The SMA and federal/tribal activities

Introduction

The requirements of the SMA apply to private projects on privately owned lands, and to private, local government, and state government actions on local or state government lands. The application of the SMA to federal and tribal lands is a more complex question. State rules address application of the SMA to federal lands at WAC 173-27-060.

The general rule is that the federal government is immune to state and local permits. However, Congress has waived this federal immunity under certain circumstances. For example, the Federal Clean Water Act requires federal agencies to obtain state water quality permits. Because federal courts have held that shoreline permits are water quality permits, federal agency projects that affect water quality may be required to obtain shoreline permits. [See Friends of the Earth v. U.S. Navy, 841 F.2d 927(C.A. 9, 1988)].

Coastal Zone Management Act

The federal Coastal Zone Management Act (CZMA) requires that Federal agency activities that affect coastal zone land uses, water uses, or natural resources must be consistent with Washington’s Coastal Zone Management Program. Washington’s approved Coastal Zone Management Program includes:

Shoreline Management Act (including approved local government shoreline master programs)
State Environmental Policy Act (SEPA)
Water Pollution Control Act
Clean Air Act
Ocean Resources Management Act
Washington State Energy Facility Site Evaluation Council (EFSEC) Act.

Washington’s coastal zone is comprised of the 15 counties that border on saltwater shorelines: Clallam, Grays Harbor, Island, Jefferson, King, Kitsap, Mason, Pacific, Pierce, San Juan, Skagit, Snohomish, Thurston, Wahkiakum, and Whatcom counties.

The requirements of the CZMA apply whether the activities or developments are within or outside the Coastal Zone. Activities and developments outside the 15 coastal zone counties are generally presumed not to affect the Coastal Zone. However if such actions are of sufficient magnitude as to impact coastal resources, then a consistency determination is necessary.

The process of determining whether a federal agency action is consistent with Washington’s Coastal Zone Management Program is determined through a combination of federal and state regulations. Ecology is designated as the state agency with responsibility for deciding whether federal actions are consistent.

Federal Agencies that determine that a project, activity or action may affect coastal resources are required to make a determination of the consistency of the proposal with the State’s Program and submit it to Ecology. The nature of the action then determines how the proposal is reviewed for consistency.

For more information on the Federal Coastal Zone Management Act ( 16 USC 1451 et seq...) visit the Office of Ocean and Coastal Resource Management.

Federal Activities

A federal activity is any function performed by or for a federal agency. Examples of federal activities include adopting a management plan for a wildlife sanctuary and operating a Coast Guard station.

A federal development project is an activity that involves the planning or construction of buildings and structures or the purchase or use of land or water resources. Dredging a new navigation channel or purchasing land for a recreation area are examples of federal development projects.

Decisions on federal permits and grants are not considered federal activities.

Federal activities or development projects that affect any land use, water use or natural resource of the coastal zone must be consistent with the Washington Coastal Zone Management Program to the “maximum extent practicable.” Federal regulations define “maximum extent practicable” to mean that the federal activity or project must be fully consistent with the state program unless federal agency compliance is prohibited by an existing federal law.

The federal agency sends a consistency determination to Ecology. Ecology has 60 days to agree or disagree. In keeping with the state-local partnership established in the SMA, the provisions of WAC 173-27-060 requires that Ecology consult with the affected local government before responding.

Local government may require review through the permit process if deemed necessary to make a determination of consistency with the SMP, express its opinion on consistency directly including any conditions that may be required to achieve consistency or it may waive review altogether.

Federal Permits and Licenses

A federal agency cannot approve a permit or a license for a project that affects any land use, water use or natural resource of the coastal zone unless Ecology agrees that the project is consistent with the Coastal Zone Management Program. If Ecology does not respond within six months of receiving the required information, Ecology is presumed to agree that the project is consistent.

For U.S. Army Corps of Engineers Section 404 and Section 10 permits, applicants who are not federal agencies only need to apply for a permit from the Corps. The Corps forwards the application to Ecology. Section 404 permits regulate dredging and filling. Section 10 permits regulate developments in navigable waters. For other federal permits, the applicant contacts Ecology directly.

Ecology reviews the federal permits for consistency with the SMA. Where a permit is required for the project by the terms of the SMA or local SMP (Conditional Use Permits or Variances) then Ecology requires that the permit be submitted as a basis for the determination. Where the project is exempt from the permit requirements, the Ecology requires that local government review the project and submit a letter of exemption documenting that it has reviewed the project and made a determination of its consistency with the SMP.

Federal Grants and Loans

State and local governments applying for federal grants or loans for projects that affect any land use, water use or natural resource of the coastal zone must request that Ecology review the project for consistency. The applicant must provide the federal funding agency with Ecology’s decision. The federal agency cannot approve a grant or loan that is inconsistent with the Coastal Zone Management Program.

Outer Continental Shelf Energy Activities

Federal law defines the outer continental shelf as the part of the ocean more than three miles from the shore out to about 200 miles. The outer continental shelf is not part of the coastal zone. However, if energy activities in the outer continental shelf affect any land use, water use or natural resource of the coastal zone, then the activities must be consistent with the state Coastal Zone Management Program. Energy activities include oil and gas lease sales, exploration, and production.

Appeals

Applicants for federal permits, approvals, grants, and loans can appeal Ecology decisions to the Secretary of the U.S. Department of Commerce. The Secretary can overturn Ecology’s decision if the Secretary finds the proposal is consistent with the objectives of the Coastal Zone Management Act or is in the interest of national security. Federal agencies can ask the President to exempt an activity from the CZMA consistency requirement.

Application of Shoreline Permits to Indian Reservations

The application of the SMA to land within Indian reservations is a complex legal issue that should be approached with caution and sensitivity. To date there is no law or court decision that addresses this issue directly nor any that address similar issues in a manner that would establish a clear demarcation for all circumstances. Our best distillation of case law on this is as follows:

Indian tribes have the authority to plan for and regulate tribal trust lands and lands allotted to, and held in trust for, tribal members within their reservations. They also have the authority to regulate land within reservation boundaries owned by non-members in areas where Indians own significant amounts of land and make up a majority of the population.
State and local governments do not have the authority to regulate tribal trust lands and land allotted to and held in trust for tribal members. So, presumably, the SMA and shoreline master programs do not apply to these properties.
State and local governments may regulateland within reservation boundaries that is owned in fee by non-tribal members where non-Indians make up more than half the population and own nearly half the land. So, presumably, the SMA and shoreline master programs do apply to these properties.

However, other circumstances may limit state and local authority over non-Indian land on Indian reservations. In addition, the factors that the courts look to in deciding if local and state governments have authority over land on reservations are unclear and may change. This means that jurisdictional questions require fact specific analysis. Even after such an analysis, the extent of authority may be unclear.

The Department of Ecology recommends a cooperative approach to jurisdictional issues. The State of Washington has a policy of working cooperatively with the Tribes on a Government to Government basis and, based on this policy, Department of Ecology urges local governments to work with Indian tribes and Ecology to cooperatively define the extent of jurisdiction and to coordinate applicable regulations.

Tribal trust lands and lands allotted to and held in trust for tribal members are excluded from the Coastal Zone. However, the Coastal Zone Management Act consistency requirements apply to federal agency activities and Federal Assistance Programs on Indian reservations that affect coastal zone land uses, water uses, or natural resources. This requirement applies to trust lands.

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