e The governor must designate a specific State 
agency to administer the program, 
© The State must demonstrate that it has given, and 
will continue to give, adequate consideration of 
the national interest in siting such things as energy 
facilities, in order to prevent a State from arbi- 
trarily barring facilities from its coastal region; 
e Provision must be made for preserving or re- 
storing particularly valuable coastal areas; and 
e States must have selected one of the following 
three techniques for controlling land and water 
uses in the coastal zone: (1) establishment of 
criteria and standards at the State level for im- 
plementation by local entities, (2) direct State 
land and water use planning and regulation, or (3) 
State administrative review for consistency of any 
development within the coastal zone, with power 
to approve or disapprove. 
In addition, the designated management agency 
must have authority to acquire property through 
condemnation if necessary to achieve conformance 
with the management program. State programs may 
be approved for geographical segments of the coast 
with the approval of the U.S. Secretary of Com- 
merce in order to protect coastal regions that require 
immediate action. 
Federal Consistency 
To round out the coastal States’ authority for 
regulating the use of land and water in the coastal 
zone, Section 307 of the CZMA provides a mechan- 
ism for ensuring that Federal projects and actions 
by the Federal agencies conform with approved 
State coastal zone programs. 
Sections 307(c)(1) and (2) require that activities, 
including development projects, significantly affect- 
ing the coastal zone and conducted or supported by 
Federal agencies shall be consistent with approved 
ae programs to the “maximum extent practica- 
en 
Section 307(c)(3)(A) provides that Federal li- 
censes and permits for activities significantly affect- 
ing land and water uses in the coastal zone may be 
granted only if the State certifies that the activity 
complies with and will be conducted consistently 
with its coastal zone program. This is perhaps the 
most significant consistency provision. Corps of 
Engineers’ dredge or fil! permits under Section 404 
of the Federal Water Pollution Control Act Amend- 
ments and a number of Federal permits required for 
energy facilities in the coastal zone will be subject 
to this provision. Thus, the States have important 
leverage on Federally-registered private activities 
affecting the coastal zone, even if such activities are 
located outside the described zone. 
Section 307(d) prohibits Federal agencies from 
approving State and local grant applications for 
activities significantly affecting the coastal zone that 
are inconsistent with the State’s. approved coastal 
zone management program. An activity for which a 
Federal license, permit, or grant is required is sub- 
ject to the consistency provision, even though located 
outside the coastal zone, as long as the activity sig- 
nificantly affects the coastal zone. There are differ- 
ences in interpretation of this section among Federal 
agencies. 
The operation of these provisions combined with 
the financial support provided for developing and 
administering coastal zone programs are the prin- 
cipal inducements for States to participate in the 
coastal management program. Without the prospect 
of “Federal consistency,” many Federal projects and 
actions would be beyond the contro! and regulation 
of the coastal States. Even with the consistency pro- 
vision, a number of Federal activities may be beyond 
State coastal zone programs. 
The U.S. Secretary of Commerce can override a 
State’s finding of inconsistency with regard to a Fed- 
eral license, permit, or grant, if it is found that the 
project is “necessary in the interest of national secu- 
rity” or that the activity is in fact “consistent with 
the objectives of this . . . [Act].” The implementing 
regulations attempt to confine the Secretary’s over- 
tide to situations where national interest or security 
concerns outweigh coastal management objectives. 
Furthermore, a specific exclusion makes it clear that 
the Act as a whole does not apply to “lands, the use 
of which is by law subject to the discretion . . . of 
the Federal Government.” ** Consistency does apply 
to activities on Federal lands which affect a coastal 
zone. 
These variances, while necessary to preserve the 
flexibility of the Federal agencies to conduct busi- 
ness in the national interest, may seriously limit the 
control that States can exercise over Federal activ- 
ities. They have, in fact, been described as “escape 
hatches.” *° Legal scholars have identified several 
problems with the “consistency” concept, and the 
legislative history of the Coastal Zone Management 
Act does little to clarify the precise way Congress 
intended its provisions to operate.** The legislative 
language of Section 307 is subject to wide interpre- 
tations, and those uncertainties probably will persist 
until defined by the courts. 
Under the 1972 CZMA, there was uncertainty 
about the status of Outer Continental Shelf (OCS) 
oil and gas exploration, ‘development, and produc- 
tion activities with respect to the consistency provi- 
sions. The Coastal Zone Management Act Amend- 
ments of 1976 appended special consistency 
provisions for these OCS oil and gas activities (Sec- 
, 
34 Ibid., Sec. 1453(a). 
35 William C. Brewer, Jr. ‘Federal Consistency and State 
Expectations,” Coastal Zone Management Journal 2, 1976, p. 322. 
36 Richard G. Hildreth. Natural Resources Lawyer. American 
Bar Association, i977, p. 216. 
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