This Background Paper was prepared for a workshop held at the Meridian Institute in Washington, DC on April 29‐30, 2010. In the Paper, we summarize some of the major laws that are likely to inform the design and implementation of a coastal and marine spatial planning (CMSP) regime in the United States. Prior to developing this Paper, we asked workshop participants to suggest pressing legal questions to research in advance of the meeting. Many questions focused on the binding nature of CMSP and the relationship of CMSP to existing legal frameworks.
The Paper is divided into subsections to allow a reader to go directly to a particular statute or issue of interest. In Part II, The Nature of the Proposed CMSP Instruments, after briefly summarizing the CMSP process, we examine the legal implications of the use of devices such as interstate compacts and memoranda of understanding to establish and support regional planning bodies.
In Part III, Procedural Considerations, we examine whether the CMSP process or Instruments will trigger the application of major procedural and environmental statutes such the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the Endangered Species Act (ESA). We consider whether a regional planning body would be a federal agency for purposes of the APA; whether CMSP development would trigger notice and comment rulemaking requirements; whether the CMSP Instruments would be evidence of final agency action susceptible to judicial review; and whether CMS Plans would be enforceable under any of these statutes. We also explore whether CMSP would require an environmental impact statement (EIS) under NEPA and Section 7 consultation under the ESA.
In Part IV, Implementation Considerations: Interface with Existing Federal Statutes, we briefly examine NEPA, the Magnuson‐Stevens Fisheries Conservation and Management Act (MSA), the Outer Continental Shelf Lands Act (OCSLA), and the Federal Power Act (FPA), to explore how federal agencies could use these federal authorities to make and implement CMS Plans.
In Part V, The State‐Federal Relationship, we consider how the legal framework that currently defines the federal‐state relationship in the marine and coastal environment could facilitate CMSP development. In particular, we briefly examine the Paramountcy Doctrine and the Submerged Lands Act as the legal mechanisms underlying the federal‐state relationship. We explore, in detail, how the Coastal Zone Management Act’s (CZMA's) provisions for state coastal management programs (CMPs) could inform and/or enable CMSP development and implementation. Finally, we discuss some implications of states’ federal consistency review authority for regional CMSP.
We recognize that we present only a subset of the legal issues that should be explored when considering CMSP development and implementation. The participants posed many excellent questions that we were unable to address in this brief Background Paper.