be claimed under APA Admin Proc Act NEPA was signed into law by Nixon one of the first environmental laws applies to every single environmental agency created the council on environmental quality 0 The purposes of this chapter are To declare a national policy which will encourage productive and enjoyable harmony between man and his environment to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man to enrich the understanding of the ecological systems and natural resources important to the Nation and to establish a Council on Environmental Quality 0 Requires all federal agencies to prepare an environmental impact statement EIS under statute 1022c O 1022e Also requires all federal agencies to study alternatives to action involving unresolved resource con icts NEPA QUESTIONS 0 When does it apply 0 What time 0 What kind of action significance 0 What effects must be considered Scope 0 Is the EIS or EA adequate All responsible officials of all agencies must prepare a detailed statement covering the impact of particular actions on the environment the environmental costs that might be avoided and alternative measures which might alter the cost benefit equation 0 NEPA requirements are not discretionary 0 NEPA requires that the agency considers the environmental impact of their actions to the fullest extent possible 52 Substantive Obligations of NEPA Strycker s Bay Neighborhood Council Inc v Karlen ISSUE Is the D after considering the consequences able to reject the alternative even though it s environmentally preferable solely on the grounds that doing so would cause delay Yes 0 NEPA requires D to consider the environmental consequences of its decision to redesignate the proposed site for lowincome housing but nothing more NEPA applies both to proposals for legislation and to proposals for other major Federal actions 0 has rarely been performed 0 Clinton announces environmental reviews must be performed for future trade agreements after Bush didn t do one for NAFTA agreement The focus of the review not an EIS generally will be the impacts in the US through global and transboundary impacts that can be examined when appropriate and prudent o can include Any action potentially subject to federal control or responsibility 40 CFR 150818 0 It is not confined to projects that the federal government is funding or carrying out Can also include private projects that require federal approval as well as federal programs policies and rules 0 Small federal handle When federal government has a small role in a large private activity the review is usually limited to the smaller area Problems of Timing and Scope issue was when an agency has to do NEPA documentation before they did individualregional EIS 0 Issue Sierra Club argued that the Dept of Interior could not allow further development of federal coal reserves in a fourstate area of the Northern Great Plains without preparing a comprehensive EIS of the entire region Interior had conducted 3 studies and a national EIS for throughout the country 0 Scope Court rules they do not have to conduct an EIS for the region based on NEPA 1022c An EIS only has to be done in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment 0 In this case petitioner s proposals are for actions either local or national in scope But there is no evidence of an action or a proposal for an action of regional scope 53 0 Timing the moment at which an agency must have a final statement ready is the time at which it makes a recommendation or report on a proposal for federal action Emergency Circumstances CEQ s regulations direct that when emergency circumstances make it necessary to take an action with significant environmental impact without observing the provision of these regulations the Federal agency taking the action should consult with the Council about alternative arrangements Only actions necessary to control the immediate impacts of the emergency can be exempted from NEPA review Court has stated Alito that an injunction should be issued to stop action arising for which an EIS has not been prepared only if the traditional four factor test is satisfied 1 Irreparable harm 2 Inadequate remedies at law 3 Balance of harm favors plaintiff 4 and injunction would not be contrary to public interest Scope and Types of Actions forest service planned construction of gravel road to service timber harvesting area They concluded there would be no significant effects so they didn t need to do an EIS The timber sales also did not have an EIS done Suit brought to enjoin construction of the road 0 Issue Whether the road and timber sales are sufficiently related so as to require combined treatment in a single EIS that covers the cumulative effects of the road and sales YES 0 are to be considered together in a single EIS They are defined as actions that i automatically trigger other actions which may require environmental impact statements ii cannot or will not proceed unless other actions are taken previously or simultaneously iii are interdependent parts of a larger action and depend on the larger action for their justification O This case meets the second and third and perhaps the first criteria Timber sales cannot proceed without the building of the road Therefore they are connected actions 0 are to be considered together in a single EIS They are defined as actions which when viewed with other proposed actions have cumulatively significant impacts 0 Lack of an overall effort to document cumulative impacts could have present and future detrimental effects Court rules that these comments are sufficient to raise substantial questions as to whether the road and timber sales will have a significant cumulative environmental effect 54 0 Timing NEPA process must be integrated with agency planning at the earliest possible time 40 CPR 15012 The consideration of cumulative impacts will serve little purpose if the road has already been built This would create an irrational result Trout Unlimited v Marion The cumulative env impact must be assessed before the road is approved Sierra Club challenged the decision by the Forest Service to issue oil and gas leases on land They allege it violates NEPA because no EIS was prepared prior to the action 0 Sierra Club is seeking judgment only for the land without an NSO Stipulation no surface occupancy which is for land designated as highly environmentally sensitive The NSO stipulation precludes surface occupancy unless and until such activity is specifically approved 0 Cases in this circuit have employed a fourpart test to scrutinize an agency s finding of 1 Whether the agency took a hard look at the problem 2 Whether the agency identified the relevant areas of environmental concern 3 As to the problems studied and identified whether the agency made a convincing case that the impact was significant and 4 If there was an impact of true significance whether the agency convincingly established that changes in the project sufficiently reduced it to a minimum 0 In this case the agency did take a hard look but the finding that no significant impact would occur as a result of granting the leases without an NSO stipulation is not supportable on the record Therefore for all land they choose not to preclude an EIS assessing the full environmental consequences of leasing must be prepared Si nificantl Affectin the Quality of the Human Environment 0 This is the crucial threshold question for NEPA s EIS requirements whether a proposed action is likely to significantly affect the quality of the human environment 0 Significantly is assessed in context and based on intensity 0 Affecting includes effects on the environment and ecosystems and on aesthetic historic cultural economic social and health 0 Encompasses direct effects indirect effects and cumulative effects 0 Action should physically affect the environment 0 If enforceable effects can be mitigated to avoid an EIS 55 0 whether an EIS had to be prepared for the construction of a jail and related facilities as an annex to the federal courthouse in Manhattan 0 When deciding whether a major federal action will significantly affect the quality of the human environment the agency in charge should normally be required to review the proposed action in light of at least two relevant factors 1 The extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it and 2 The absolute quantitative adverse environmental effects of the action itself including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area 0 Before a preliminary or threshold determination of significance is made the responsible agency must give notice to the public of the proposed major federal action and an opportunity to submit relevant facts which might bear upon the agency s threshold decision 0 The precise procedural steps to be adopted are better left to agencies deferential Procedure for Determining Whether or Not to Prepare an EIS Agencies must affirmatively develop a reviewable environmental record to support determinations that their actions would not significantly affect the quality of the human environment This reviewable environmental record has become what is now called an What is an Environmental Assessment EA Individual determination whether proposed action will significantly affect human environment may lead to EIS or Finding of No Significant Impact FONSI or a mitigated FONSI 0 Normally short containing description of environmental impacts of proposed action discussion of need for proposal listing of agencies and persons consulted and explanation of why agency believes action will not have a significant effect on environment Limited requirements for public comment of the CEQ regulations directs agencies to determine whether the proposal is one that 1 normally requires an environmental impact statement or 2 normally does not require either an environmental impact statement or an environmental assessment 0 If the proposed action falls in neither of these two categories agencies are directed to prepare an environmental assessment and to make the determination of whether or not to prepare an EIS on the basis of the results of that assessment 56 0 An environmental assessment should include a brief discussions of the need for the proposal of alternatives as required by section 1022E of the environmental impacts of the proposed action and alternative and a listing of agencies and persons consulted O In many cases under this section an agency must study alternatives to the proposed action whether or not it is required to prepare an EIS 0 An environmental assessment serves two purposes 1 It provides the basis for the agency s determination whether to prepare an EIS 2 When the agency concludes that an EIS is not required the environmental assessment is the vehicle for the agency s compliance with NEPA s other requirements 0 Where there is a FONSI a finding of no significant impact a proposed action may be mitigated Such mitigation should be made public and accompanied by monitoring and reporting Determining of Action 0 In its 1978 regulations the CEQ Council on Env Quality made its own attempt to elaborate on how to interpret the term significantly in NEPA 40 CPR 150826 Significantly requires consideration of both context and intensitv 0 Significance of an action must be analyzed in several contexts such as society as a whole human national the affected region the affected interests and the locality Significance varies with the setting of the proposed action 0 Intensity this refers to the severity of impact responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action Standard of Review 0 The court adopted the arbitrary and capricious standard of review for decisions not to prepare a supplemental EIS deferential 0 Courts should not automatically defer to the agency s express reliance on an interest in finality without careful reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance or lack of significance of the new information 0 The court concluded that the agency must take its own hard look at the environmental effects of its action and cannot abdicate its NEPA responsibilities in favor of a regulated party 5 7 What Must be considered NEPA demands consideration of CEQ Regulation defining effects 40 CFR 15088 provides the following explanation 0 Effects and impacts as used in these regulations are synonymous Effects include ecological such as the effects on natural resources and on the components structures and functioning of affected ecosystems aesthetic historic cultural economic social or health whether direct indirect or cumulative Effects may also include those resulting from actions which may have both beneficial and detrimental effects even if on balance the agency believes that the effect will be beneficial Court held that NEPA did not require agencies to evaluate the risk that restart of a nuclear power plant that is a companion to the damaged three mile reactor would harm stchological health of the surrounding community 0 Regardless of the gravity of the harm alleged NEPA does not apply unless the harm has a suf ciently close connection to the physical environment Under NEPA federal agencies must perform an Environmental Impact Study EIS of policies that are likely to have significant environmental effects However if an agency feels that its policies will not have significant effects it may perform a more limited Environmental Assessment EA Is the EIS Each EIS must include a summary an explanation of the purpose of and need for the proposed action a description and comparative assessment of alternatives a description of the environment that will be affected by the action and an analysis of the environmental consequences of the proposal and alternatives Litigation centers on the adequacy of the agency s assessment of alternatives and the scope and detail of its analysis of environmental consequences Alternatives NEPA requires that agencies assess and consider alternatives to proposed actions 1022Ciii and 1022E decision for operation of nuclear power not overturned Court claims a single alleged oversight on a peripheral issue urged by parties who never fully cooperated or indeed raised the issue below must not be made the basis for overturning a decision properly made after an otherwise exhaustive proceeding 0 The term alternatives is not selfdefining The concept of alternatives especially when it comes to energy sources must be bounded by some notion of feasibility 58 0 Common sense teaches us that the detailed statement of alternatives cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man inan EISlook to contents of the EIS 0 EIS did not adequately compile relevant information with respect to impact on fisheries It lacked a substantial basis in fact and did not consider and balance the environmental factors Therefore the decision cannot be seen as reasoned and an injunction was granted SUPPLEMENTAL E18 subject of post decision making supplemental environmental impact statements is not directly addressed in NEPA P s argue that a supplemental needs to be done because it s been almost a decade and there was indication in the original memorandum which stated that there would be greater adverse impacts on the environment than previously thought 0 If there remains major federal action to occur and if the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered a supplemental EIS must be prepared 42 USC Statute 43222C Programmatic EIS Looks at the big picture and the aggregate effect Then you can do little EA s for each small issue EX each houseparty to be effected by environmental impact Tiering there are certain levels of decision look at some impacts in the top level decision and then when they come to the later decision they don t have to return to look at those impacts cause they re already disclosed them What happens if the agency doesn t have complete information what an agency should do when there is uncertainty and they don t know the environmental impacts If they don t know you can t stay silent They have to disclose why they don t know it and the effort you made Otherwise this could lead to willful blindness Does the agency have to look at Kind of nuclear meltdown at a nuclear plant because it is very foreseeable But a SC case says NEPA does not require the agency to get into the worst hypotheticals ever Building levees in New Orleans did not have to look at the worst case didn t consider material failure rate and category 4 hurricanes Sometimes NEPA fails in this way Practical NEPA litigation 1 Start in District Court 2 Based on administrative record so create one during comments 3 Cross Motions for Summary Judgment no facts outside record 59 4 Sometimes can supplement record to show what agency did not consider 5 Preliminary injunctions need expert testimony Even if they violate NEPA you might not get an injunction 6 Permanent injunctions Monsanto v Geertson Seed Farms permanent injunctions are not guaranteed 7 If Plaintiff wins on appeal hope the Supreme Court does not want to take it Most all cases in favor of the agency are overturned by the SC Poor track record What are wetlands They are integral to the ecology of the watershed a habitat and food source they filter and clean water they operate as ood control store carbon and are used by many as recreation There are 2 federal permits for activities taking place in the wetlands 1 33 U SE 403 That the creation of any obstruction not affirmatively authorized by Congress to the navigable capacity of any of the waters of the United States is hereby prohibited section on permits and it shall not be lawful 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 inclosure within the limits of any breakwater or of the channel of any navigable water of the United States unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same 2 The Corps have long been the agency responsible for maintaining rivers and ports CWA based on the Refuse Act and Sec 10 general prohibition any unpermitted discharges of any pollutant are unlawful Administrative civil and criminal enforcement Citizen suit provision of CWA 0 Section 301a the discharge of any pollutant by any person shall be unlawful O 301a functions as a prohibition against violating any portion of the CWA unless you get a permit Illegality of pollutant discharges except in compliance with the law 0 Restrictions on the quantities of pollutants that may be discharged is governed by section 301 60 NPDES permits 0 Permits to discharge pollutants are governed by section 402 s national pollution discharge elimination system NPDES Requires permits for discharge of a pollutant from a point source into navigable waters four elements 40 CPR 1221b Program can be delegated to a state if the state wants to take over the NPDES They submit their program to the EPA and EPA has to approve it so long as it is in compliance Texas has an approved program Individual NPDES Permits required for all municipal treatments plants and major industrial dischargers and certain storm water dischargers Process specific application and permit process to state EPA or tribe It is only good for 5 years The EPA will then look at past grievances or violations of your permit when determining if you get renewed They also look at public comments and EPA reviews state drafts Individual Permit Elements ef uent limits build in best management practices compliance schedules phased monitoring and reporting requirements standard conditions including reopeners POTWs pretreatment and sludge Ef uent limits are number specific Endofpipe standards All permits must apply the source categoryspecific national set technology based limits for certain types of pollutants 40 CFR Part 125 If technologybased insufficient to achieve water quality standards for certain parameters may add water qualitybased limits numeric or narrative May be expressed as daily maximum loads or longer term averages Monitoring and Reporting required can be based on representative samples of data Each permit must specify requirements Made available on ECHO enforcement and compliance history 0 Point Source v NonPoint Source page 61 Dredge and Fill permits 0 Issued by Corps of Engineers or the state if state has approved program TX does not Section 404 requires all dischargers of dredge and fill to the 61 water of the US to obtain a permit from the US Army Corps of Engineers in cooperation with the EPA 0 Requirements of 404a The Secretary of the Army may issue permits after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites does not mention wetlands 0 Section 404 establishes a separate permit program that allows discharges of dredged or fill material into wetlands at sites designated in the permit 0 Includes an environmental assessment EA or EIS NEPA I Both 402 and 404 permits subject to state certification under 401 Permit Process permit applicants must demonstrate that 1 There is no practical alternative to the proposed discharge would be less damaging to the aquatic environment 2 The proposed activity will not cause or contribute to significant degradation of the waters of the US 3 Appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem and 4 The proposed discharge will not violate state water quality standards the ESA or regulations to protect marine sanctuaries under the marine mammal protection act 40 CFR 23010 CWA prohibits unpermitted discharges of pollutants to navigable waters The term is defined in section 50217 2 to mean the waters of the US including the territorial seas ruled that congress intended the Corps jurisdiction to be as broad as the commerce clause allowed Not navigable in fact meaning able to get a boat down the river but navigable in law anything that has a little bit of water on it EPA wanted this broad view of navigable waters as well Corps never appealed and the navigable water definition was extended to wetlands corps of engineers broadened the term navigable waters to include tributaries interstate waters and nonnavigable waters whose use or misuse could affect interstate commerce Also construed it to cover all freshwater wetlands 0 Whether this broadened definition allowed the CWA to require landowners to obtain permits before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries YES Saturation is the test not ooding by navigable waters 62 O The court rules that under Chevron Deference Theory an agency s construction of a statute it is charged with enforcing is entitled to deference if it is 1 reasonable and 2 not in con ict with the expressed intent of Congress So is Corps definition reasonable under the guidance of 404a Yes comes from a broad systemic view of the goal of maintaining and improving water quality Purpose is to protect water quality and adjacent wetlands do that The SC says that navigable waters is broader than just water that is able to be navigated but does not authorize the Land is Water approach Court holds that the waters of the US must be interpreted as only those relatively permanent standing or continuously owing bodies of water forming geographic features that are described in ordinary parlance as streams oceans rivers and lakes This does not include channels 0 Concurrence of Kennedy must have a between the wetland and the navigable water This is now the governing test for whether the CWA 404 permit program will control activities in a particular wetland Goal to protect water quality So as long as the wetland does help to protect water quality then it is in a significant nexus I Significant nexus is not a CWA term It is Dicta from solid waste agency of northern cook case It would not exclude some intermittent streams 39 Scalia A wetland that is adjacent to a navigable water or connected by a continuous surface ow would constitute a significant nexus For Rapanos wetland to be covered under the act it must be found that 1 the adjacent channel contains a water of the US as defined above and 2 that the wetland has a continuous surface connection with that water making it hard to determine where the water ends and the wetland begins I Disagreed with plurality s definition of point source Remanded to Corps for further findings 5 opinions no answers or clear guidance So what is a signi cant nexus It depends ex in Lucas water on big hill acres 9 it drains over the surface in 3 different directions but ends up going west into a bayou and then into a river and then into the gulf of Mexico This was held to be a significant nexus 4th circuit how much water and how often What is significant meant to mean Even if there is a connection it has to be significant Corps then said 30 days a year with 20 cfs specific case is significant Developer then could not appeal again because the corps already deemed it significant 63 Regulatory De nition of 1 All waters which are currently used were used in the past or may be susceptible to use in interstate or foreign commerce including all water which are subject to the ebb and ow of the tide All interstate waters including interstate wetlands All other waters and wetlands the use degradation or destruction of which could affect interstate or foreign commerce All impoundments of water Tributaries of above any that ow into 1 2 3 or 4 doesn t matter if it s a owing tributary or not can be intermittent Also just because it s artificial does not mean it s not one of these things The territorial seas Wetlands adjacent to any US waters above other than waters that are themselves wetlands a How adjacent do you have to be to be considered US waters Not the sufficient nexus test use the adjacency test NEW definition being developed by the EPA 40 CFR 2303 handout regarding the proposed definition of waters of the US under the Clean Water Act Been in the works for about 8 years Once this rule actually passes court will be required to give it Chevron deference 0 Trying to say that adjacent can still mean separated by a small berm Adjacent just means in close proximity Exceptions to waters of the US on the new de nition handout O O 0 Waste treatment systems like lagoons or ponds Prior converted cropland Certain ditches Artificially irrigated land Artificial lakes and ponds artificial re ecting pools or swimming pools ornamental waters Water filled depressions created by construction work QUESTIONS 64 Do I have a wetland If so is it a jurisdictional wetland Do they fall within the jurisdiction of the federal CWA These are those that are regulated by the US Army Corps of Engineers Corps under Section 404 Can I avoid it If not I need a Corps 404 permit 0 Can I minimize the impacts to the wetlandwaters 0 Can I mitigate the loss of the wetland O Wetland Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support and that under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions Wetlands generally include swamps marshes bogs and similar areas 404e authorizes general permits For anyone who for instance wants to build fishing piers in a certain area A nationwide permit is for categories of activities like road building or bridge supports with limited impacts Exemption from the 404 permitting for farming forestry and ranching 404f1 404b1 guidelines for EPA and Corps of engineers to look at no practicable alternative no significant water degradation not violate state WQS minimize adverse impacts on aquatic ecosystem EPA has veto power under 404e but it is rarely used How do you gure out whether you need a 404 permit from the Corps of Engineers Identifying the jurisdictional wetland Look to the regulatory definition of waters of the US those waters that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support and that under normal circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions Wetlands generally include swamps marshes bogs and similar areas 0 This means that the Corps wants you to use three tests 1 Hydrology how often is there water 65 2 Vegetation and 3 Soil These tests are not in the big book of rules regulations they are in guidance documents for the corps of engineers Every few years they are revised Wetlands are delineated using the 1987 Corps Wetlands Delineation Manual Lawyer s Shoes test how do you get a jurisdictional determination It is a fact specific inquiry you have to provide a map to the corps of where you think the wetland is Once you submit this you CANNOT change it You shouldn t lie either because the Corps will come out to your property and make an assessment themselves You can t submit a different one for 5 years Wetland consultants can be a few weeks to several months of study Submit you application package to the corps Maybe wait a few years from approval then start work on the permit applicant and mitigation plan You CANNOT challenge a Jurisdictional Determination in court it s not a final agency action Guidance regarding jurisdictional determination from the US Army Corps of Engineers httpwwwusacearmymilPortals2docscivilworksRGLSrg10802pdf A requirement when you put in a 404 permit request Have to factor in cost of mitigation and have to detail how you would minimize impact gt National policy of the US have no net loss of wetlands bush 1 policy regarding wetlands preservation Goal is to balance wetland loss caused by economic development with reclamation mitigation and restoration so that the total amount of wetlands in the US does not decrease It should either remain constant or increase Government incentivizes preservation and conservation gt Mitigation is required for all 404 permits official corps policy gt CWA protects water quality by regulating dredge and fill of wetlands an ecosystem service Purpose of mitigation is to replace the lost ecosystem services and thereby prevent further degradation of water quality If you plan to cause the loss of 1 wetland then you either have to create a new one preserve another one or increase the productivity and functionality of a wetland 66 gt Mitigation Ratio there are high value wetlands and low value wetlands Different ratios for restoration enhancement and preservation based on how valuable the wetland is that you are effecting Wetlands Mitigation Bank someone goes and finds a piece of property with a lot of wetlands of certain quality and he submits that property to get it approved as a wetland mitigation bank by the corps They will then assign him a certain number of credits which he can advertise to others and people who want to apply for a permit can look him up and try to buy his credits for projects they want to do 5th Circuit 2008 Facts Defendants sold house lots and designed and certified septic systems on wetlands but represented the lots as dry Septic systems on the lots failed causing waste discharges The Government charged the corporate developer and various individuals with Clean Water Act CWA violations mail fraud and conspiracy to commit mail fraud and to violate the CWA A jury found Defendants guilty on all counts Defendants appealed Whether the wetland were waters of the united states and thus under the protection of the Clean Water Act Waters of the US are relatively permanent standing or owing bodies of water Ds claim they were not required to obtain a NPDES permit so they didn t violate CWA section 402 because it unambiguously excludes septic tanks from the definition of treatment works treating domestic sewage 0 Definition of point source and pollutant page 5 O NPDES permitting requirements apply to two types of sources point sources and treatment works treatment works do not include septic systems 0 Court held that evidence submitted at trial was sufficient to support a finding that they were a point source and could be subject to NPDES permitting requirements under CWA Section 1221b1 defines the sources requiring NPDES permits namely point sources that discharge pollutants into US waters Section 1221b2 defines additional sources that must either obtain NPDES permits or fully meet the sewage disposal requirements of 405 of the CWA By exempting individual septic systems from these technical sludge disposal and treatment standards EPA prevented homeowners and other operators of individual septic systems from facing these requirements US DIST 2009 hearing to address the civil penalty assigned to Scruggs after he was held to have violated the CWA 65000 Court upholds this civil penalty D lied and 67 accepts little if any personal responsibility for the violation He did not have a reasonable belief that the violation did not exist D bears the burden of showing that the penalty would be ruinous of otherwise disabling Where a violator cannot show a penalty will have a ruinous effect the economic impact factor under 33 USC 1319 will not reduce the penalty Guy got fined for basically filling 02 ac of wetlands Offats Bayou Corps has their main offices on Galveston Island and drives right by the property every morning and then one morning there is a bulldozer dumping fill material he got caught red handed Factors to be considered when giving fine severity history harm to environment Texas has a whole series of bays up and down the coast Less fresh water in ow 9 loss nutrient input because of loss of salt marsh 9 salinity increases and loss of estuarine productivity Caused by alteration of location of tributaries as well and arid climates Agriculture and water demand in cities leading to impoundments also have impact Crabs grow in the wetlands and then they move to the bays which is where you catch them not in the gulf Crabs and other species depend on this changing salinity Productive ecosystems depend on this seasonal and salinity change Upstream of the bays every single Texas River ows down to the coast eventually so there are lots of reservoirs for water supply All the Texas east reservoirs are full all the ones out west are much lower even down to 23 full Projections show that drought will get worse and water demands will keep increasing Every time you build a reservoir it stops water from escaping down river We need more reservoirs to conserve water they stopped building them as much in the 90 s Health restoration sued EPA to try to get them to deal with the gulf dead zone Related to phosphates and nitrates coming off the Mississippi basis which is creating a dead zone It is changing the chemical and biological characteristics of the water which is the definition of pollution Involved multiple states and no one is addressing it said EPA has a duty district court agreed with them after the EPA said they weren t going to do anything to address the violation of the CWA 1St amendment right to petition the government to address your grievances wrote to EPA supported by science supported by studies whole petition package How does the government then have to respond EPA argued that a court has no jurisdiction to review the decision by the agency 5th circuit said they do have jurisdiction but concluded that what EPA did might have been okay but there wasn t enough information so they sent it back to the district court 68 Other Water Issue 0 Total Maximum Daily Loadings TMDLS section 303d1A of the CWA requires states to identify those waters for which ef uent limitations for nontoxic pollutants are not stringent enough to achieve water quality standards 0 TMDLs define the maximum amount of a pollutant that can be discharged into the water segment without violating the water quality standard But also an allocation of that amount between known point and nonpoint sources 0 States are then required by 303 dlC to establish the total maximum daily loadings of these pollutants at a level necessary to implement the applicable water quality standards subject to EPA review and approval 0 303 d states develop a list of impaired waters where ef uent limitations are not stringent enough If the state fails to list all waters then EPA can step in and do it TDMLs are a last resort I Impaired waters are those that do not meet water quality standards that states have set for them even after point sources of pollution have installed the minimum requires levels of pollution control technology I Impairment is based on designated use is it to be used for aquatic life Fishing Swimming primary contact recreation Buffalo Bayou has been assessed and approved for general use and fish consumption but is an impaired water in regards to primary recreation like swimming Some things you have to be more careful about 0 303 e also provides for each state to have a continuing planning process Other environmental laws serve to protect coastal water quality superfund governs remediation of hazardous substance contamination Focuses on remediating contamination problems caused by past waste management practices 0 E g San J acinto waste pit superfund site located at the mouth of the Houston ship channel For years people were measuring the level of dioxin and couldn t tell where it was coming from one of the most dangerous chemicals This was an authorized dumping ground for waste from a paper factory which created dioxin Since the area is subsiding the pits which used to be above the river eventually just sank and went underwater and started oozing into the river People responsible were international paper a huge corporation which bought a lot of other companies Also land owner can be held responsible The land was also then used by waste management Good thing CERCLA does not consider corporate protection Solution put a cap on it dumped tons of rocks on it and put 69 a cover on it But dioxin will always be in that water and mud so you can t clean up the entire river because you d have to remove the mud Can t eat any of the animals from that area Permanent advisory don t eat blue crab from there 0 Strict liability eternal liability joint and several liability CERCLA env outline page 72 Balance maintains healthy and productive ecosystems When you build a reservoir or divert water that s less water that reaches the bays For many years Texas had a system of being able to apply for a water right on these rivers and utilize these waters without worrying about the bays But people became concerned about all the economic industries that depend on a healthy basin and estuary fishing shrimping and crabbing so it is more looked after now Estuaries need balance between salt and fresh impacts fisheries and wildlife When in ows are too low fisheries are bad when in ows are too high productivity drops again Only when it is right in the middle are they productive Guadalupe River has one big reservoir at the top Canyon Lake and crosses the Edwards Aquafer which is a huge underground limestone aquafer basically an underground river that moves through the cracks and faults slightly acidic and creates caverns At the fault line separating the Edwards there are lots of springs which produce and are a major source of water Spring in San Marcos New Braunfels and used to be thousands Canyon Lake was mainly constructed as a ood preventative measure so all the water could go down there and not ash ood everyone s land Half the capacity of the lake is water storage and half is owned by the federal government and kept empty Canyon Lake is only ever 50 full just in case of oods 0 San Antonio Bay 0 SARA San Antonio river authority and GBRA Guadalupe Basin river authority Aquifer emerges between two springs and only place on the planet some species about 8 exist is here Through the 80 s there was unregulated pumping of the aquifer Anyone with property could poke a drill in the ground and get water for free So the water level started dropping due to overuse so the springs started losing their ow Then when there was a dry year it really dropped Because endangered species here depended on higher ow and higher clarity of the water they were threatened O GBRA combined with sierra club and filed endangered species lawsuit Litigated in federal court and won Set up Edward Aquifer Authority EAA to tell everyone what to do and how to get permits and put a cap on pumping GBRA cared because their permits are for the lower portions of the river so they didn t 70 want to have to move water It is also a source of water for all their places downstream Colorado River much bigger river with a huge river basin deep into the hill country Around Austin has lakes and water storage reservoirs that were built mostly by the feds to capture a whole bunch of water not ood prevention Passes through Austin and power plants rely on the water coming from the river to function 0 Has to cross the bay in order to enter the gulf through the carrying of sediment it built up a delta which the corps of engineers cut into a channel it naturally cuts itself into a bunch of small channels 1943 Once the cut open the river channel the water that came down the Colorado would mostly just ow straight through and not spread out in the bay This is a problem because the east bay and west bay were no longer getting their fresh water in ows Fishing changed cause of the lack of freshwater Also shrunk the delta 0 All the rain creates great ow in the Colorado River but it does not add to the water storage reservoirs Right now they are about 33 full It is critical to manage water Trying to avoid personal reductions and mandating water restrictions on the public 0 Lower Colorado basin largest grower of rice requires lots of water Bought water from the river authority to be used for the irrigation system Water rights are like property rights River authority LCRA sold their water rights to Corpus Christi to take water from that area all the way down to Corpus Christi built pipeline Condition we ll sell you water for cheap but if there s not enough water you get cut off Rice irrigation sucks water out but about 80 of the water seeps back into the river and goes down to the bay eventually Because of drought the cities now care how much water the farmers get There was also a lot of pressure by the people who owned the property around the lakes because they are no longer located on the lake Battle for water supply cities v farmers LCRA decided to change their own internal management plan for when they decide to release water for farming and irrigation needs they have not released a single drop for this use in the last 4 years Talked about Professor Irvine s Aransas Project whooping cranes page 37 April 16th ppt for more info ESA take prohibition page 35 harm page 36 Whooping Cranes many legal issues intervention 11th and 10th amendment Buford abstention article 111 standing ESA liability for state agency regulators proximate causation proof of actual death or injury Daubert reliability of scientific evidence FWS methods for counting cranes bench trial recusalmandamus There are also many scientific issues causation of crane deaths and how they died alternate explanations what do they need to survive were the changes in salinity in the bay due to something else like diversions or drought So many expert 71 witnesses with con icting opinions Had to prove TCEQ diversions proved the salinity increase and hurt the cranes Senate Bill 3 2009 Texas law required TCEQ to set environmental ow standards for each river and bay these standards would only be applied to new water permits D s argued that this process was a basis for the federal court to abstain to the state process 5th Cir 1988 Sea turtles were accidentally being caught in shrimp trawls Secretary39s regulations required shrimp trawlers to install and use quotturtle excluder devicesquot also known as quotTEDsquot in their nets or to limit their trawling to 90 minutes or less at a time Only cost a few hundred bucks This was in order to help protect and preserve sea turtles that are either endangered or threatened under ESA 0 Did the agency have enough of an administrative record to support the regulatory action Yes Fishers claim there is not a sufficient record to support TED regulations ie the effect of shrimp trawling on sea turtle immortality But Best Scientific Data consideration does not seem to be a requirement 0 Treated it like a regular agency case Court held that regulations were not arbitrary and capricious and regulations did not violate equal protection guarantees 0 Under the APA the administrative record is reviewed to determine whether the challenged action was arbitrary and capricious an abuse of discretion or otherwise not in accordance with law contrary to constitutional right in excess of statutory jurisdiction authority or limitation or without procedure required by law 5 USC Sec 7062AD o Deference to agency decisions arbitrary and capricious is a very narrow standard of review Thus if the agency considers the factors and articulates a rational relationship between the facts found and the choice made its decision is not arbitrary or capricious 641 F2d 1183 1188 5th Cir Unit B Apr 1981 Indeed the agency39s decision need not be ideal so long as it is not arbitrary or capricious and so long as the agency gave at least minimal consideration to relevant facts contained in the record 0 COSTS P s claim too much cost on LA s economy total of about 59 million Court holds the costs are not arbitrary but are reasonably related to congress purpose There were 5 species of BSA listed sea turtles 0 Court says regulations aimed at preventing the taking of a protected species cannot be invalidated on the ground that the record fails to demonstrate that the regulatory effort will enhance the species39 chance of survival 72 0 Equal Protection Grounds The regulations create an even handed regulatory scheme rationally related to their legitimate purpose This is all that equal protection requires MM much like BSA 0 Take defined broadly including harass 0 NMFS rule defined take as including the negligent or intentional operation of an aircraft or vessel or the doing of any other negligent or intentional act which results in disturbing or molesting a marine animal and feeding or attempting to feed a marine mammal in the wild 5th Cir 1993 operators of cruisescommercial tourboat sought protection from regulation Marine Mammal Protection Act prohibiting the feeding of bottlenose dolphins in the wild 0 Is this harassment P claims that the Secretary of Commerce has no authority to consider this question or to regulate it Court says yes they do Enjoining the decision of congress would be too much and would infringe upon the authority of the Secretary 0 Even though to feed is not in the definition of harass Disturb is a synonym with harass and to feed to dolphins has proven to disturb their normal behavior and makes them less able to search for food on their own The regulation was promulgated by the agency within its authority Protecting marine areas l6 ESA 14311445a 1971 Allows for the designation of marine areas of special national or international significance Basically president has unfettered power to create these protected areas They can be tailored for a particular purpose or use don t have to cordon off with a fence and not allow people to go there Uses inside sanctuaries are not prohibited but do require a special use permit E g ower garden banks in the Gulf of Mexico offshore Two underwater reefs the only coral reefs we have in this part of the world Because they are so offshore it is a pretty good habitat Designated for underwater diving but have to fill out form for permit You can fish there as well as long as you are not destructive Congressional oversight of designations 16 use 431 The President of the United States is authorized in his discretion to declare by public proclamation historic landmarks historic and prehistoric structures and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments and may reserve as a part 73 thereof parcels of land the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected No congressional oversight at all Done through proclamation Gives the President the right to declare something a national monument Can be something as small as a graveyard Bush designated the northwestern Hawaiian Islands a national marine monument about 140000 square miles Designated under the act because of the cultural significance and of the environmental importance of those islands papahanaumokuakea Only place where all forms of fishing are completely prohibited 0 Details on ppt 0 Recreational Activity under proclamation 8031 defined as An activity conducted for personal enjoyment that does not result in the extraction of monument resources and that does not involve a feeforservice transaction This includes but is not limited to wildlife viewing SCUBA diving snorkeling and boating Also conservation research education and native Hawaiian practices allowed by permit Fisheries Collapsing north Atlantic cod high yields make everyone happy cheapest food in Britain and great for the working class However now you almost can t find cod Same for pacific skipj ack tuna king mackerel Chilean sea bass and now Orange Roughy Once one species runs out they just start fishing another Pattern with almost every fishery There is no regulation for what you call your fish when selling it You might not be getting what you paid for There is no law regulating what a restaurant or super market tells you Just call it something else that sounds better The ocean should not be used as an unlimited resource Tragedy of the Commons Just because it s in the fisherman s best interest to catch everything they can before someone else does not mean it s in the public s or natures best interest Salmon fisheries becoming endangered when they need to go back to their nesting places due to dam building which blocks their path Helping through trying to build salmon ladders and shoots to send them over the dam Listing of Atlantic Bluefin Tuna not warranted in 2014 but it is a species of concern However there are differently types of tuna some of them are not threatened while some distinct population groups are almost gone We can use fisheries management tools to try and save the tuna fisheries ICCAT international commission for the conservation of Atlantic tuna However this requires international cooperation and strong domestic fishery management which is not always possible 0 People are trying to find innovative ways around the issue tuna ranching in Australia They will go out into water identify small schools of baby tuna encircle them in a net feed them until they are grown and then you ve just farmed tuna Because it s becoming 74 rarer the price is going through the roof This is not a conservation effort but a money making venture Texas state waters Can the state exercise control over fishingfisheries beyond its water 0 1035 miles 9 nautical miles 3 marine leagues Once you pass the state water boundaries you are in federal water jurisdiction nation s territorial seas 24 mile zone 200 miles is the nation s exclusive economic zone not under state control except for natural resources such as fisheries hydrocarbons minerals gov can let boats go through there and state doesn t have a say Does the state have the right to regulate activities of its residents beyond their 3 or 1035 mile zone YES Skiriotes Why might they want to regulate fishing activities 0 Most inspection and regulation comes when people return back to port If they don t have control then people can get away with getting things through regulation like people catching more fish than their permit allows and saying its cause they have a federal permit not a state permit US SC 1941 A State has the power to govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest and where there is no conflict with Acts of Congress no federal law so no preemption 0 State criminal conviction for using diving equipment outside state waters to take sponges upheld 0 There was no international law prohibiting the state from regulating its own citizens upon the high seas Florida did have a law however court said so long as the law is reasonable and not protectionist ex can t charge non citizens of other US states higher fees for fishing licenses priv and immunity clause can t deny foreigners licenses equal protection 0 The Florida statute forbidding the use of diving equipment for the purpose of quottaking commercial sponges from the Gulf of Mexico or the Straits of Florida or other waters within the territorial limits of the Floridaquot is not in con ict with an Act of Congress which prohibits taking in those waters outside of state territorial limits sponges of less than a particular size 0 The Florida regulation is within the competency of the State regardless of the question of territorial limits when applied to a citizen of the State found taking sponges with diving equipment at a point two marine leagues off the west shoreline of the State US SC 1936 Facts the Fish and Game Code of California for the purpose of conserving for food the fish found within the waters of the State regulates the local processing of sardines whether taken within those waters or imported In this case the 75 manufacturing company treated only sardines brought in from the high seas and disposing of its products only in interstate and foreign commerce Upholding state landing and possession laws when necessary to protect local fisheries Sardines in CA and prevent waste for nonhuman uses Even though it indirectly regulated beyond state waters and had an effect on interstate commerce The California regulation is not invalid under the commerce clause of the Constitution since in purpose and in direct operation it is confined to a merely local activity and if it affects interstate or foreign commerce the result is purely incidental F aster Packing Co v Haydel A statute does not become unconstitutional merely because it has created a condition of affairs which renders the making of a related contract lawful in itself ineffective State regulations bearing a reasonable relation to an object within the state police power e g the conservation of the State39s fish supply cannot be declared invalid because a court may regard them as ineffectual or harsh in particular instances or as aids to an objectionable policy a person taking or attempting to take game and nongame fish from salt water for noncommercial purposes is required to have a valid fishing license and a saltwater fishing stamp endorsement Texas recreational and commercial fisherman fishing more than 9 nautical miles off the coast of Texas are in federal waters and are subject to rules and regulations that may differ from those in state waters Recreational anglers must have Texas fishing license and saltwater endorsement to bring any fish taken in federal waters ashore in Texas The limits and restrictions apply to aquatic life caught in the public waters of Texas out to nine 9 nautical miles in the Gulf of Mexico and also apply to aquatic life caught between 9 and 200 nautical miles in the exclusive economic zone EEZ and landed in this state All kinds of fish consumption advisories Mercury levels in larger fish are very potentially harmful Commercial License Buyback Texas does this to reduce the number of license holders and fishing effort in each of those fisheries Too many people engaging in the fishery when there are more and more licenses We don t want more people fishing than the fishery can handle More like a property right than just a permit Often the retired licenses are bought from people who want to retire and move somewhere else taken out of circulation Can be very hard now to get new license for certain fisheries Bought back 66 of the bay and bait shrimp fishing boat license in Texas as of 2014 Active Management USFWS sport fish restoration program 76 Supported by taxes on fishing equipment electric motors sonar and motorboat fuel collected by US treasury In 2014 Texas got 163 Million For education monitoring and research programs Fish hatchery operations 3 marine hatcheries 0 Lake Jackson produces juvenile red drum and spotted speckled trout to stock in Texas bays Has the capacity to produce up to 15 million juvenile fish each year to reestablish and recover some of these fisheries Federal Legislation 1976 regulates federal fisheries out to the 200 mile exclusive economic zone Regulates all things that might impact a fishery Meant to conserve and manage the fishery resources Goal is to achieve maintain and continue the optimum yield Strong representation of fishing industry Set quotas seasons and rules for the industry Established the regional fishery management councils and development of fishery management plans There are 10 national standards Big lofty goals 1 Achieve optimum yield and prevent overfishing 2 Best available scientific information 3 Manage stocks as a unit 4 Allocations fair and equitable promote conservation and prevent excessive shares 5 Consider efficiency in utilization not have economic allocation as sole purpose 6 Allow for variations and contingencies 7 Minimize costs avoid duplication 8 Consider fishing communities to provide for their sustained participation and to minimize adverse economic impacts 9 Minimize bycatch and bycatch mortality 10 Promote safety of human life at sea DC Court of Appeals 2000 The court holds that the agency did not comply with the MagnusonStevens Fishery Conservation and Management Act or its regulations when they promulgated the 1999 summer ounder fishing quota The court holds that the summer ounder fishing quota was unreasonable and thus violates step two of Chevron USA Inc v Natural Resources Defense Council Court reversed quota 77 Courts usually do not second guess the agency however in this case the agency set a quota TAL in their management plan which only had an 18 chance of meeting the goal There is no meaningful data to support the assertion that a large mesh size would reduce the number of undersized fish caught and the NMFS conducted no analysis whatsoever to determine the likely effect of this measure on the probability of meeting the target mortality rate M The thing which gives the greatest overall benefit to the nation 0 Food production recreational opportunity marine ecosystems Based on the Maximum sustainable yield as reduced by 0 Social economic or ecological factors Must be consistent with rebuilding if overfished MSY largest longterm average yield under prevailing economic and environmental conditions 16 USC 1856 Statute preserves state authority within state waters However the Feds can step in when state actionlack of action substantiallv and adverselv effects the fishery management plan FMP in the exclusive economic zone This preserved Skiriotes state authority over state registered vessels operating in EEZ so long as state laws are consistent with the FMP and the FMP delegates authority to the state Gulf of Mexico has its own management council 17 members regulate fishing in the EEZ commercial and recreational Commercial aquaculture is allowed in the gulf since 2009 this includes fish farms coastal offshore and ranching Red Snapper Restoration example of court looking into complicated fishery science and work their way through all the technical information When proposing aquaculture plans NOAA is the agency that would issue you a commercial permit They last for 10 years with renewals being done every 5 years Required assurance bond Can farm all gulf species except coral and shrimp and cannot cultivate nonnative transgenic species Technology assessed on a case by case basis When considering site development in the Gulf of Mexico you must consider storm damage protection fragile areas waste chemicals spread of disease among farmed 78 fish using wild fish to feed captive fish which leaves less food for wild fish and other marine life Torrey Canyon 1967 off coast of Britain in the English Channel captain took a short cut to save time and ran aground tanker broke up and lost 119000 tons of oil Response bombed it because it was stuck on a reef and leaking oil also used detergent This was the wrong decision because they killed more wildlife than oil Amoco Cadiz off the coast of Brittany 220000 tons released Exxon Valdez 1989 38800 tons released Captain was drunk Changed national discussions Large spills are a consequence of sending tankers off into the high seas because accidents will happen Now everyone is required to have double hulled tankers in American waters Deepwater Horizon 2010 454000 tons spilled Resulted in the complete reorganization of the way the federal gov does oil and gas leasing and does safety and environmental things off shore Solution Burn it No more sophisticated than 1967 In Situ Burning is one of the recognized techniques in the national contingency plan for dealing with oil spills But actually sometimes it can be more useful than using dispersements because it s collected and localized and then burned Business economic loss fisherman losing business from oil spill Mitigation Primary responsibility under fed statute falls upon people responsible Only if they cannot do it does the responsibility fall to the federal government and the states Causes of oil releases disasters intentional discharges emptying of bilges ocean dumping land based and accidental discharges There are a lot of ways pollution can get into the water CWA has very strict fines for intentional discharges Can find oil slicks and then trace them back to figure out which ship came through that area 2 mechanismsstatutes used to address pollution in waters 1 33 USC 1321 framework for civil and criminal enforcement a 311b1 It is the policy of the US that there should be no discharges of oil or hazardous substances into or upon the navigable water of the US adjoining shorelines or into or upon the waters of the contiguous zone i Navigable waters shorelines 200 mile EEZ and past Very far reach 79 b The discharge of oil in such quantities as may be harmful This amount is determined by president through regulations May be harmful to the public health or welfare or the environment of the US including but not limited to fish shellfish wildlife and public and private property shorelines and beaches c Oil is defined broadly can mean oil of any kind or in any form including but not limited to petroleum fuel oil sludge oil refuse and oil mixed with other wastes other than dredged spoil i Also encompasses hazardous materials spills subject to CERCLA d What is a harmful quantity of oil 40 CFR 1103 any sheen film or discoloration of the surface of the water i Sheen is an iridescent appearance on the surface of the water 40 CFR 1101 Subject to reporting requirements and potential liability and may trigger response ii applies to any person who causes a discharge iii Chevron I challenged the Sheen test US v Chevron 1978 sheen test upheld created a rebuttable presumption of harm to the environment After 311 was amended to add as may be harmful to b3 and b4 iv Chevron II 12 sheen discharges reported to the coast guard in 1986 Fined 8800 in administrative action On review the district court found that the spill was not harmful CWA granted the agency the discretion to determine what may be harmful The CWA had amended this to increase this discretion 1 Chevron lost due to Chevron deference when the statute is clear agency interpretation has to be in accordance when statute is ambiguous defer to any reasonable agency interpretation e CWA 311 Civil penalties 5000 to 25000 per day or up to 1000 per barrel for accidents no fault 33 USC 1321b7A i Gross negligence or willful misconduct fine of not less than 100000 or up to 3000 per barrel as increased by in ation now 4300 ii Penalties are in addition to removal and damages costs iii Strict liability even when selfreported f CWA 311 Criminal Penalties for knowing or negligent discharges Up to prosecutorial discretion is the company liable or is the operator or person under the company liable 80 i Negligent 2500 to 25000 per day or up to one year in prison ii Knowing 5000 to 50000 or up to 3 years in prison iii Reporting does not prevent criminal enforcement 2 33 USC 2701 assigns responsibility for cleanup costs damages and contingency planning Congress response after Deepwater Happens regardless of how big the accident is Same mechanism used even if it s a small oil release a Who is responsible for immediate response after accident Who then gets to join in on the original response Who has to pay for those costs Deepwater around 20 billion settlement fines Even small oil spills trigger huge fines and a lot of agency action Once it is cleaned up what were the damages and who has to be compensated Then once you ve paid all that you get a big fine by the federal government under the CWA b Navigable waters under the OPA essentially the same definition as CWA does not need to be navigable in fact only navigable in law applies to adjacent wetlands significant nexus not isolated nonnav c Clean up liability under OPA applies to any person owning operating or chartering a vessel Owner of the oil being transported Owner or operator of onshore facility ports and pipelines Responsible third parties can be the owner of the actual oil and not the transporter If you are sailing a merchant ship and you crash into an oil rig you are not a responsible third party i Strict joint and several liability everyone who they think could have liability gets dragged into the cleanup and has to pay a portion good faith response Then they try to apportion liability to someone else later and possibly sue each other CWA v OPA OPA liability limits were increased over the old CWA ones gt CWA 50 mil cap on clean up liability gt OPA vessels 1200 per ton or 10 Mil onshore 350 mil offshore removal 75 mil gt There is no limit if gross negligence willful misconduct or a safety violation has occurred OPA Defenses rarely applied Act of god like fall out from hurricanes still have to show that you were adequately prepared and the facility had some measure of protection 81 Act of war like a terrorist attack Act or omission of a 3rd party have to prove there was no contractual relationship you exercised due care and took precautions against reasonable foreseeable 3rd party acts Removal Costs Responsible party bears primary responsibility but statute requires government to step in it is not done properly or if they aren t taking care of it Liable for costs to US or state or any person acting consistent with the national contingency plan You want these other cleanupservice companies to help you because they know what they re doing as long as they are acting in compliance you are responsible for their costs Good Samaritan provision to protect those assisting cleanup eX shrimpers out there towing boons to clean up if oil leaks from a broken boon then they are not liable cause they were only trying to help Assisting parties can get reimbursed from the Oil Spill Liability Cleanup Fund How clean is clean When cleanup activity poses greater threat of resource damage than the remaining oil contamination you can t do anymore eX having to dig up and replant a marsh No sheen in water or emanating from the shoreline clean enough No risk of human exposure in areas of use OPA damages if the spilled oil contaminated and killed an oyster reef then you are responsible for the loss of it to the government Can recover net loss of taxes royalties rents fees and profit shares due to injury or loss of real property How much will it take to regain public trust value Net costs of providing increased public services OPA Damages also recoverable by private parties summary of all the different claims in reading loss due to real property Loss of subsidence use tribes only Business Economic Loss BP settled with individuals this way in Deepwater Loss of profits or earning capacity due to real property or natural resource damage 0 Business loss You had to prove your business incomeprofit the year before Deepwater that it dropped during Deepwater and then afterwards went back up after the cleanup Circuit said you had to link your loss to the cause but BP signed the agreement so they were held to it 82 Thinking Ahead Texas Oil Spill Prevention and Response Program very similar to OPA funded by 1 13 cent tax on each barrel of crude of oad in Texas ports Used for research monitoring automated buoy system toolkits taskforce and response equipment States are allowed to enforce stricter laws than those employed by OPA Texas permanent school funds holds in trust all the state owned lands for the people of Texas Second oldest endowment in the US PSF lands submerged lands act a bunch of surface land surface and submerged land mineral rights for 13 million acres value of royalties and future payment for minerals would be around 33 billion All on PowerPoint Fund provides towards the cost of public education in the state Also provides bonds issued in support of public education in Texas Offshore Wind energy leases state lands for wind energy new record in 2014 for wind power 30 of the demand most of it came from wind farms in the gulf coast Renewable energy credits government support Highly dependent upon production tax credits Getting into the wind business was really good for company s bottom lines because of the incentives Texas doesn t have any offshore wind yet America would be a great place to build it though because there is high wind velocity that could generate a lot of power Cape Wind permitting is proposed Started permitting in 2001 and still hasn t come through Offshore wind leases why wouldn t they want to spend billions of dollars to put wind farm equipment in the gulf Too much likelihood of hurricanes loss or destruction of equipment Too hard to calculate the risk and insurance possibly Some wind turbines are fixed to the seabed and some are oating In deeper water they may oat Technology proposed swaying wind farms just tethered and sway back and forth What to look at if you want to build a wind farm have to find a great place ideal location to build with lots of wind do studies to figure out if the wind is blowing at the right height what time of the day the wind blows Have to get financing too expensive to build on your own dime Permits Will the rewards be as great as the risks and hassle 0 Mt permits are required for offshore wind fam You do not need any permit to build a wind turbine on private property Are you building in state water or beyond state water federal Is it oating or foundation SO many different moving parts not a simple project financing leasing and multiple permits I If you wanted to build in state water you would go to the General Land Officer GLO and ask for a lease of state owned submerged land Instead of leasing ind turbine square they lease entire blocks like they would for oil and gas 83 I If you wanted to build in federal water you would go to the department of interior bureau of land management perhaps and ask for a lease I Have to think of infrastructure have to link all the turbines together and make sure it s taken ashore by cable You will run a cable across a beach possibly through sand dunes or wetlands before you connect to the nearest substation So you need to look and see whether or not you need additional permits for these areas I Public utilities permit certification of convenience and necessity I EPA federal agency has to do a review if they want to give you a permit Lease of federal water triggers NEPA review I CWA 404 permit I Rivers and harbors section 10 permit Harming navigable capacity of waters of the US go to the Corps of Engineers for those permit which would trigger NEPA review I Coast Guard responsible for navigation have to go to them for authorization will not authorize wind turbines if it is a shipping lane or highly trafficked area They don t care whether you re in federal water or state water I Only time you make a distinction between state and federal is when you re on the sea bed state doesn t have the right to pollute waters even if they re not on the sea bed Liquefied Natural Gas LNG way you move it cooling natural gas it liquefies becomes compact and takes up less space load it onto huge tankers and sail it across the ocean to someone else who bought it They turn it back into gas and send it out to be used Around 2000 America wanted to start importing because we didn t have enough natural gas So a lot of people in the gulf coast petrochemical industry started building import terminals and had to go through permitting process All terminals came online the same time that fracking started so we had more than enough natural gas Some of these terminals sat unused for years Now everyone wants to build export terminals because we have so much natural gas would pump up the price if we exported Some were also try to convert the import terminals into export Two permitted ones in Texas already Some tankers can reliquefy while they re still in the gulf Safety only 4 accidents over 60 years But they are possibly explosive Regulation through FERC federal energy regulatory commission 0 http energy gov sitesprodfiles 20 1 3 1 0f3 ep act2005 pdf 84 What laws apply in theory to every country PreUNCLOS 1945 claimed on behalf of the US the natural resources all the way out to the contiguous continental shelf No basis in law at the time Other countries followed through with their own claims Then people realized you can t just have nations claiming areas cause some would claim way more than others if they had a larger continental shelf Reaction UN Conferences gt1958 on 1960s gt marine fisheries begin to decline 1960s gt obsession with undersea mining of manganese nodules deep sea mining UN 1967 seabed is the common heritage of mankind Adopted by unanimous vote including the US Notion that what is out there belongs to us all and needs to be protected 1982 United Nations Convention on the Law of the Sea international agreementtreaty 0 By 1993 it had 60 ratifications so was entered into force Reagan disagree over the deep seabed provisions It was amended in 1994 to fix this issue yes US still hasn t signed US was given a permanent seat with veto power over the authority Currently there are 167 signatories State of Palestine ratified it in 2015 0 Establishes international laws governing the maritime rights of countries Defines the rights and responsibilities of nations with respect to their use of the world39s oceans establishing guidelines for businesses the environment and the management of marine natural resources 0 Only coastal nation states that have not signed are USA Syria Venezuela Peru likely will Turkey and Eritrea US Navy even wants us to sign it but it won t happen Some of it is misconceived notions Customary Law before it came into force many provisions and jurisdictional concepts of UNCLOS became international law So the US basically pretends that they signed it only claim out to the exclusive economic zone not the shelf as said by Truman By US tactic and acceptance it is clear that the US recognized the treaty and acts in accordance AS IF it were the law What does the law say EEZ out to 200 Nautical Miles EEZ is from the baseline to 200 m out everything is measured from the baseline 85 Recognizes territorial water out to 12 nautical miles Another 12 miles off shore are the contiguous seas Nation can exercise some control If shelf is inside the EEZ it can extend beyond In the territorial sea the coastal national has FULL sovereignty in that 12 nautical miles from the baseline Normally measure from the low water line except straight lines bays reefs islands rivers mouths borders and between close nations when there isn t 12 miles between the two they have to split it equally apart Innocent Passage nation has full sovereignty over their territorial seas but other nations can have innocent passage must be continuous and expeditious cannot prejudice peace good order or security cannot hamper list of things not so innocent information collection propaganda can suspend this during a national emergency must comply with national safety and navigation regs even foreign warships have right of innocent passage in territorial seas O WARSHIPS have to bear external marks of nationality be under the command of the commissioned officer be manned by armed forces official and submarine must be on the surface and show ag Contiguous Zone and Straits coastal nation has the right to exercise some control out to 24 nautical miles seaward of its baseline Exclusive Economic Zone no further than 200 nm from the baseline The coastal state has sovereign rights for the purpose of exploring and exploiting conserving and managing the natural resources whether living or nonliving of the waters super adjacent to the seabed and of the seabed and its subsoil and with regard to other activities for the economic exploitation and exploration of the zone such as the production of energy from the water currents and winds 0 Also there is jurisdiction over artificial island structures research env protection 0 Fishing in the EEZ the coastal state shall determine the allowable catch of the living resources within its EEZ Article 61 Such measures shall be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield Use best scientific evidence available Artificial Islands Article 60 coastal state has the exclusive right to construct within their EE zone artificial islands installations and structures BUT it does not extend their rights from that point ie the new installations do not possess the status of islands and do 86 not have any territorial sea of their own Their new presence does not affect the territorial seas the EEZs or the continental shelf Areas Belonging to No One High Seas open ocean that area that is not Within any country s jurisdiction Not part of an EEZ The Area composed of the seabed and ocean oor under the high sea Extends beyond the limits of any nation s jurisdiction The area s resources are intended to be the common heritage of mankind and thus do not belong to any one state and no country can declare sovereignty over it Description of Maritime Zones and Boundaries httpWWWgcnoaagovgcilmaritimehtmlcontiguous 87
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