Ocean and Coastal Law Outline



Ocean and Coastal Law Outline

Fall 98

Beth Dahl

map pg 13 = sets out the diff areas of the coastal lands

PTD:

title of lands over which the tide ebbs and flows is held in trust for the public

non-navigable coastal waters

IF one person owns the land on both sides of the stream, THEN the person owns the bed too

IF the banks of the stream are owned by diff people THEN each owns the thread of the stream

owners of non-nav waters may exercise exclusive control over the overlying waters

BUT if nav, then state owns it

Phillips Petroleum (1988 -- US Sup Ct) MS tidal lands from the Gulf of Mexico which were not nav in fact

navigable waters: have many diff meanings

PTD rts charged to first 13 colonies at beginning of country

states upon entry into the Union received ownership of all lands under waters subject to the ebb and flow of the tide = PTD applies

PTD extended to include all lands influenced by tidewaters

not necessarily navigable

all tidewaters are connected to the sea -- they still have the geographical, chemical and environmental qualities which make lands beneath tidal waters unique

mean high tide line: wet sand area and submerged lands

PTD line

sometimes, the fed govt owns land at the ocean BUT state STILL owns the tide lines

states decided the FORM of the PTD

equal footing doctrine: the rts of the original 13 colonies in sov passes along to each new state as it joins the Union -- PTD

IL Central RR (1892): Chicago wanted to sell riverfront land to RR

foundational PTD

state MUST keep rts and title to the land

EXCEPTION:

as to such parcels as are used in promoting the interest of the public

OR can be disposed of without substantial impairment of the public interest in the lands and waters remaining

People v Chicago Park District (1976): IL leg passed bill which granted submerged land on Lake MI to US Steel Corp

PTD public interest extended:

from only:

navigation

fishing

to:

recreational uses = swimming, bathing, other shore activities

when a grant of submerged land beneath the waters of Lake MI is proposed under the circum here,the public purpose to be served CANNOT be only incidental and remote

Caminitti v Boyle (1987 WA): statute allowing owners of residential prop to maintain private recreational docks on such PTD lands without payment to state

state PTD management obligations

statute does not violate PTD

NOT an attempt to convey title in land

state STILL has dominion and control over the lands

rt to wharf out in WA = littoral and riparian rts

TEST of whether the state leg has violated the PTD:

has the state retained adequate control over trust resources?

IF so, whether by so doing, the state has promoted the interests of the public in the public auth interest?

OR has not substantially impaired it?

CA PTD

CA has purported to give away its lands in many bays

BUT even though the business own the land, they are subject to the public interest/use

PTD public uses

navigation

commerce

fishing

hunting,

bathing,

swimming,

general recreation

using the bottom for anchoring, standing or other purposes

AND conservation

PTD is ONLY a state issue (not fed govt)!!!!!!!!!

Private Littoral and Riparian Rts

littoral rts: saltwater bodies and freshwater lake rts

freshwater bodies also have riparian rts

stateÕs vary as to how they will enforce and allow their littoral rts

riparian rts: in rivers and other freshwater bodies

traditional littoral and riparian RIGHTS

rt to have water remain in place

rt to retain as nearly as possible natural character

the rt to access including

rt to maintain contact with body of water

rt to accretions

rt to purchase adjacent submerged land IF it sold by state

IF filling of submerged land is permitted by state, the preferential rt to fill adjacent submerged land

rt to wharf out to the navigable portion of a body of water, subject to reasonable restrictions

rt to free use of water immediately adjoining prop for the transaction of business associated with wharves or other such structures

mean high tide line: average of all tides over 18.6 year cycle per Dept of Commerce

Borax rule:

fed CL rule

applied to determine the seaward boundary of grant of ocean front prop

definitions

accretions: additions to the land resulting from the gradual deposit by water of sand, sediment or other material

= the ACT

alluvion: increase of earth on a short or bank of a stream or sea by the force of water (current or waves) which is so gradual that no one can judge how much is added at each moment in time

= the deposit itself

reliction: land which formerly was covered by water but which has become dry land by the imperceptible recession of the water

CHGÕs in littoral and riparian prop rts

IF gradual accretion, THEN an owner of littoral prop gains title to additions or loses title to lands

NO chg in rts =

sudden and perceptibe chg does NOT result in a chg of boundary or ownership

lose prop rts IF erosion

CANNOT intentionally increase own estate thru accretion or reliction by artificial means

BUT littoral owner usually entitled to additions that result from artificial conditions created by a 3rd party without consent

Hughes v WA (1967 US Sup Ct): P benefitted from continual accretion onto her beachfront prop and the state of WA wants to take over the rt of the land

first holder of the title got it from the fed govt BEFORE WA became a state

THUS the fed law applies

natural accretions of land belong to the adjacent landowner

applies ONLY to littoral owners

everything else is subject to state law

Hudson House v Rozman (1973 WA Sup Ct): state park clmed accreted lands lying west of the state part which were on ocean so ocean front owner lost frontage

normally the P would get the rts of the accretion bc they owned the land that the accretion thumb grew out of

BUT here the ct did not do that

INSTEAD, based upon the facts of the case, it found the new accretion thumb to be a part of the state park

ONLY applies to accretions of considerable magnitude

Lummis v Lilly (1982, MA ct): PÕs land is eroding bc of a groin by D

about P rt to accretions being LIMITED by groin

groin : a solid structure which lies generally perpendicular to the shoreline and extends from the back shore out across the foreshore of the beach

must go thru the Army Corps of Engineers when building a groin

reasonable use test:

each riparian owner MUST conduct his operations reasonably in view of like rts and obligations in the owners above and below him

CANNOT essentially interfere with an equally beneficial

factors:

purpose of use = reasonable

the suitability of the use to the water course

the economic value of the use

the social value of the use

the extent and amt of harm it causes

the practicality of adjusting the quantity of water used by each owner

the protection of existing values of water uses, land, investments and enterprise

AND the justice of requiring the user who is causing harm to bear the loss

In re Protect of Mason (1985 NC Ct of App): clam seller leased public land in the Sound for clam culture which blocked MasonÕs access to the water

riparian owner rts do not extent as far as necessary to provide access to the navigable parts of the waterway

P is entitled to SOME access to deeper water thru the area of the proposed lease

some juris distinguish between the waterfront owners and owners of prop adjacent to the ocean or gulf

THEN only rts are those associated with accretion, erosion, reliction and other shore processes

oceanfront owners have NO CL rt to construct piers or wharfs in ocean waters

Becker v Litty (1989): permit for the bridge from island to mainland which would block access for boats to the water inlet

rt of public to navigate

riparian owner has the rt of access to water

BUT ONLY in front of his own prop

in proper circum also has the rt to reach that water for purposes of fishing, bathing and making certain improvements into the water

its does NOT encompass a rt to free navigation!

BUT rt to access does NOT encompass public rt to navigation

Navigational Servitudes

Federal

when the fed govt acts to aid nav in the nationÕs waterways

removes obstructions or private structures

OR otherwise destroys or diminishes private riparian rts,

the fed govt is NOT required to pay compensation to the owners of such structure and prop interest

applies ONLY to damages suffered BELOW mean high tide line

Lewis Blue Pt Oyster Co v Briggs (1913 US Sup Ct): dredging of a bay by the state of NY

Fed govt is promoting nav by dredging, since the oyster bed is BELOW mean high tide line, Nav Servitude applies = NO comp

NO taking

public rt of navigation is the dominant rt

navigational power: the reg power Congress exercises over nav waters under the commerce clause

State

IF fed govt has chosen NOT to exercise nav power, states MAY do so

NOT found in ALL Coastal or Great Lakes States

operates as a NO compensation rule -- same as fed law

3 categories of state servitudes

general rule: the state to compensate riparian owners for infringement on prop rt UNLESS the project causing the harm is in aid of nav

public purpose rule: NO comp IF the offending project is for ANY public purpose

Louisiana exception: the scope of the servitude extends to projects in aid of nav that are miles from the actual boundaries of the watercourse, allowing states to burden all prop in between without payment of comp

Wernberg (1973 Alaska): state built highway which blocked access to Cook Inlet

rejected stateÕs argument of state nav servitude

state nav servitudes are subordinate to fed ones

bridge is NOT for nav use

used general rule = state MUST compensate

Colberg Inc (1967 CA): state wanted to build a low level bridge which would impede PÕs access to nav waters for ships

public purpose rule

bridge is in public interes t = NO comp

Public Beach Access rights

public use of public and private land surrounding beach areas

sand beaches issue and surrounding land

vertical access issue: rts of the public have to get from the interior public area to the publicly owned beach thru privately owned land

lateral access issue: you made it to the beach, but how far up and down the beach can the public walk? what rts do you have up and down the land?

5 approaches to public beach access rts

PTD

Matthews v Bay Head Improvement Assn (1984 NJ Sup Ct): association owns most of the land surrounding beach

public interest is satisfied so long as there is reasonable access to the sea

also seems to be saying that it must be a meaningful access to the sand beach (ie. not allowing parking is NOT allowing for meaningful access)

factors

location of dry sand area in relation to foreshore

extent and availability of the publicly owned upland sand area

nature and extent of public demand

usage of the public sand land by the owner

prescriptive access:

arise when the public continually uses the land of another for a prescribed period of time

vertical access question

EX: Holden Beach (1991 NC): roadway running parallel to a beach and crossing DÕs subdivision when D tried to stop access by rd

MUST be

burden of proving on party clming the easement

adverse, hostile or under a clm of rt

open and notorious

with the actual or imputed knowledge of the owner

law presumes that use is with consent

UNLESS contrary evidence appears

continuous and uninterrupted for 20 years

NOT enough to try to stop the public

MUST be mostly successful

an interruption of use must be accompanied by some act of the owner which prevents the use of the easement

the mere fact of doing acts on the land which renders the exercise of the clm less convenient does not necessarily work

substantial identity of easement clmed

= determine with reasonable specificity the location of the easement clmed

access dedication:

intent is shown by the owner to allow public use

either express or implied

vertical access

Seaway Co (1964 TX): TX AG wanted to prohibit P for obstructing the dry sand beach

an implied CL dedication by predecessorÕs in title

NEED

IF the record shows unequivocal acts or declarations of the land owner dedicating the same to public use

others act on the faith of such dedication

the land owner shown to intend to dedicate the land to public use

express OR implied

IF implied :

manifested by some ACT or course of conduct

IF open acts are of such a nautre as to induce the belief that the owner intended to dedicate the way to the public

AND individuals act on such conduct

need NOT have specific deeds or use to be for particular length of time

ALL that is needed is ACT by the owner

customary access rts:

a public rt to use the dry sand beaches

custom: such a usage as by common consent and uniform practice has become the law of a place

Thronton v Hay (1969 OR): OR beaches

since the earlier settlement the gen public has assumed that the dry sand area was part of the public beach

MAY apply to a large area

NEED:

ancient: used so long that the memory of man runneth not to the contrary -- OR has been this way since settlers came

rt be exercised without interruption

peaceable and free from dispute

reasonableness is satisfied by evidence that the public has always made use of the land in a manner appropriate to the land and to the usages of the community

certainty -- here satisfied by visible boundaries of dry sand area and by the character of the land

obligatory: no left to the option of each landowner whether or not the public rt will be recognized

NOT repugnant or inconsistent with other customs or with other laws

Matcha v Mattax: doctrine of custom shifted with the natural movement of the beach

regulatory approaches:

Georgia-Pacific (1982 CA): CA Coastal commission required dedication of public access on prop in order to get permit

CA Coastal Commissions Approach : when there is vacant prop developed, the commission REQUIRES dedication of public access to coastline as a condition of coastal development

Commission may impose conditions on permits to achieve that end

WhalersÕ Village Club (1985 CA): public access easement as a condition of the permit

Commission CANNOT interfere with ownerÕs rts BEFORE acceptance of CommissionÕs offer of dedication

NEPA

¤ 4321 purpose (pg 87)

¤ 4332 cooperation of agfencies

EIS (what it needs to include)

other things for reports

board nat policy = preserving and protecting the environment

requires:

environ costs of nay major agency action be disclosed to the public

AND significant consideration in the decision-making process

Environ Impact Statement (EIS) required

includes description of alternatives to contemplated action

whether EIS required????????? pg 89

adequacy of EIS?

cts apply the good faith objectivity test

narrow arb and cap std

rule of reason: ALL reasonable alternatives MUST be included in the EIS

¤ 404 CWA = fed projects specifically authorized by Congress are NOT prohibited IF EIS statement is included

Rivers and Harbours Act of 1899 (RHA)

Army Corps of Engineers power is derived from Congress

¤ 9

NEED consent from Congress for construction over nav waters

OR IF within state THEN can get approval from Corps

waters =

ebb and flow of tide

AND used for interstate commerce

¤ 10

any obstruction NOT affirmatively authorized by Congress is prohibited

it shall NOT be lawful to excavate or fill . . . UNLESS work has been approved by Corps

¤ 13 = fines

Leslie Salt (1978 9th Cir): P owned acres of prop along shores of San Fran Bay, marshland owned by P and dikes put in and the permit requirements chged, question of whether the dikes were legal after the chg

regs chged from MHW to Mean Higher High water mark

Willink (1916): boundaries on Atlantic

Borax (1935): boundaries on the Pacific

both US Sup Ct cases

tidelands extend to the average height of all of the high waters over period of 18.6 years = MHW

MHW line is nav waters of the US

Corps Regs (pg 99 - 102)

navigable waters of the US =

subject to ebb and flow of the tide

AND interstate commerce

further def of nav waters

includes ALL ocean and coastal waters

shoreward juris = MHW

Kaiser-Aetna (1979 US Sup Ct):

although activities in pond MIGHT be subject to RHA permit requirements

does NOT mean that private waters of the pond = public waters merely bc the developer connected them to nav waters of the US

Clean Water Act

sister law to RHA

CWA v. RHA

Jurisdiction

RHA = below MHW line

CWA = extends above MHW to all waters of the US

Purpose

RHA = protect nav waters from impairment of nav (broad)

CWA = deal with poll -- controll the discharge into waters

Actions Controlled

RHA = construction

CWA = discharge of dreged and fill materials

overlap = BOTH require permits

permit process

Corps and the EPA

EPA is the govt agency designated to administer the Act

EPA shares the amdin duties with the Corps UNLIKE the RHA

HOWEVER, the EPA may veto what has been determined by the Corps IF

adverse effects on diff case

¤ 404(c)

EPA has ultimate admin auth to construe the phrase waters of the US and thus determine the ultimate reach of ¤ 404

CWA statute (pg 104 - 107)

¤ 301 effluent limitations = illegal to discharge poll

¤ 404 permits for dredged or filled materials

(a) Corp may issue permits for the discharge of dredge or fill material

(c) EPA has veto power over permit decisions

(e) Corps may issue general permits IF

minimal adverse environ impact

AND minimal cumulative environ impact

NO general permit for more than 5 years

(f) EXCEPTION = dredge and filled ALLOWED

for farming, silvaculture and ranching

AND maintenance and emergency repair for damaged dikes and dams

BUT exception = permits required for any above activities which chg the course of the waters

¤ 502: definitions

nav waters = waters of the US

Leslie Salt (1978 9th Cir): see above

Corps juris under the CWA extends at least as to the waters which are no longer subject to tidal inundation

Wetlands

CWA does NOT mention wetlands in the statute

transitional wetlands: many are transitional belts that link the dry uplands with coastal rivers, estuaries and other waters during many parts of the year

CWA jurisdictional question

Corps Regulations (pg 112-14)

¤ 328.3 def of waters of the US

¤ 328.3(a): waters of the US

interstate wetlands

need to have interstate USE

wetlands adjacent to waters

(b) wetlands

(c) adjacent = bordering, contiguous or neighbouring

¤ 328.4 LIMITS on jurisdiction

limits on non-tidal waters to

ordinary high water mark = absence of wetlands

limit of adjacent wetlands = adjacent wetlands present

WHEN ONLY wetlands = limit of wetlands

Riverside Bayview Homes, Inc (1985 US Sup Ct): housing developing under construction where wanting to put fill material into wetlands adjacent to nav bodies of water

since the corp has juris, it is their call to decide how and if to issue the permit

endorses the Corps addition of adjacent wetlands to waters of the US

up to the Corps to decide whether or not something is water dep and whether to allow the work or not -- SUPPORT the agency

EPA regs on wetlands (pg 120)

¤ 230.41 determining which wetlands are subject to ¤ 404

def ofwetlands

Corps regs (pg 123 -24)

¤ 323.2 definitions

(c) def ofdredge material

material excavated or dredged from waters of the US

defdischarge of dredge material

(f) def offill material

corps permit process

general permits: automatic authorizations of certain categories of activities

the person may proceed without notifying the Corps

HOWEVER if the activity involves modification of less than ten acres of non-tidal wetlands, the activity is permitted but the dist engineer MUST be notified before it begins

since no individual review conducted of general permit activities, what types should be included in this classification is contentious

individual permit: if activity does not fall under the gen permit

app is subject to an intensive public interest review

Corps regs for public interest review (pg 127-29)

gives criteria

consider effects on wetlands = against public interest

after the fact permits: the corps issues a cease and desist order when someone working without a permit when should have one

after the fact permit reg (pg 130)

EPA v. Corps

EPA sees itself as having the obligation to protect the environ from degradation

Corps sees its role as making a determination of whether after consideration of all the relevant factors, proposed project is within the public interest

water dependent? EPA

EPA regs (pg 131 - 32)

¤ 230.10

NO discharge allowed IF practical alternative which would have a less adverse impact

practical = available and capable of being done AFTER taking into consideration cost, existing tech and logistics in light of overall project purpose

where the activity does NOT water dependent THEN the practical alternative that doe not involve water are presumed available UNLESS clearly demonstrated otherwise

regs = IF NOT water dependent, than practical alternative is persumed

EPA can separate water dependent from non water dependent uses in issuing permits

need not look at project as a whole

James City County v EPA (1990) permit granting by Corps to discharge fill in a wetlands area and EPA vetoed permit

ct found veto improper bc EPA ONLY suggested BUT did not prove that practicable alternative actually existed

the presumption of availability of practical alternatives under ¤ 404 is NOT applicable where the activity associated with the discharge is water dependent

Friends of the Earth v Hintz (1986 9th Cir): a project is water dependent when it is adjacent to the ship loading facility

Bersani v EPA (2d Cir 1988): need to demonstrate that use of upland were considered before use of wetlands

ONLY consider sites available at the time of filing permit application

ONLY IF NO PRACTICAL ALTERNATIVES then sometimes allow permit for wetlands

Mitigation? Corps

Corps regs (pg 132)

¤ 320.4

mitigation = review and balancing process of permit applications

3 categories

project modifications to minimize adverse project impacts

further mitigation measures

other

all compensatory mitigation will be for significant resource losses which are

specifically identifiable,

reasonably likely to occur

AND of importance to human or aquatic environment

EPA said that mitigation could only be considered as a last step

EPA sequencing approach

determine that potential adverse impacts have been avoided to the max extent practicable

determine that any unavoidable impacts are minimized

compensatory mitigation must be required for any unavoidable losses of special aquatic sties

mitigation can refer to either

methods of reducing potential harm to or destruction of wetlands

ways of repairing, restoring or compensating for damage to wetlands

included with mitigation are . . .

restoration: repairing or re-establishing an existing wetlands area

enhancement: improving the quality of an existing wetlands area to make it more suitable for add species

creation: establishing wetlands where none existed before

judicial review of corps permit decisions under NEPA

reviewed under ¤ 705 APA: arb + cap

affirming agency decision so long as a rational basis is presented for the decision reached

Remedies

Cease and Desist orders

civil, criminal and admin penalties

injunctions (criteria)

substantial likelihood that P will prevail on the merits

substantial threat that P will suffer irreparable injury if the injunction is not granted

threatened injury to P outweighs the threatened harm to injunction may do the D

granting the prelim injunction will not hurt the public interest

restoration orders (criteria)

maximum environmental benefits in restoring the harm

methodologically feasible and cost eff

equitable relation to the wrong committed

citizen suits: Citizens may commence a suit upon own behalf v. another citizen OR EPA not property performing functions

state protection of wetlands

some permit issuing auth is transferred to states under ¤ 404 -- then the EPA and Corps monitor state activity

completely state plans are limited to non-nav waters and wetlands not connected with nav waters

criteria for coastal development

water dependency issues

Coastal Zone Management Act (CZMA) requires states to identify their coastal management programs

1000 Friends (1987 OR CZM): a comprehensive plan for Tillamook county challenged

Goal 16 auth dredge and fill operations under the following conditions

EXCEPTION to criteria: variance that allows state land use goal requirements to be waived where for some compelling reasons it is not possible to apply the appropriate goal to specific prop or situations

county MUST comply with each goal unless can justify the exception

Ct here says that cannot break up the integrity of the plan by separating it to find alternative sites

opposite finding of ¤ 404 where CAN separate

Eastlake (WA CZM): office building in Seattle which questioned whether development would run against Shoreline Management act

question of whether there is a water dep use

statute does NOT require that the water dep use is integral

the rowing club in building is enough to proceed

cumulative and secondary impacts

secondary impact: those that may result from the permitted activity itself

cumulative impact: impacts that may result from the additive effects of many similar projects

at least some of the clmed impacts could be considered under BOTH category

additional dredge and fill projects (cum)

AND projects or developments that may be facilitated by the installation of the pipe (sec)

Conservancy Inc (FL CZM): permit for dredge and fill in order to put in a pipeline on a coastal barrier island

cum impact doctrine: to show entitle to a dredge and fill MUST SHOW

has provided reasonable assurance that water quality stds will NOT be violated

not contrary to the public interest

take into consideration the cum impacts of sim projects

giving a reasonable assurance that cum impacts do NOT cause a project to be contrary to the public interest or violate water quality stds

in this situation need to consider sec impacts, even though usually only consider cum impacts

Public Access

Nollan (CA CZM): P owned beachfront prop and comm said permit condition of an easement rt (takings) to build

NO taking IF land use substantially advances legit state interests AND does NOT deny an owner economically viable use of his land

permit condition that serves the same legit police power purpose as a refusal to issue a permit is not a taking

the lack of a nexus between the condition and the original purpose of the building restriction must be considered

Dolan (OR 1994 US Sup Ct): rough proportionality test

the govt MUST make some sort of individualized determination that the exaction is related

BOTH in nature and extent to the impact of the proposed development

Takings

Stevens v. Cannon Beach: OR Sup Ct (1993): permit to build seawall in anticipation of future development of area denied -- conditional permit

custom so NEVER had prop rt in the first place

custom goes back to time in memorial

NO taking

Stevens -- cert denied by Sup Ct (Scalia and OÕConnor)

one of the things Scalia did not like here was the way the OR Sup Ct set out the custom going back so far

consider in connection with Lucas

Lucas (US Sup Ct 1992): regs said owner could not put permanent structures on land on coast in SC

assumed that prop had LOST all value by the 1988 Beachfront Management Act

is all the VALUE of the land lost?

economic value

there was probably SOME value of the land left

IF rendered valueless = taking

IF it is NOT rendering it valueless, Lucas does NOT apply

3 factors of Penn Central

look at the economic impact of the reg

maybe not the full value of the prop, but enough was lost

look at interference at the investment backed expectations

character of the govt action

MUST substantially advance a legit state interest

essential nexus between the stateÕs interest and its chosen means

IF all value gone, then still an exception (illustrated in Stevens) of custom

Lucas is ONLY saying that investment backed expectations must be basically completely lost in order to require compensation for the value of the prop

beach management options for caring and protecting prop, people and beaches

restoration: reestablishment of a sandy shoreline by dumping or pumping offshore sand on the beach

high cost

does little to alleviate the stresses on the beaches

BUT is needed bc of the great public use

amoring: seawalls, rip-rap, other fixed structures intended to stabilize the shore

may increase erosion on other beaches

only one solution but not the preferred method

retreat:

necessary where the beaches are too dynamic, when economic costs too high or environmental concerns outweigh justifications for other options

Esposito v SC Coastal Council (1991 SC): Beachfront Management Act which meant that P with prop on Hilton Head could not rebuild after building were destroyed beyond repair (had not happened yet)

in the FUTURE bc of this act, they could loose the value of their prop bc could not build again after the prop was destroyed

IF you have developed prop which is faced seaward

you are not allowed to rebuild

the Ct says, that they are STILL there and they have NOT lost all the value of their prop at this time

the prop has yet to be destroyed so it still has the value

probably does lose SOME value bc would no longer be able to rebuild, but NOT all the value

International Ocean Law

pre - 1982 zones of national auth of the sea

pg 264 diagram of zones

internal waters: waters which are legally just like land except in liquid form

means the US or other country could legally prohibit whatever it wants from that area (ex: not allow any other countryÕs boats within waters)

absolute rt

baseline: distance is based upon the country

normal = mean low water line of the coast

non-normal = outer pts of especially convoluted coastlines (across river mouths, bays and complex coastlines)

territorial sea: each country has sov over the waters, seabed, living and mineral resources and airspace over it

key diff with internal waters = gen passage of foreign vessels which do not threaten peace or security allowed

3 miles

contiguous zone: assertion of various sov auth rts, it does NOT allow substantive laws in the zone ONLY enforcement actions

9 miles

enforcement juris to prevent and punish violations of its customs, fiscal, immigration and sanitary laws,

continental shelf: coastal nationÕs sov rts in the natural resources of the seabed and subsoil on the continental shelves adjacent to their coasts

sov rts = between sov and juris

rt to explore the cont shelves and exclusive rt to the resources

high seas: the area seaward of the outer boundary of the territorial seas

other nations allowed

freedom of nav

freedom to fish

freedom of overflight

freedom to lay cables and pipelines

went all the way up to the 3 mile terr sea

= boats could come all the way up to the 3 mile pt

deep sea bed and continental shelf are under the high seas

post - 1982 UN Convention zones of auth of the sea

pg 273 = new map of sea

baseline and internal waters: NOT chged at all

territorial sea: 12 miles

US concern that submarines would have to surface and show flags

BUT got international straits = US made a deal to extend territorial seas IF subs thru straits would not be required to surface

still have absolute sov subject ONLY to the rt of innocent passaage by foreign vessels (mostly ABOVE waters)

example of how unilateral NATIONAL moves becomes international custom

extension of the terr sea by the US in the late 40Õs to encompass some the continental shelf

other countries followed

so became custom = law of the sea

contiguous zone:

12 miles

compare (new) 12 mile terr sea + 12 mile more contig zone v. (old) 3 mile terr sea + 9 mile contig zone

rt now the contig zone is obscured bc the 12 mile terr sea which sort of goes over the top ofthe 9 mile contig zone which is accepted at this time by the US

seems that the US would WANT to extend the contig zone bc this zone = extended rts of the country and its laws

even though the US has not agreed to it, custom appears to have overtaken to the outer line (except for the US?)

continental shelf: remain basically the same qualitatively

BUT have EXPANDED amt of lands covered

about oil and gas deposits

STILL limited to natural resources of seabed and subsoil

EEZ: nations do NOT have sovereignty BUT do have sov rts in the resources and activities carried out

200 miles

BASICALLY, countries benefit from

ALL the resources

AND have exclusive control of those resources out to that 200 mile pt

US has the biggest EEZ in the world so ben the MOST

and also the FEWEST overlaps with other countries

starts from the seaward edge of the territorial sea (so actually becomes 188 miles (200 - 12 miles))

also pg 276 --convention lang

says that countries have rts of sov

which ALSO includes resp to protect the environmental rts of that area as well

fishing rts

some fish species are migratory

that makes it hard to determine who owns them

marine scientific resources

artificial structures

high seas: traditional freedoms of the sea are intact

see pg 283

Division of Authority over US waters

question of ownership of resources in the terr sea between fed and state govt

US v CA (1947 US Sup Ct): CA leasing out rts to go after gas, oil, minerals . . . without permission of the US fed govt

HOLDING: the fed govt does CONTROL the sea resources

fed govt rather than the state has the paramount rts in and power over the belt

paramount rts: full dominion over the resources of the soil under the water area

Submerged Land Act (SLA)

Congress overruled US v CA and gave the resources to the state under the SLA

gives states BROAD auth over allocation of resources

REMEMBER the statute sets out the 3 miles (extension of the terr sea to 12 miles does not apply to this act!)

statute (pg 292 - 94)

¤ 1301 definitions

lands beneath nav waters

lands within boundaries of US which are covered by nontidal waters that were nav at the time state joined union

all waters permanently covered by tidal waters out to 3 geographical miles

does NOT include: beds of streams in public lands of US

natural resources = living and non-living resources

coast line = broad def of how far inland it goes

¤ 1311 right of the states

title and ownership to the states of lands and nat resources

and rt to manage lands and resouces

¤ 1314 left some rts to the US fed govt

commerce,

nav,

national defense

international affairs

boundary disputes

def of inland waters under ¤ 1301(c)

Sup Ct in US v CA (1965): TEST for inland water

IF the area of a bay in nature is greater than the area of the semicircle formed with the distance between the headlands as a diameter,

IF the area of the bay is less than the area of the semicircle, or the bay is an open bay and the boundary line of inland waters would be the ordinary low water mark following the sinuosiites of the coast

?????? pg 295

Outer Continental Shelf Land Act (OCS)

stages

leasing plan by Sec

5 year plan (current 5 year plan limits for waters of Alaska, WA and OR)

Sec review must meet NEPA and ESA stds

also must have state gov review

lease sales

purchasing lease entails no rt to proceed with full exploration, development, or production

the lessee acquires ONLY a priority in submitting plans to conduct these activities

exploration by lessees

need exploration plan and environ report

development and production

termination (Hildreth added this)

lease sales

Akutan v Hodel (1989): lease sales in Alaska which were too big

cts have only arb and cap review of agency decisions

the amt and specificity of info necessary to meet NEPA requirements varies at each OCS stage

does not require that ct determine whether EIS based on the best scientific methodology avail

does NOT require EIS to disclose all assumptions underlying a particular methodology

ESA = cts review is only arb and cap of SecÕs review of ESA stds that need to be met to protect

MA v Andrus (1979): coastal and ocean fisheries and poll = management question

Sec has a duty to see the gas and oil exploration . . . is conducted without unreasonable risk to fisheries

INCLUDES obligation NOT to go forward with lease sales in a particular area IF it would create unreasonable risks in spite of all feasible safeguards

balancing of competing interests

Ct MUST give deference to the Sec = reasonable decision std

settlement negotiated pg 318

termination

¤ 1334(a) (pg 324-25): suspension and termination of leases

(1) suspension of lease

at request of lessee in the national interest

OR IF there is serious harm to prop, mineral deposits or marine, coastal or human environment

MA v Andrus = wonÕt cause unreasonable risk to fisheries

(2) cancellation of leases

Sec shall do after a hearing

cannot do until have been under suspension or temp prohibition ((1))

cancellation shall entitle lessee to receive such comp as shows Sec to be

fair value of canceled rts

OR excess over the lesseeÕs revenues from the lease of all consideration pd for lease and all direct expenditures

Union Oil v Morton (1975): oil co pd $61 mill for oil and gas rts in ocean in form of lease sanctioned under OCS then after oil spill, lease suspended for environ reasons

Sec may prescribe at ANY time rules which are nec for the conservation of nat resources

Congress did NOT intend leases to be tenuous that Sec can term at will

takings issue bc suspension of rts = cancellation of lease

a suspension whose term was conditioned on the occurrence of events or the discovery of new knowledge which can be anticipated within reasonable period of time would be a valid exercise of reg power and NOT a taking

remanded to find out if taking (found by lower ct)

responsibility of management under OCS

primary = oil and gas resources management (leasing oil and gas resources), also ocean mineral mining

other = management of living and non living resources

most environmental issues under OCS are based upon

NEPA= procedural

EIS

ONLY specifically set out in ¤ 1351(e)(1)

mandated for the development and production stage

jud review -- the cts are only going to look at unreasonable or arb and cap decision making

IF close case going to balance between the perceived need and the chance of harm

CZMA

VERY diff from other fed reg acts

state participation is vol

fed stds or management NOT imposed IF state does not develop a plan

consider the ABOVE cases on CZMA and water dependency

encourage states

thru $$

get the states to do more planning and managing of the coastal systems

state plans can be unique

¤ 1452 policy

preserve, protect and develop resources of nations coastal zone

encourage and assist states to exercise resp in coastal zone

def of coastal zone

coastal waters

AND adjacent shore lands strongly influenced by each other (BROAD)

3 mile limit (same as SLA)

inland to the extent necessary to control shore lands

EXCLUDES: fed govt lands (subject only to fed govt)

CA Coastal Commission v Granite Rock Co: mining of fed forest land

even if ALL fed lands are excluded from the CZMA def of coastal zone the CZMA does NOT automatically preempt state regs for activities on fed lands

Norfolk Southern Corp v Oberly (3rd Cir 1987): DE CZA and issue of industry using waters

classic dormant Commerce Clause Case

dormant commerce clause issue

defense to commerce clause challenge = Congressional consent

ONLY where Congress has expressly contemplated otherwise invalid state leg

AND where state govt action specifically authorized by Congress

balancing test

IF statute regulates neutrally and imposes only incidental burdens on interstate commerce

THEN not allowed IF

burden on commerce

v. local benefits

approval of state plans

¤ 1455(d) approving state management programs (pg 168-69 and 176-77)

(2) management programs MUST include: (pg 176)

identification of boundaries of coastal zone

def fo what is permissible land use

. . . .

planning process for energy facilities

(3) the state has

coordinated program with local level and interstate plans

established effective mechanism for continuing consultation and coordination between state and local agencies

(8) program provides for adequate consideration for the national interest including energy facilities

(9) ***

(10) state authority under plans is . . .

(12) program contains method of assuing local land use and water use regs

American Petroleum Institute v Knecht (1979 CA): CA plan challenged as not acceptable under CZMA

management program under act = program contains stds suff specificity to guide public and private policy

CA program acceptable under this

state act must have adequate consideration of national interests and energy facilities

CZMA leaves development of plans and decisions under plans to the states

Program Amendments

¤ 1455(e) a state may modify its plan:

MUST notify Sec

Sec will make decision within 30 days

state cannot implement chg UNLESS approved by Sec

IF prelim approval, state may start to implement

cts interpret as strictly prohibiting further CZMA grants until state plan chgs have been approved

supplemental EIS must be prepared for chgs IF significantly affect the environment in qualitative or quantitative terms

Consistency Requirement

fed consistency requirement provides the major incentive for states to continue and maintain their programs

¤ 307(c) = fed actions and activities directly affecting the coastal zone be conducted in a manner consistent with a state coastal plan

OLD: Sec of Interior v CA: lease sales OUTSIDE the Coastal Zone of the US do NOT have to be consistent

NEW: anything which directly affects the coast, is under the CZMA

chart pg 180-81

CZMA ¤ 307(c) (pg 183 - 84)

(1) fed agency activities which affect any land, water or nat resources

consistent to the max extent practicable

with enforceable policies approved by the state

Pres may exempt from compliance for paramount interests ONLY

fed finding no later than 90 days

(2) fed agency with development project

consistent to the max extent practicable

(3)(A) private interest (non-govt) applicants for fed permits

MUST provide in fed apps that

proposed activity complies with state

AND activity is consistent with state

Fed govt CANNOT grant permit UNTIL state agrees

UNLESS Sec finds finds after reasonable opp for comment that activity is consistent OR in national interest

(B) private interest with plan for exploration and development under OCS ***

MUST provide in plan that

complies with state

consistent with state

UNLESS Sec finds that must be allowed for national security

courts are split on consistency finding (remember -- 2 cases PRIOR to 1990 Amends!!!!)

Kean v Watt (1982): considering consistency of state coastal management program with fed requirements

act is about protection of natural resources

NOT about concern for economic hlth of a certain ind

fed agencies which affect commercial activities but do NOT affect nat resources do not fall within ¤ 307(c)(1) of the CZMA

Conservation Law Foundation v Watt (1983): sale of lease in outer continental shelf

consider ecological as well as social and economic effects

social and economic pressures are PART of consistency

EPAÕs conditional funding

¤ 1458 Sec may suspend payment IF (pg 196)

state failing to adhere to paln

OR state failing to adhere to terms of fed grant

Cape May Greene Inc v Warren (1983): EPA put condition of denial of new hookups on sensitive lands to get funding for indispensable sewage system

CANNOT require state to do this, IF already consistent in their plan

(opposite) Shanty Town Ass Inc v EPA (1988): condition on a fed grant for limited access by new development to fed funded project

Congress intended that ultimate resp for the regs of land use in the coastal zones to remain with the states

CZMA intended to complement the protection afforded the coastal zone by the FWPCA and other fed environmental statutes

to find inconsistent need

conditions flatly inconsistent with the stateÕs interpretation of its own fed-approved CZMA

AND conditions by fed agency MUST be directly related to the goals of the statute

Loveladies Harbour v Baldwin (1984): prop owners received a state permit but were refused fed permit to fill in wetlands

the consistency provision fo the CZMA does NOT require that the Corps blind itself to fed environmental needs simply bc the state has done so

Corps decision must only be consistent as practicable --

Corps MAY deny permit IF suff reason under statute

consistency appeal of Chevron USA Inc (1993):

In appeals process, Sec MUST find

consistency (4 elements)

activity furthers one or more of the competing national objectives in the CZMA

activity will NOT cause adverse eff on the nat resources of coastal zone substantial enough to outweigh contrib to national interest

activity will NOT violate CAA or CWA

no reasonable alternative available which would permit activity to be conducted in manner consistent with state plan

OR that otherwise necessary to national interest

national defense or other nat security interest would be significantly impaired if activity were NOT permitted

Marine Mammals Protection Act

moratorium on the taking of marine mammals

covers ALL marine mammals

BUT especially protective of depleted species of marine mammals

does NOT differentiate between whether a mammal is threatened or endangered

Optimum sustainable population (OSP)

IF below, considered depleted under the Act and limited what kind of takings allowed

depends on species what the level is

stacked in favour of the species

NA can take under MMPA IF (pg 426 - 27)

takes permits for oil and gas development BUT requires

application

Sec must ensure that take

has only negligible impact

AND will not have an unmitigatable impact

take permit for commercial fishing allowed for incidental or unintentional takes

allowed in 2 circumstances

fisheries (US or foreign) which cause LARGE #Õs of deaths

general permit

smaller fisheries

NOTHING required

a GOAL = incidental kill of marine mammals permited in the course of comm fishery operations be reduced to insignificant levels approaching ZERO

Kokechik FishermenÕs Ass (1988): permit for Japanese fishery to take a certain # of mammals with gill net fishing

Congress meant to be protective

Sec MUST determine the permit application has carried the burden of proving that the taking sought does NOT disadvantage the species involved and is consistent with the policies and purposes of MMPA

NO balancing of interest allowed

The interest of maintaining hlthy pop of marine mammals come first

pg 441 = 1994 Amend to MMPA

ESA

¤ 7: each fed agency shall in consultation with and with the assitance of the Sec insure that any action auth, funded or carried out by such agency . . . is not likely to jeopardize the cont existence of any ES or threatened species or result in the destruction or modification of habitat of such species which is determined to be critical

¤ 9: prohibits any person or govt entity subject to US juris from taking any species listed as endangered = similar to MMPA

means fed AND state agencies MUST comply

incidental take permit process = similar to MMPA

requires designation of critical habitat at the time that a species is listed as endangered or threatened

LA v Verity (1988): sea turtles and TEDs (turtle excluder devices)

cts std is only arg and cap = must defer to the agency

here the agency has presented scientifically respectable conclusions, and ct CANNOT displace admin choice

Prevention of Ocean Pollution

Ports and Waterways Safety Act pg 509 - 12

Vessel Construction

Traffic Control

Oil Tanker Design

Ray v Atlantic Richfield Co (1978 US Sup Ct): WA state law v. fed law (PWSA) about the size of oil tankers and the tug-escort requirements

there must be DIRECT conflict with a valid fed statute

conflict = where compliance with both fed and state regs is a physical impossibility or where the state law as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress

Congress intended uniform nat stds for design and construction of oil tankers

design stds interfere with the PWSA

tug escort is NOT a design requirement and allowed

Ocean Dumping Act

Titles I and II of the Marine Protection Research and Sanctuaries Act (MPRSA)

regulating the dumping of materials into ocean waters

materials: any variety of waste, except for vessel wastes reg under the CWA and intentionally dumped oil (CWA)

prohibits UNLESS there is a permit

trans from US of materials for purpose of dumping

AND dumping materials transported from outside the US into the territorial sea

Corps issues permits

AND EPA has overriding veto power

criteria to determine whether a particular dumping will unreasonably degrade or endanger human hlth, welfare . . .

¤ 505: preserves statesÕ rts to adopt or enforce any requirements respecting dumping of materials into state ocean waters EXCEPT with regard to fed projects where EPA makes specified findings

CWA and pt source ocean discharges

¤ 403: regs discharge of non-dredge materials from onshore outfall pipes from all single discharge pts within the terr sea and from pt sources other than vessels out to 12 miles

¤ 404; regs discharges of dredged materials into nav waters and auth Corps to issue permits for the discharge of dredged material or fill material at specified disposal sites in nav waters (see earlier in outline?)

National Marine Sanctuaries Program

Title III of the MPRSA

purpose = identify marine areas of sp nat or international significance due to its resource or human use values and provide auth for comprehensive conservation and management of such areas where existing reg auth is inadequate to assure coordinated conservation and management

identifies the importance of maintaining and restoring living resources by providing places for species that depend upon these marine areas to survive

pg 526 = unlawful acts

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