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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