Consistency is the hobgoblin of Louisiana coastal policy*

in People Issues by Admin — December 6, 2009 at 11:03 am | 5 comments

A high level corps official struggles with Bobby Jindal over the so-called federal consistency provision of the Coastal Zone Management Act (CZMA)

Editor’s note: As noted in a recent post, Scott Angelle, Secretary of the Louisiana Department of Natural Resources (DNR), sent a detailed letter to Gary Locke, Secretary of the US Department of Commerce, urging him to intervene to change the policy of the US Army Corps of Engineers (corps) re the disposal of the sediment dredged from navigation channels. The Environmental Defense Fund (EDF) and the National Wildlife Federation (NWF) simultaneously sent Secretary Locke a letter of support for the state position, i.e., to require that considerably more of the dredged sediment would be used beneficially to restore wetlands and barrier shorelines. This action by the state is BIG, as discussed below in an email exchange among five coastal authorities.

Background

In 1972 the federal Coastal Zone Management Act (CZMA) was signed into law by President Nixon. Almost thirty years ago, in 1980, Louisiana’s Coastal Zone Management Program (CZMP) was formally approved under this act. The program, now called The Louisiana Coastal Resources Program (LCRP), is administered for the state by DNR and on the federal side by the National Oceanographic and Atmospheric Administration (NOAA), under the Department of Commerce.**

Louisiana’s LCPR established an official coastal zone boundary and a coastal use permits (CUP) program with the authority to regulate development activities within this boundary, so as to protect and conserve coastal resources. A unique and fundamental aspect of all state coastal management programs, including Louisiana’s, is the so-called Federal Consistency Provision, which gives each state the authority to ensure that all federal actions within its coastal zone (including channel dredging) are consistent with the state objectives. Federal consistency is defined as follows:

Federal consistency is the CZMA requirement where federal agency activities that have reasonably foreseeable effects on any land or water use or natural resource of the coastal zone (also referred to as coastal uses or resources and coastal effects) must be consistent to the maximum extent practicable with the enforceable policies of a coastal state’s federally approved coastal management program.  (Federal agency activities are activities and development projects performed by a federal agency, or a contractor for the benefit of a federal agency).

The corps manages ten major navigation channels through coastal Louisiana, including Southwest Pass (SWP). The state has long argued that the annual loss into deep water of 5 to 20 million cubic yards of dredge “spoil” from SWP is inconsistent with the LCRP, which calls for the beneficial use of such sediments (to the maximum extent practicable). Recovering and placing these sediments to restore coastal wetlands and barrier shorelines would dramatically increase the cost of channel maintenance. The corps argues that they operate under a federal standard which requires use of the most economical (i.e., cheapest) sediment disposal method. The rub, of course, is that what is cheap in the short run is arguably the most costly in the long run as the coast disappears.

Five coastal experts (A, B, C, D, E) comment on federal consistency, particularly with respect to channel maintenance

A) Other states have used consistency to prevent offshore drilling, challenge water management practices in watersheds shared with other states, stop sales of federal property and halt the implementation of federal regulations. In many cases it has been used as a bargaining tool and/or as delaying action until the state’s congressional delegation can take legislative action on the issue.

Louisiana has been loathe to use the threat of consistency to steer federal policy, with two notable exceptions. Governor Kathleen Blanco raised the consistency issue over a commercial permit application to pump huge volumes of unfiltered coastal water to process Liquified Natural Gas (LNG). The application was withdrawn. Senator Mary Landrieu used the consistency argument to support legislation for revenue sharing to coastal states from offshore oil and gas production (Coastal Energy Impact Program, or CEIP).

B) As you may recall, twenty years ago, David Soileau, then assistant secretary of DNR, raised the consistency threat to force the corps to beneficially use sediments dredged from the Mississippi River Gulf Outlet (MRGO). This was noted in the press and the environmental community prepared to intervene in a lawsuit we thought the state would bring, when the Corps dissed the request and ceded. Obviously the corps regulation is inconsistent with coastal restoration, and with the NOAA guidelines on maintenance dredging.

Next step, the oil and gas industry. Talk about past and continuing harm…  There is a huge debt out there, and I’m not sure the American taxpayer has the appetite to pay it.

C) Having been involved with the LCRP in the ’70s, ’80s and ’90s I am extremely happy with DNR’s action. Next year will mark the 30th anniversary of  the LCRP. At the time it was approved, I thought it might  last five years, considering the array of  special interests opposed to it; what a miracle that it still exists.

First: The beneficial use policy on dredged sediments has been enforceable in the LCRP since this program was approved in 1980, but the corps, first through sheer denial and later through elaborate schemes, has danced around the issue. Think of the coastal acreage that could have been recreated over three decades of channel dredging.

Second: Louisiana’s strong use of “federal consistency” is consistent with the intent of those who drafted the federal law. But, as we all know, effective coastal management requires constant vigilance.

D) I will be meeting on this issue with the Attorney General, DNR officials and the attorney who handled a North Carolina lawsuit against the Corps for mismanaging dredged materials. We will discuss the state strategy if the Corps refuses mediation, which I believe is likely.

E) I agree that this is a very important and timely development, and one that I welcome. We should revisit the history of the issue. The state’s views on consistency re dredge materials have waxed and waned over time while the corps’ views haven’t, to the best of my knowledge.

The corps feels that maintenance dredging is not subject to the consistency provisions of the CZMA. Their position has been that maintenance dredging on authorized channels falls within the definition of a “federal development project,” which is exempt from the consistency provisions of CZMA as spelled out in 15 CFR 930 et seq.  While that is undoubtedly a narrow reading of the regulation and the law, it is one that will likely be receive deference.

D) I believe that the law requires federal development projects to be consistent to the maximum extent practicable.

B) With all due respect, there is no way that the Corps’ interpretation of NOAA’s regulations is correct. Maintenance dredging is plainly included in the law. And since this is not the Corps’ own regulation, but rather that of another agency, the Corps’ interpretation should carry less deference.  I agree with (E’s) suggestion that NOAA’s opinion be solicited.  I have a copy of the interpretation by Joe Towers (general counsel for the Corps) of the regulation in response to MRGO dredging in the l980’s, and it is pathetic. It mis-cites the applicable provisions and in my opinion would not pass any scrutiny I can imagine.

The NOAA regulations define maximum extent practicable in quite limiting terms. On the other hand the state seems unwilling to impose significant additional costs on private dredging applicants to avoid environmental impacts, according to the interpretation of the same phrase in Louisiana coastal use guideline 1.8. As (E) says, the State has blown very hot and cold here, mostly cold.

Exorbitant additional costs will be probably be projected but additional costs should be compared to the costs of restoring the same wetland area by other means, at which point they may not be exorbitant at all.

D) Interesting legal discussion, but I’d like to throw in a little bit about the actual case. The Corps spoil disposal practice at Head of Passes is not only wasteful, it is actually blocking sediment from going through the passes on the eastern side of the River and out into the Delta National Wildlife Refuge and the Pass A Loutre (state) wildlife refuge, causing sediment starvation and deterioration of the marshes in those refuges.

This is the opinion of biologists, geologists, and engineers of USFWS, LDWF, and LDNR)  These two wildlife refuges have been established to accomplish a particular public purpose, which is now being impeded by the actions of another public agency.  This is particularly irksome to me, but others apparently do not feel my outrage.

The Corps prefers to ignore the real damage it is causing and make the issue seem to be merely about the cost of spoil disposal, and this gambit seems to be working for them. They hold that doing anything else will cause all navigation on the River to stop and they say the magic words, “If we can’t do this we’re going to lose the channel!”  This tactic has always worked for them, so why change?

After all, why would you throw a long pass, and risk an interception, when you gain 10 yards every time you run it up the middle?

By the way, NOAA/NOS/CPD is very likely to side with the Corps. They have lost sight of the original intent of CZMA and tend to come down on the federal side of most issues these days. If the case slips past NOS/CPD and goes directly to the general counsel of the Secretary of the Department of Commerce, it is likely that they will focus on the commerce side of the question because their legal speciality is commerce, not the environment.

The Coastal Management Division of DNR has always been strong on this issue but political support has varied under different administrations. The current officials could really use backing because you can bet that they are feeling pressure from the navigation industry and probably the Louisiana congressional delegation.

I never thought the CZMP would last 30 years, either. I wonder how (former congressman) Billy Tauzin feels now about authoring the bill?

A) I have noticed that many people who comment on media stories related to state consistency findings on Corps activities tend to have a common theme, which is that the state has no standing, because state law cannot trump federal law. Actually, part of that statement is correct, but when Louisiana (or any other state with a federally approved Coastal Zone Management Program) uses federal consistency to challenge a federal activity, it is using a federal law – the Coastal Zone Management Act.

Louisiana is essentially implementing CZMA when it makes any consistency finding, including Coastal Use Permits (CUPs), which are issued pursuant to state law. CUPs are also considered to be findings of consistency for the uses concerned, which allows federal permitting agencies (usually the Corps) to issue permits that are at least as restrictive as the states.

If the state approves a permit the Corps can still deny it, but not conversely.  The state makes approximately 2,300 consistency findings per year (based on the assumption of 1900 CUPs and 400 reviews of federal activities annually). I have a good handle on CUP numbers, but I may be off (under) by an order of magnitude on federal reviews. Anyway, the state rarely makes an inconsistency finding.

Len Bahr (len.bahr@gmail.com)

*A foolish consistency is the hobgoblin of little minds (Ralph Waldo Emerson, Self Reliance).

**Hence DNR Secretary Angelle’s letter to Commerce Secretary Locke.