w- - V_^\. ' 1 /a A / Attachment 1 WRITTEN STATEMENTS FROM PARTIES WHO COMMENTED ON THE CALIFORNIA COASTAL MANAGEMENT PROGRAM AND THE REVISED DRAFT ENVIRONMENTAL IMPACT STATEMENT Office of Coastal Zone Management National Oceanic and Atmospheric Administration 3300 Whitehaven Street, N.W. Washington, D.C. 20235 PART ONE FEDERAL AGENCY COMMENTS a o o a © Advisory Council on Historic Preservation 1522 K Street N.W. Washington, D.C. 20005 25 W7 May 16, 1977 Mr. Sidney R. Galler Deputy Assistant Secretary for Environmental Affairs The Assistant Secretary for Science and Technology Department of Commerce Washington, D.C. 20230 Dear Mr. Galler: This is in response to your undated request for comments on the revised draft environmental statement for the State of California Coastal Zone Management Plan. Pursuant to its responsibilities under Section 102(2) (C) of the National Environmental Policy Act of 1969, the Advisory Council on Historic Preservation has determined that while you have discussed the historical, architectural and archeological aspects re- layed to the undertaking, the Council needs additional information to adequately evaluate the effects on these cultural resources. Please furnish additional data indicating: I. Compliance with Section 106 of the National Historic Preser- vation Act of 1966 (16 U.S.C. 470f , as amended, 90 Stat. 1320) . The Council must have evidence that the most recent listing of the National Register of Historic Places has been consulted (see Federal Register , February 1, 1977, and monthly supplements each first Tuesday thereafter) and that either of the following conditions is satisfied: A. If no property included in or eligible for inclusion in the National Register is affected by the project, a section detailing this determination must appear in the statement. B. If a property included in or eligible for inclusion in the National Register is affected by the project, the statement must contain an account of steps taken in compliance with Section 106, as amended, and a compre- hensive discussion of the contemplated effects on the property. (Procedures for compliance with Section 106 The Council is an independent unit of the Executive Branch of the Federal Government charged by the Act of October 1 5, 1966 to advise the President and Congress in the field of Historic Preservation. Page 2 Mr. Sidney R. Galler May 16, 1977 California Coastal Zone Management Plan are detailed in the Federal Register of January 25, 1974.) II. Contact with the State Historic Preservation Officer. The procedures for compliance with Section 106, as amended, of the National Historic Preservation Act of 1966 and Executive Order 11593 require the Federal agency to demonstrate consul- tation with the appropriate State Historic Preservation Officer. The State Historic Preservation Officer for Califor- nia is Mr. Herb Rhodes, Director, Department of Parks and Recreation, State of California, P. 0. Box 2390, Sacramento, California 95841. Should you have any questions or require any additional assistance, please contact Michael H. Bureman of the Council's Denver staff at P. 0. Box 25085, Denver, Colorado 80225, or (303) 234-4946, an FTS number . Sincerely yours, ^ud-M- & Louis S . Wall \j\s Assistant Director, Office of Review and Compliance DEPARTMENT OF THE ARMY OFFICE OF THE CHIEF OF ENGINEERS WASHINGTON, D.C. 20314 REPLY TO ATTENTION OF: DAEN-CWP-P 27 MAY 1977 Mr. Robert W. Knecht Assistant Administrator for Coastal Zone Management National Oceanic and Atmospheric Administration Department of Commerce 3300 Whitehaven Street Washington, D.C. 20235 Dear Mr. Knecht: We have reviewed the California Coastal Management Program and Revised Draft Environmental Impact Statement. The review has highlighted a number of problem areas. These include, but are not limited to, inter- pretations relating to consistency and licenses and permits, as well as the adequacy of documentation provided with respect to the boundary require- ments and shoreline erosion planning process. We consider these issues quite serious and recommend that program approval be withheld pending satisfactory resolution. Detailed comments are attached. 1 Incl As stated Sincerely, DRAKE WILSON Brigadier General, USA Deputy Director of Civil Works ^6-191^ © Digitized by the Internet Archive in 2012 with funding from LYRASIS Members and Sloan Foundation http://www.archive.org/details/writtenstatementOOnati CORPS OF ENGINEERS COMMENTS ON STATE OF CALIFORNIA COASTAL MANAGEMENT PROGRAM AND REVISED DRAFT ENVIRONMENTAL IMPACT STATEMENT 1. Page 19 ( Re: miti gation mea sures) . The State requirements for mitigation will not automatically become a condition of the Federal permit. 2. The Program in Chapter 11 commencing on page 69 generalizes about State/ Federal responsibilities, and in doing so it appears to misstate the exact nature of those responsibilities. For example, on page 69 the Program states that Sections 307(c) and (d) of the Coastal Zone Management Act require Federal agencies "generally to c omply with the approved State coastal zone management program." (Emphasis added.) The use of the term "generally to comply" is not precise and may be misleading. The proper description is that Federal agencies must act as required to the maximum extent practicable consistent with an approved State program. 3. On pages 70 and 72 the Plan states that Federal activities, including development projects on excluded Federally owned lands, which directly affect the coastal zone, are subject to Federal consistency requirements and to the California Program to the maximum extent practicable. 16 U.S.C. s 1456(c)(1) and (c)(2) differentiate between activi ties directl y af fecting the coastal zone and developm en t projec ts in the coastal zone. The apparent intent of this distinction is that only those Federal developmenc projects in the coastal zone are subject to the Federal consistency requirements. 4. Chapter 11 of the Plan should address the issue raised by local agency sponsorship of Federal projects in the coastal zone. The Corps of Engineers is required by 42 U.S.C. §1962d-5b to enter into cooperation agreements with local interests prior to the construction of any water resources project. Local participation in Corps water resources projects does not, however, alter the fact that such projects are Federal projects, authorized by Congress in the National interest. As Federal projects, Corps water resources projects in the coastal zone are, of course, required by 16 U.S.C. 11456(c)(2) to be conducted in a manner which is, to the maximum extent practicable, consistent with California's coastal zone management program when it is approved. But the possibility exists that a local sponsor of a Corps water resources project might be denied a permit for its required participation in the project by the State coastal zone agency. This would effectively give to the State agency veto power over a Congressionally authorized Federal project. 5. The U.S. Supreme Court, in two recent decisions, affirmed the principle that Federal activities are subject to State regulation "only when and to the extent that congressional authorization (of State regulation) is clear and unambiguous." E^P.' A. v^ California ex re l . Sta te W ater R eso urces Control Boa rd, 96 S.Ct~2022, 2028 (1976) "and H ancoc k'vT Trai n, 96 sTct 2006, 2013 (1976). The Coastal Zone Management Act contains no such "clear and unambiguous" authorization of State regulation of Federal activities. On the contrary, 16 U.S.C. §1456 (e)(1) states: "Nothing in this chapter shall be construed. . .to diminish either Federal or State jurisdiction, responsibility, or rights in the field of planning, development, or control of either water resources, submerged lands, or navigable waters... nor to limit the authority of Congress to authorize and fund projects..." In the Submerged Lands Act the Congress has similarly reserved its authority and rights with respect to navigation, flood control and produc- tion of power, notwithstanding state ownership of lands beneath navigable waters, 43 U.S.C. 11311(d). 6. On page 72 the California Program states that Federal agencies would generally be constrained from "issuing a license or permit for any activity affecting the coastal zone. .. "unless the State has found that the proposed activity would be consistent with its management program. 16 U.S.C. 11456(c) (3) (A) states that this certification authority applies only to activities requiring Federal licenses which affect "land or water uses in the coastal zone." (This would be applicable to permits issued to private individuals. However, federal activities directly affecting the CZ permitted by the Corps are subject to consistency with California's CZM Plan only to the "maximum extent practicable." Similarly, Federal Development projects in the coastal zone are subject to the same requirement pursuant to Section 1456(c)(1) and (2). Agency determination of compliance is sufficient. Thus, California is overbroad in stating that Federal agencies are constrained from issuing permits or licenses for any activity affecting the coastal zone unless the State finds consistency.) 7. When one considers the above language and also the distinction that the CZMA makes between the requirements of consistency (for Federal develop- ment projects and activities) and certification (for Federal permits), it is obvious that Congress did not intend that the CZMA give a state de facto veto power over Federal projects and activities with local sponsors. We concur with the California Plan's recommendation that the "Federal consistency" procedures begin at the earliest planning stages. But we further believe that, once a Federal development project or activity has been determined by a State coastal commission, or by a Federal agency, or by the Secretary of Commerce to be consistent, to the maximum extent practicable, with a State plan, then the local sponsor should be exempt from further State coastal permit requirements for the project or activity. It is recommended that the Plan be modified accordingly. 8. Pa g e 7 1, Fe deral l ic ense s and p ermit s_. The Corps does not treat another Federal agency as an applicant for a coastal zone permit. For purposes of the consistency requirements, it is the position of the Corps that if the applicant is a Federal agency, and the application involves a Federal acti- vity in or affecting the coastal zone or a Federal development project in the coastal zone, the District Engineer shall forward a copy of the public notice to the State agency that is responsible for administering the coastal zone managment plan for their review and comment. If the State coastal zone agency, within the commenting period for the public notice, objects to the proposed Federal activity on the basis of its inconsistency with the State's approved coastal zone management plan, the District Engineer shall not make a final decision on the application until procedures specified by the Coastal Zone Management Act with respect to such disagreements have been followed." 9. Page 74, Department of Defense, U.S. Arm y Corps of Engineers. Delete Section 11 under section of 1899 Act requiring permits and licenses. Revise last sentence as follows: "Permits for artificial islands and fixed structures located on the outer continental shelf under Rivers and Harbors Act of 1899 as extended by 43 U.S.C. Il333(f)." 10. Bo undaries . The report does not contain sufficient information to determine whether an area is within or outside the coastal zone. 11* Progr am Se gme ntation . Based on the last sentence of Page 34, the Corps of Engineers expects to be afforded the opportunity to review both the single unified program for California and the supplemental EIS. Program title and cover map illustration are misleading since the San Francisco Bay segment (already approved) is not included in this program. 12. Thr e sh old Requirement s . The California Program does not seem to reflect the intent of the threshold guidelines to emphasize the methodologies, rationales, and planning processes that spell out the logic for land and water use designations and decisions. 13. Environme nt al Impact Statement . All of the preceding comments which mandate changes in the management program should also necessitate changes in the draft EIS. 14 . Appen dix la, Page la-7, Section 30236 o f th e California Coastal Act (S.B . 1277"" (Section 30236 is mentioned ^on ^Page _20j]of "the report)"? The language of Section 30236 could be construed as being unduly restrictive. Due consideration should be given to Title 16, Unite d States Code, Section 1456(e) when construing the aforementioned Section 30236. 15. Appen dix 7, Draft Local Coastal Progra m Manual . On 11 March 1977 the South Pacific Division telephonically requested the California Coastal Commission to include the Corps of Engineers as a source of information under the following headings: Croup No. Croup Nomenclatu re A Shoreline Access B Recreation and Visitor-Serving Facilities D Water and Marine Resources G Environmentally Sensitive Habitat Areas K Locating and Planning New Development M Public Works 16. At tachm ent E^ Pu blic He ar i ng Draft of Interpretiv e Guideline For Coastal Planning and Permits.^ The interpretive guidelines should be modified to provide allowance for necessary future maintenance activities involving existing Corps of Engineers water resources developments located in the coastal zone. Specific information was provided to the California Coastal Commission by letter dated 1 April 1977. 17. The information contained on Page 63 and in other portions of subject report concerning the shoreline erosion planning process is not considered adequate since there is no identification of completed or on-going work which is relevant to assessing the effects of erosion in the coastal zone. DEPARTMENT OF TNE ARMY SOUTH PACIFIC DIVISION, COWS OF EJKWEEIS 630 Sansome Street, Room 1216 mcply to San F rancisco, California 94111 ATTCNTION 0T: SPDPD-C Mr. Grant Dehart Office of Coastal Zone Management National Oceanic and Atmospheric Administration Department of Commerce 3300 Whitehaven Street Washington, D. C. 20235 2 2 JUN 1977 Dear Mr. Dehart: This letter conveys an elaboration of our previous comment concerning the adequacy of the shoreline erosion planning process described in the California Coastal Management Program and Revised Draft Environmental Impact Statement. It is intended that this discussion fulfill the verbal commitment Mr. Phillip F. Dunn, Acting Chief of South Pacific Division Planning Division, made to you during your 15 June 1977 meeting held at the office of the California Coastal Commission. It is our view the contents of the California Coastal Management Program should meet those requirements for shoreline erosion/mitigation promulgated by your agency in 15 CFR, Part 920, Section 920.19. The six planning process elements which are described as mandatory for inclusion in a management program are not readily in evidence in the California Coastal Management Program. Perhaps a long-term coastal engineering data collection program such as that proposed by this office and supported by the California Secretary for Resources, as evidenced in Inclosure 1, might be helpful in assessing the effects of shoreline erosion. It would also allow for a continuing refinement of management policies. We anticipate the description of methodologies for designation of areas for erosion control, mitigation and /or restoration would include the views of various city, county, and other state entities. It is understood that prior to 1 October 1978, states may seek approval for their management programs pursuant to Section 306 of the Coastal Zone Management Act of 1972, as amended, even if those elements relating to the planning processes for shorefront access, energy facilities, and spdpd-c JUN1977 Mr . Grant Dehart shoreline erosion/mitigation are not yet completed. However, it is also understood that states must meet these requirements by 1 October 1978 and submit amendments to their programs for review and approval. If you have further questions regarding the thrust of our comment, please feel free to contact me. Sincerely, 'i^PhjjUr 1 Inclosure WILLIAM E. VANDENBERG X As Stated Colonel, CE ^| Deputy Division Engineer GOVERNOR O? CAMrQ.INM .--. *n .o^ Conservation mar.; o = F:.!' I Com* .-,--.-( c- "li.v^gation & Ocean Development rr.rtr.l or Pu.-kt cud rtacroa'ton man! of Y/arer Re;ourc?s Department of Forestry THE RESOURCES AGENCY OF CALIFORNIA SACRAMENTO, CALIFORNIA APR 8 1S77 Brig. General Richard M. Connell Division Engineer South Pacific Division U. S. Army Corps of Engineers 630 Sansome Street San Francie-co, California 94111 RiSOUaCsS S'JiLDlN'j 73G14 Solid Waste Mgm: A!r R-.-.our:e; 3o=r.-] Colorado Zivjr Sosrd Si;'.- Lo.i.!i Com-ijion S^.t- R«lama';o,i Soar'J R«K|io-ial War?r G^;:!;:-/ Cor,:; Beards S:a*-3 V/ct»r r.;-.^-jrcc-» Coi:!ro aoar-j San Francisco B Conservation a. Development Co Calif. Coastal Calif. Conserv. State Coastal C ?j JSarfr&*j£V Dear General &jQ1 is*-* I would like to express the appreciation of my staff for the presentation by Mr. Orville Magoon on your proposed coastal engineering data collection program for the California coastline. We are very favorably impressed with, the content and the scope of these studies and we strongly support their implementation. We have long recognized the extreme importance of developing a thorough data base on the natural forces that affect the utilization of our coastline. In addition to assisting us in our responsibilities for recreational naviga- tion and shoreline protection through the Department of Navigation and Ocean Development, these data will be of significant value to the Departments of Parks and Recreation and Water Resources, The State Lands Commission, and the Coastal Zone Commission. We are pleased that you have decided to utilize the Department of Navigation and Ocean Development's wave network as the core of your wave data gathering effort. We welcome your assistance and support in the extension and operation of this system, and I assure you of our full ar.d continuing interest in this cooperative task. As you may be aware, the Department of Navigation and Ocean Development is providing funding support for complementary programs investi- gating offshore sand sources in Southern California and river-borne sediment inputs in Ventura County. We hope that this kind of cooperation between the Corps of Engineers and the State of California will result in rational and effective programs for the preservation and utilization of the California coastline. Sincerely ,_, j^} Secretary for Resources UNITED STATES DEPARTMENT OF AGRICULTURE SOIL CONSERVATION SERVICE , P.O. Box 2393 Washington, D. C. 205S& 20013 JUN 1 1977 Mr. Robert W. Knecht Assistant Administrator for Coastal Zone Management National Oceanic and Atmospheric Administration 3300 Whitehaven Street, NW. Washington, D.C. 20235 Dear Mr. Knecht: The California Coastal Zone Management Program and revised draft environmental impact statement have been reviewed by several agencies in the Department of Agriculture. The following comments reflect the combined input of those agencies. The Department wishes to commend the State for the fine spirit of cooperation and coordination between local, State, and Federal agencies that this report conveys. The management program set forth is consistent with the requirements of the Coastal Zone Management Act and contains adequate recognition of the major issues of concern to the Department of Agriculture. In particular, we are gratified by the treatment of prime agricultural lands and forest resources. There is a minor correction that should be made on page 91, paragraph 6, sentence 3. Defense installations and national forests and parks are Federal land ownerships rather than examples of either Federal activities or projects. The Department has no objection to the approval of this program under Section 306 of the Coastal Zone Management Act. Sincerely, " Actin *" R.M. flavis Administrator A UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Rockville. Maryland 20852 DATE ;.m *yyr TO FROM Robert W. Knecht Acting Associate Administrator for Coastal Zone Management David H. Wallace rf.//j/j~tf, Associate Administrator i SUBJECT: Review of State of California Coastal Management Program and Revised DEIS Earlier this year I submitted our comments on the State of California Coastal Management Program Discussion Paper and DEIS. The only substantial review that we have been able to make of the Revised DEIS has been made by the National Marine Fisheries Service Southwest Region. A copy of the regional comments is attached for your consideration. Attachment cc: A EE Ma *W 2 d 1977 UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration National Marine Fisheries Service Washington, D.C. 20235 F53/KO TO: FROM: Robert F. Hutton State^ojard-inafeor fp» Marine Resources, MRxA ichonmg, Director T National Marine Fisheries Service SUBJECT: Draft State of California CZM Program and Revised DEIS In response to OCZM's April 13 request and in accordance with the Administrator's March 24, 1976, memorandum on internal review procedures for State CZM programs, we have reviewed subject document. Our comments are attached. Attachment cc: F F5 Fxl Fx5 (Fisher) FNE62 F135 FSE61 FSW FNW5 FAK2 CZ(O'Donnell) AMERICAS FIRST INDUSTRY ,^fc U.S. DEPARTMENT OF COMM National Oceanic and Atmos National Marine Fisheries Service Southwest Region 300 South Ferry Street Terminal Island, California 90731 Date : May 18, 1977 To : Robert W. Schoning, Director, F FSW3 3/JJS From :>" Gerald V/ Howard, Regional Di I FSW 7 rector, Southwest Region, Subject: Regional Review of Draft State of California CZM Program and Revised DEIS We have followed the progress of -the California coastal program for several years and find it to be a basically sound, well designed concept for conserving the natural resources of the State. Of course it is of the utmost importance that NMFS continue to participate in program development as California's local plans progress, for it is at that level one will see the practical implementation of the coastal policies and objectives. A general area of concern which we feel should receive some discussion in the final environmental statement (FES) for the program is the potential impact that plan implementation may have on the effectiveness of Fish and Wildlife Coordination Act (FWCA) programs in California. We feel that one way to address the matter is to request that responses be provided in the FES to the following questions (similar to those answered concerning the Washington State program in your memorandum of May 10, 19 77 to the Associate Administrator of Marine Resources for NOAA) : 1) How will the proposed California Local Coastal Program permit system affect the manner in which living marine resources are considered in permit decisions of the Corps of Engineers, the Environmental Protection Agency, etc. ? 2) Will the proposed State system impair or enhance the effectiveness of the NMFS, U.S. Fish and Wildlife Service and California Department of Fish and Game procedures under the FWCA? If so, how? 3) In what ways may the FWCA programs compliment the State permit system and vice versa? By bringing these potential problem areas to the surface at this stage in the game we should be able to resolve any serious differences of opinion before the State's Local Coastal Program permitting systems become operational. This should also give us a clear idea of what the reaction of the State will be in the future should our agency indicate reservations about any project permitted at the local level. In addition to those topics raised above we would like to see the specific comments which follow addressed in the FES. We recognize that several of them will no doubt be answered when the draft regulations included as Appendices to this DEIS are finalized. Specific Comments ; Page 19, (a) (3 ) The stated policy concerning the construction of new or expanded boating facilities in degraded wetland areas does not seem to be in the best interests of a potentially restorable natural resource, Until all other avenues of wetland restoration are exhausted we do not feel the alternative of a combined restoration/marina package even on the 25%: 75% ratio proposed should be considered. In many areas, particularly Southern California, degraded wetlands represent a large portion of the entire wetland resource which re- mains. Giving up any of that acreage to boating facilities, even v/hen partial restoration is offered should be carefully considered, T age 19, paragraph 2, Section (30607.1 ) It is unclear why diking and filling in wetland areas should re- ceive mitigation on an "equivalent area" basis when marina con- struction in a "degraded" wetland requires, in effect, mitigation on a three to one ratio. Mitigation on a one to one basis is inadequate unless the habitat acquired is of significantly greater biological value than that destroyed. Page 23, paragraph 3, Section (30261(b ) ) The justification for allowing even a single LNG terminal in the coastal zone before the risks inherent in terminal operation are "sufficiently identified and overcome" must be provided in detail. Page 24, final sentence It might be helpful if the consequences of non-compliance with the intent of the policy guidance could be spelled out in this section, The statement that compliance is expected would not appear to pro- vide much incentive. Page 27, paragraph 1 Some arrangement should be made to allow the public to review, free of charge, the official map referenced in this paragraph prior to the issuance of any final environmental statement. Page 27 , paragraph 4 Detailed maps of those areas where the coastal zone boundary line has been drawn "significantly seaward" should be included in the DEIS and be subjected to comment. Page 34/ paragraph 7 Further substantiation should be provided in the text of the DEIS for the following statement: "San Francisco Bay has not been incorporated into the Coastal Commission's management program because the Bay was adequately protected under the provisions of the San Francisco Bay Plan during the development of the Coastal Plan". Page 35 , paragraph 4 The statement is made that the Delta area is just coming under the pressures of development and rather than being considered in the California Coastal Plan it will remain under the existing regulatory authorities of state and local governments. It seems obvious that management by existing state and local government agencies is what forced the remainder of California to develop a comprehensive plan in the first place. There seems little justification for allowing an area which supports such significant anadromous fisheries resources to continue to be developed in the absence of an overall management scheme. Now is the time to incorporate the Delta into the State Plan, and the benefits which would accrue from its inclusion should be thoroughly investigated and outlined in the FES. Page 51, Figure 4 This figure should reflect that at some point early in the Local Coastal Program review process the public, as well as interested government agencies must be guaranteed the opportunity for comment. Page 70, paragraph 1 In the Section "Planning for the National Interest" the importance of farm production as it relates to world food shortage is mentioned, On that basis, the national interest aspects of California's commercial fisheries and the related importance of habitat con- servation should receive equal exposure. Page 70, Planning for Federal Activities Valuable resources may be threatened if some firm criteria are not established which will enable policy makers to decide fairly and impartially what coastal development is or is not in the true interest of national defense or security. Page 124, paragraph 2 To merely "slow down" the rate of wetlands degradation is a poor policy to follow in areas such as southern California where so few viable wetlands now remain. We would suggest a stronger wetlands policy should be instigated in situations where wetlands preservation is so critical. Page 138 If the alternative of delaying approval of the State program and continuing Section 305 (d) funding would serve as an incentive to speed up the process of integration of the Coastal Plan with the San Francisco Bay Plan, then it should be seriously considered. Page 7-5 Though there is some discussion provided in the text, the diagram entitled "Processing Local Coastal Programs" should depict the required coordination among interested agencies, the public, and the local government preparing the Coastal Program. Also, it might clarify the relationship between Coastal Program preparation and the environmental impact reporting process if the referenced diagram were modified to reflect that situation. Page 7-7, paragraph 2, part 4 It would seem that to ensure maximum participation of the public, as well as affected government agencies in preparing Local Coastal Programs, the coastal commissions should develop uniform criteria to be followed by all local entities rather than depending upon those entities to establish such procedures themselves. Page 7-8, paragraph 3 The final sentence in the paragraph should be redrafted to reflect the importance of coordinating with the public and other agencies in the early stages of identifying coastal planning issues. Page 7-9, final paragraph In addition to notifying regional and state commissions when the various stages or portions of a Coastal Program will be ready for review, it would be useful if the local preparer were to notify other agencies as well. Page 7-11, paragraph 3 If the preparation of the Work Program were coordinated closely with affected local, regional, state, and federal agencies, the job of preparing the Land Use Plan for the overall program would be greatly simplified. Page 7-13/ paragraph 2 The interrelationship among the four categories of open space definitions should be stressed. The fact that the categories are not mutually exclusive should be recognized. Page 7-14 , paragraph 3 For a local government to submit their plan in separate geographic units it is stated that "...the commission must find that each area proposed for separate review can be analyzed for the potential cumulative impacts of development on coastal resources and access independently of the remainder of the affected jurisdiction." This decision could be one of the most important made during plan development and should be coordinated with all affected agencies. Page 7-14 , paragraph 5 It would seem that those agencies whose participation will be sought in determining key decision points during Local Program preparation should have some say in establishing specific procedures of coordination. This should probably occur during the preparation of the initial Work Program. Page 7-21 / paragraph 3 There should be little objection to the filing of a negative declaration for a Land Use Plan judged to have no significant impacts , provided that negative declaration is subject to review by all affected agencies. Page 1-21, Explanatory notes, paragraph 4, Reasonable access... While we agree that the local agencies should to a large degree remain autonomous, allowing them to determine what constitutes "reasonable access" where an expensive, tax paying subdivision may be at stake does not seem entirely prudent. Page 7-29, paragraph 10 When consistent policy language is developed for "Recreation and Visitor Serving Facilities" sections of local Land Use Plans, resource protection should be the foremost consideration. Page 7-30, Federal Agencies The National Marine Fisheries Service (NMFS) has certain expertise in the area of recreational fishing and should be included among the agencies listed in this paragraph. Pa ge 7-34 , Federal Agencies The NMFS has a responsibility for protecting the Nation's marine and estuarine fishery resources and their habitats and should be listed among those agencies possessing expertise in that regard. Page 7-37 , Federal Agencies Because of those agency responsibilities listed above as well as a specific mandate under the Marine Mammal Protection Act of 1972, the NMFS should be listed among those agencies which would be consulted concerning environmentally sensitive habitat areas. Page 7-48, Federal Agencies The NMFS has certain expertise in the area of potential environmental impacts which may result from industrial development and energy facilities. Page 7-49, Section 00020. Preparation of Local Coastal Programs - Public Participation and Public Agency Coordination Procedures . It would seem that a subsection should be inserted concerning specific procedures for involving interested federal entities in the formal coordination process. Though it may be implicit in another of the subsections, it might be wise to spell out such procedures . Page 7-52, Section 00022. Staff and Commission Review of Local Government Preparation Procedures and Proposed Scope of Local Coastal Program . The possibility of circulating Local Coastal Programs to all the government agencies during the preliminary review stage should be considered. This would ensure that diverse views could be pre- sented sufficiently early in the game to allow the local entities a chance to respond before their proposed plans were too firmly set. - * ASSISTANT SECRETARY OF DEFENSE WASHINGTON. D. C. 20301 MANPOWER ,**jeX RESERVE AFFAIRS and Logistics 2 4 JUN 1977 Mr. Grant Dehart Office of Coastal Zone Management U. S. Department of Commerce Washington, D. C. 20235 Dear Mr. Dehart: This is to provide the Department of Defense's comments on the California revised coastal zone management program draft envi- ronmental impact statement (eis). We have no substantive comments to offer on the environmental aspects of the proposal. We do wish, however, to point out a variance in the definition of consistency between the proposed regulations and California's interpretation, as reflected in the eis. Specifically, the eis, on page 91, A-2, first and fourth paragraphs and page 131, C-6, third paragraph, fails to recognize that the term applicant does not include federal agencies applying for federal licenses or permits. Accordingly, we recommend that the eis be revised to reflect the intent of the National Oceanic and Atmospheric Administration's regulations on the definition of consistency. Should you have further questions, please contact Mr. H. R. Smith on 695-0221. Sincerely, George Marienthal Deputy Assistant Secretary of Defense (Environment and Safety) "76-^ OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE WASHINGTON, D. C. 20301 IR MANPOWER, RESERVE AFFAIRS AND LOGISTICS 7 JUL 1977 Mr. Robert W. Knecht Assistant Administrator for Coastal Zone Management National Oceanic and Atmospheric Administration 3300 Whitehaven Street, N. W. Washington, D.C. 20235 Dear Mr. Knecht: The program aspects of the draft California Coastal Zone Management Program has been reviewed within the Department of Defense. Des- pite the fact that the Management Program has been reviewed and modified many times during its formulation process, we still find the current version incomplete and unacceptable to this Department. More specifically: a. Federal lands are not clearly identified as excluded from the coastal zone. b. National defense is not adequately provided for in the consideration of national interest. c. The program does not exempt Federal agencies from state permit requirements. d. The program fails to include the Department of Defense and its activities as coastal dependent uses. e. National defense is not included as a consideration for requesting amendments to local government coastal zone plans. f. The program continues to designate for future state uses, access or acquisition several military installations excluded from the coastal zone. g. The program is based upon local government coastal zone programs. Regulations and guidelines still being developed and not yet adopted by the California Coastal Commission. h. Fundamental inconsistencies exist between the CCZMP and NOAA's proposed regulations for Federal consistency. Asa consequence of the above, the Department of Defense strongly recommends disapproval of the California Coastal Zone Management Program until these items are addressed and corrected. Sincerely yours, Per/y t. Fliakas Deputy Assistant Secretary of Defense (Installations and Housing) UNITED STATES ENERGY RESEARCH AND DEVELOPMENT ADMINISTRATION WASHINGTON, D.C. 20545 JUN 2 1977 Ms. Joellyn K. Murphy, Director Federal Programs Division Office of Coastal Zone Management National Oceanic and Atmospheric Administration United States Department of Commerce Rockville, MD 20852 Dear Ms. Murphy: This is in response to your transmittal dated April 13, 1977, in which you invited the Energy Research and Development Administration (ERDA) to review and comment on the U. S. Department of the Interior, National Oceanic and Atmospheric Administration's revised draft environmental impact statement concerning the State of California Coastal Management Program. We have reviewed the revised statement and have determined that the proposed action will not conflict with current or known future ERDA programs; we have no comments to offer on the revised statement. H W. H. Pennington, Director Office of NEPA Coordination cc: Council on Environmental Quality (5) vssy UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ^fe. .* 1976, which spells out energy policy for the coast, please let me know - gtoor qo¥o STATE Of CALIFORNIA EDMUND G. BROWN Jit, Cow nor ; ■ ■■»■!■ .■■'■ ■■ ■ ; .MM , , , ■ , I ■ ■ ■ I .1 I ■ ■ ■ ■ I. ■■ ■ ■■■—.. ■ m ■ . ■ . CALIFORNIA COASTAL ZONE CONSERVATION COMMISSION 1540 MARKET STREET, 2nd FLOOR SAN FRANCISCO, CALIFORNIA 94102 PHONE: (415) 557-1001 January 17, 1977 Carl N. Shuster, Jr. , Coordinator Coastal Zone Management Affairs Federal Power Commission Washington, D.C. 20426 Dear Dr. Shuster: Chairman Lane has requested that I respond to your letter of December 8, 1976 regarding the scope of the State's CZM program and its ability to consider energy issues. As you are undoubtedly aware, the State of California is farther along than most states in developing comprehensive legislation to deal directly with all aspects of energy production, storage, transmission, and distribu- tion. The State Energy Resources Conservation and Development Commission has broad statutory authority to develop energy policy throughout the State and the recently-enacted California Coastal Act of 1976 establishes broad policies for the siting, construction, and operation of energy facilities on the California coast under the jurisdiction of the California Coastal Commission. I assume your office has copies of the relevant State legislation and can readily determine the scope of the State's commitment to energy planning. The Draft Environmental Impact Statement on California's coastal zone management program being written by N0AA will contain a complete description of this portion of the program if you need additional information. The difficulty that is immediately raised by your request for comments on energy matters that should be contained in a state's CZM program, however, is the absence of any rational, comprehensive Federal energy policy. Existing California legislation clearly anticipates and incorporates all of the elements that you raised in your letter and many more that you have neglected, such as conservation efforts and environmental protection. However, given the present confusion and lack of coordination at the Federal level, it is extremely difficult for a state to establish much more than a process by which decisions can be made in a rational manner and the basic policies that will guide those decisions. For example, I do not see how you can seriously expect a state to specify "what the state's share of energy transfers throughout the region and the rest of the nation should be" when the Federal government has as yet failed to establish any frame- work within which a state can determine what is either fair or acceptable. Moreover, the Federal government is presently forcing decisions to be made in an irrational sequence on the California coast. The Navy is making decisions on the transportation of Elk Hills oil prior to California decisions on the Sohio project and the FPC decisions on LNG terminal facilities. Those decisions, in turn, may be made prior to California's investigation of LNG terminal sites. And throughout this process, the Interior Department is authorizing offshore drilling and production platforms that will affect marine traffic hazards. Each decision will have a Carl N. Shuster, Jr. Page 2 January 17, 1977 decided bearing on the other decisions because of the possibilities of marine traffic congestion, air pollution, etc. Given this situation, I am sure you can understand our amusement and irritation at having the Federal agencies that have created this mess now propose to sit in judgment on a state's ability to cope with it. We'd be more than willing to try to work together to establish some rational energy policies, but I fear that your letter doesn't much help the cause. urs very truly JOSEPH E. BODOVITZ Executive Director cc: Melvin B. Lane Claire Dedrick (Attn: Richard Hammond Robert Knecht Grant Dehart Bill Davoren Jim Rote) OFFICE OF TH£ SECRETARY RESOURCES BUILDING 1416 NINTH STREET 95814 (916) 445-5656 Department of Conservation Department of Fish and Game Department of Navigation and Ocean Development Department of Parks and Recreation Department of Water Resources EDMUND G. BROWN JR. GOVERNOR OF CALIFORNIA Air Resources Board Colorado River Board San Francisco Bay Conservation and Development Commission Solid Waste Management Board State Lands Commission State Reclamation Board State Water Resources Control Board Regional Water Quality Control Boards Energy Resources Conservation and Development Commission THE RESOURCES AGENCY OF CALIFORNIA SACRAMENTO. CALIFORNIA I r lb/ Carl N. Shuster, Jr. - Ph.D. Ecological Systems Analyst Federal Power Commission Washington, D.C. 20426 Dear Dr. Shuster: Thank you for your letter notifying me of your designation as FPC coordinator of Coastal Zone Management Affairs and expressing your views on the incorporation of energy planning elements into State Coastal Zone Management (CZM) programs. You suggest four items that should be incorporated in State CZM programs, in accordance with § 305(b)(8) of the Coastal Zone Management Act as amended in 19 76. These items are neither within the expertise of the California Coastal Commission nor within the intent of the Federal regulations proposed for those amended sections of the CZM Act. (See Federal Register, Vol. 41, No. 235 - December 6, 1976 § 920.18). I direct you to page 53418 of the above cited Federal Register which serves as an introduction to the proposed rules developed by the National Oceanic and Atmospheric Administration (NOAA) relating to the inclusion of energy facility planning considerations in State CZM programs. It is stated therein that: "... the proposed regulations provide that the designated State coastal agency does not have to develop the elements ot the planning process. This may be accomplished by another entity, but at a minimum, in coordination with the designated State coastal agency The planning elements have not been expanded to require a critical assessment of demand projections or an allocation of these demands between coastal versus inland locations (as had been suggested) because it is felt these requirements would be beyond the capability and purview of coastal management programs at this time." (emphasis added) Dr. Carl N. Shuster , Jr. -2- The emphasis of the proposed rules is on the development of a capability to anticipate and manage the impacts from energy facilities, not, as you suggest, to develop methodologies for projecting expected State energy demands or allocations. The California Energy Resources Conservation and Development Commission (ERCD2) is mandated by statute to develop the type of data you suggest should be incorporated in our State CZM program. The ERCD2 and the Coastal Commission are in contact with each other on this subject and the combined statutory responsibilities of the two agencies amply cover the requirements of § 305(b)(8) of the Coastal Zone Management Act of 1976. Thank you for your interest in our State coastal management. I appreciate the Federal Power Commission's suggestions and interest in our State coastal management program. Sincerel £2^ y for Resources cc: Melvin B. Lane Richard Hammond Robert Knecht Grant Dehart APPENDIX B Suggested LNG Terminal Siting Criteria Suggested LNG Terminal Siting Criteria 1) Population The human population characteristics in the vicinity of the site should be analyzed. This analysis should be used for a site-specific evaluation of risk after more details of the proposed facility become available. A buffer zone between the site and the nearest residence may be desirable. In addition, the impact of LNG project development upon the human inhabitants of the site area and upon the socioeconomic environment should be considered. 2) Climate The plant site should be relatively well- sheltered and should permit safe and economical year-round operation with minimum periods of downtime resulting from adverse climatic conditions. Winds exceeding 30 miles per hour should be infrequent. High winds could hinder LNG carrier maneuvering, and wind loads imposed upon the mooring lines or on the rendering system could require a ship to vacate its berth. (The mooring system at each berth should be designed to hold an LNG carrier in winds up to at least 60 miles per hour.) Periods of reduced visibility resulting from fog and/or precipitation should also be infrequent and be minimally persistent. Extended or frequent periods of reduced visibility could increase the risk of ship accidents (collisions, groundings, etc.) or require temporary suspension of docking or loading procedures. 3) Navigational Suitability The nature and configuration of the approach channel should be such that navigation would not be hampered at any time. The size of the approach channel should be three times the beam of the ship when traffic is limited to one-way movement and six times the beam of the ship when 2 two-way traffic is operating. Minimum channel depths should be 40 feet. All turns &long the channel should be gradual and should not require any unsafe maneuvering. Channel depth should accommodate tankers of up to 130,000- cubic meter capacity. Tankers larger than this require increased depths. Areas with minimal amounts of vessel traffic congestion would be preferable. In areas where there is a moderate to heavy concentration of vessels, traffic patterns should be well-defined. Areas in which established traffic safety systems are in service should be utilized whenever possible. The systems generally consist of two separate lanes, with each lane moving in a single direction, and with a buffer zone between the lanes. The land bordering the areas in which the LNG carriers would maneuver should be well-marked or capable of being marked with lighted aids to navigation. 4) Seismic Considerations The plant site should not be located on or adjacent to any active fault zones which could jeopardize the structural integrity of the facility through ground movement or other related events which could accompany a major seismic disturbance. Any geologic features that could have any bearing on engineering problems or which could interfere with the safe operation of the proposed facility should be evaluated. Each site should also be evaluated to determine the potential for the occurrence of landslides or mass movement, subsidence, and seismically induced soil liquefaction. 5) Topographic Conditions The slope of the site should be minimal so as to avoid the need for additional booster pumps and appurtenant equipment used to circulate seawater for heating or cooling purposes, but should still permit adequate site drainage. Poorly drained sites could increase the potential for the disruption of groundwater regimes as well as increase construction costs. - 3 - The site should have few topographic irregularities such as hills, valleys, or terraces to preclude the need for extensive preconstruction site preparation. Site preparation which would require excavation into the bases of mountains would necessitate the hauling of large quantities of spoil material and the consequent development of spoil disposal sites which would increase costs as well as increase the potential for additional adverse impact. 6) Foundation Conditions The subsurface soil and conditions at each site should be such that adequate stability would be provided under both static and dynamic load conditions. Dense, granular, well-graded soils best avoid foundation settlement due to compaction and seismic loads. Wet, marshy soil conditions may require more expensive and complex foundation design which could also disturb the hydrologic regime of surrounding marshlands. If bedrock is present, it should be relatively close to the surface in order to preclude high-tension pile loads, but at a sufficient depth to avoid interference with preconstruction site preparation. 7) Terminal Area The minimum acceptable water depth at the berth at mean lower low water should be 40 feet in areas not susceptible to wave action. Areas exposed to wave action should have at least a 50-foot water depth at the berth to accommodate increased vertical ship movements. Tankers of greater than 130,000 cubic meters would require greater water depths at the berth. The distance from the berths to the shore should be as short as possible to reduce both costs and revaporization problems that would be associated with a long cryogenic transfer line. Modern technology would allow for a transfer line approximately 2 to 2 5 miles long before revaporization problems would be encountered. - 4 - The site should offer as much protection as possible from exposure to waves and currents of magnitudes which could hinder safe operation of LNG tankers. Swell heights in excess of 4 feet should have a low frequency of occurrence at the site. Wave action could cause ship movement at the berth and increase the potential for hull and berth damage. 8) Anchorage Suitability At least one area suitable for anchoring the LNG carriers should be available in the vicinity of the marine terminal site. The bottom conditions at the anchorage area should be firm enough to provide good holding power, and the water depth should not exceed 200 feet. The anchorage area should be away from vessel maneuvering areas or channels and should be of sufficient size to permit the ship to swing with the wind or current. 9) Land Use Conflicts If the deep water requirement can be met, a proposed site should not be located where severe conflicts could arise with nearby existing or planned industrial, residential, recreational, or conservation-oriented land uses. Often, such a segregation is difficult since population and land use densities are usually high in areas where vessel traffic is heaviest (and the deep water access is best). In such areas, complex vessel traffic control systems and navigational aids are often necessary to promote safe shipping operations. Conversely, at an isolated site, which may be better suited for LNG terminal operations with respect to ^existing or planned land uses, established vessel traffic patterns and nearby dredged shipping channels most often do not exist. In fact, such potential sites may conflict with natural, residential, and recreational land uses. The ultimate site selection will require trade-offs between land use concerns. - 5 - 10) Existing Environment A thorough examination of the existing terrestrial and aquatic biological environment at each site should be conducted, as well as an evaluation of potential adverse impact upon biotic communities and ecosystems existing on or near each site resulting from implementation of the project. The following areas should be avoided when siting facilities: rare and endangered species habitat and/or breeding grounds; unique ecosystems; productive marshlands; biologically sensitive areas; wildlife sanctuaries; or high quality habitats. 11) New Pipeline Requirements and Right-of-Way Availability Each site considered will require some new gas pipeline for transport of the revaporized LNG to the market area. The amount of pipeline necessary will vary with the site's distance from an existing mainline gas transmission system. Sites located near major market areas would require the least pipeline and would therefore tend to minimize construction costs and new right-of-way needs. More distant sites would result in increased project costs and additional environmental disruption along a more lengthy pipeline right-of-way. Therefore, pipeline requirements at each site represent another factor to be considered in balancing public safety concerns against the selection of an extremely isolated project site. 12) Seawater Exchange Systems To mitigate the effects of thermal pollution, a seawater cooling/heating exchange system between a proposed LNG vaporization facility and any existing power generating stations or plant facilities in the area should be encouraged whenever possible. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE REGIONAL OFFICE 50 United Nations Plaza SAN FRANCISCO, CALIFORNIA 94102 OFFICE OF __„. _ _ , . „_ . THE REGIONAL DIRECTOR Office of Environmental Affairs May 9, 1977 Mr. Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street, N.W. Washington, D.C. 20235 Dear Mr. Dehart: The revised Draft Environmental Impact Statement for the State of California Coastal Management Program has been reviewed in accordance with the interim procedures of the Department of Health, Education and Welfare as required by Section 102(2) (c) of the National Environmental Policy Act, PL 91-190. We appreciate the opportunity to review this Statement. At this time we have no comments to offer. Sincerely, Tame s^.^Knoc hen hauer guf Regional Environmental Officer cc: CEQ 0EA \ ^» ,M r<>* +- • £ DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT £ WASHINGTON, D.C. 20410 J? 9 JUN 1977 OFFICE OF THE ASSISTANT SECRETARY FOR COMMUNITY PLANNING AND DEVELOPMENT IN REPLY REFER TO: Honorable Robert Knecht Associate Administrator, Office of Coastal Zone Management National Oceanic and Atmospheric Administration Washington, D. C. 20235 Dear Mr. Knecht: The Department of Housing and Urban Development has reviewed the draft California 306 Management Program and the draft Environmental Impact Statements and offers the following -comments for your consideration. We have no objection to approval by the Secretary of Commerce on the subject document for the purpose of obtaining Department of Commerce funding subject to the following conditions and clarifications. Tne State of California should be informed that approval of the California Coastal Zone Management program by the Secretary of Commerce cannot be construed as HUD approval of this document for the purposes of meeting the land use element requirement of the 701 Comprehensive Planning Assistance Program (24 CFR 600.72). HUD determination of approval of the State of California land use element shall be in accordance with the procedures established in 24 CFR 600.73. In relation to the identification of flood hazard areas, FIA has made significant progress in California. Of 393 California communities participating in the NFIP, 372 have received preliminary delineations of their flood hazard areas (Flood Hazard Boundary Maps) and 21 have received Flood Insurance Rate Maps which are the result of FIA's major in-depth studies of the flood hazard. A significant proportion of these communities are located within the coastal zone. The Coastal Zone Management Act of 1972, at 15 CFR 923.12 - Areas of Particular Concern, directs states to inventory areas of significant hazard due to floods as well as erosion, storms and slides. Similarly, the California Coastal Act, 1977, Section 30253 states that, "New development shall: (1) minimize risks to life and property in areas of high geologic flood, and fire hazard; (2) assure stability and structural integ- rity, and neither create nor contribute significantly to erosion, geologic instability, or distruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs. . ." FIA's extensive mapping efforts can play a major role in satisfying the provisions of these two Acts. However, the State of California Coastal Management Program does not include safety or hazard minimization as one of its goals. Consequently there is no reference to FIA's mapping efforts or the requirements of the National Flood Insurance Act of 1974 as they relate to the management of coastal high hazard areas. While Table E, Impact Assessment Criteria , of the EIS includes "intru- sion upon hazard areas and unstable landforms" among the impacts to be considered in evaluating the Program, it does not suggest the necessity of recognizing the hazard potential in the revision of California's Coastal Zone Management Plan. We also feel that this statement reflects a failure to recognize the role that HUD's flood hazard area identifica- tion efforts can play in the development of the state's management program, and that this aspect of the program falls short of meeting the intent of Section 923.12. It seems clear that HUD's efforts can contribute to the informational needs of California as well as the planning efforts of local communi- ties. Recognition of the National Flood Insurance Program's require- ments, and FIA's role in mapping and in the management areas of special flood hazard in subsequent drafts of the Program and the EIS would bring the Program closer to meeting the intent of the Coastal Zone Management Act. Sincerely, Rob UV/ Assistant Secretary (j United States Department of the Interior OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 JUL 5- w// Mr. Grant Dehart Office of Coastal Zone Management National Oceanic and Atmospheric Administration U. S. Department of Commerce 3300 Whitehaven Street, N. W. Washington, D. C. 20235 Dear Mr. Dehart: The Bureaus and offices of the Department of the Interior have completed an extensive review of the State of California Coastal Management Program (CCMP) and Revised Draft Environmental Impact Statement (DEIS). Our detailed comments are attached. We have divided them into sixteen categories, by subject and have also included a number of miscellaneous comments and our comments on the DEIS. In general we found the California Program to be an exemplary program which focuses on many of the key issues and provides for decisive and effective management of coastal resources. After our initial review of the CCMP document and DEIS, we requested a meeting to discuss our concerns point by point. As you know, the meeting between representatives of the California Coastal Commission (CCC) staff, the Department of the Interior (DOI) and your office was held on June 20, 1977, at CCC headquarters in San Francisco. The meeting was highly productive and we appreciate the time and energy expended by the State and the Office of Coastal Zone Management (OCZM) in discussing and reaching agreement on many of the issues of concern to us. It became apparent that much of our concern stemmed from statements in the CCMP document which did not accurately reflect or provide sufficient detail about the California Coastal Act and the implementing plans of the CCC which will be detailed in guidelines and regulations currently under preparation. One of the key subjects discussed was the balance of authority and control between local, State and Federal agencies relevant to issues and decisions which involve the National interest. We believe the coastal zone management (CZM) programs being developed by the coastal States can be viewed as falling somewhere on a continuum between absolute State control and absolute local control. Obviously, acceptable programs will fall in a range located well within these extremes since a balancing of authority and control among all levels of government is an implicit requirement of the CZMA. As a result of the June 20th discussions and more detailed review of sections of the California Coastal Act, we believe that the California Program may adequately meet the requirements of the Coastal Zone Management Act of 1972 (CZMA) pertaining to the process and balance of authority necessary for adequate consideration and accommodation of the National interest as reflected by the programs of DOI. This conclusion is reached mainly in light of the recent CCC staff decision to formulate consistency determinations at the State level and not delegate this function to local coastal programs and port authorities. We fully agree with and commend California on this decision. We believe such an approach is vital to the maintenance of a strong CZM program in the State. The CCC staff indicated that some of our other concerns would probably be resolved by review of implementing guidelines and regulations (see list in Attachment B) currently in final preparation. We are in the process of reviewing these. Pending a favorable outcome of this review and modification of the CCMP document, as agreed upon at our June 20th meeting (see specific references in the balance of these comments), the Program appears to be workable. The Department found several other specific aspects of the California Program to be noteworthy. The Department especially commends California on its handling of the recreation and beach access elements. The Department's Bureau of Outdoor Recreation finds the California approach to be highly compatible and complimentary to their programs. Although the Department does have some questions about the content and processes involved in the development and implementation of Port Master Plans, California's emphasis on port planning in the context of Coastal Zone Manage- ment (CZM) is extremely important and hopefully will set a pattern for other coastal State programs. One of the major strengths of the CCMP is the involvement of its citizens. The spirit in which Proposition 20 dramatically initiated the program is still readily apparent within the pages of the CCMP document. The interest and involvement of so many California citizens will provide the program with the fundamental support it will need to survive and succeed during the trials to be faced in the implementation phase when hard site specific decisions must be made. Land acquisition, which has always been controversial in nature, and energy development which has recently attracted much attention, are two of several elements of the CCMP where California has placed itself squarely in the heat of the issues. While the Department has some questions concerning portions of these elements, it compliments the State on its aggressive approach and understanding of the problems. There are also several issues in the California program which remain unresolved from the perspective of the Department. The Department would like to reiterate some of the concerns expressed at the June 20th meeting, affirm the intention of the CCC staff /OCZM to make specific changes which were verbally agreed upon, and recommend other specific changes to the CCMP document. While the California decision to maintain Federal consistency determinations at the State level is a positive and definite improvement over local deter- minations, the State proposes that the California Coastal Program be approved prior to the development of any of the local coastal programs. Much of the authority for implementing the California Program will lie with these yet to be developed local programs. As the Department knows little of the substance and only some of the process which will be included in these local programs, it is essentially impossible to assess the range of their potential effects on the Department's programs. Yet it is local coastal programs which will be part of the basis for establishing the consistency of Federal activities, development projects, permit approvals, and assistance programs. This dilemma presents the Department with some difficulties in structuring its policies in California's coastal areas. At present, there is not an easy answer to solving this dilemma. Consequently, the Department will continue to focus its efforts to assist the State, local governments and port authorities in developing effective CZM plans to the maximum extent its resources allow. Another concern relates to water use management. The CZMA clearly mandates water use management as a necessary part of a State's CZM program. Water use decisions which are made by comprehensively assessing impacts and benefits are especially important for California where both fresh and marine water resource demands are severe and rapidly increasing in magnitude and diversity. We believe California should considerably strengthen its water use elements to provide an effective framework for managing its valuable water resources. Three of the processes required by the CZMA (boundaries, permissible uses, areas of particular concern) as outlined in the CCMP are in need of some revision prior to approval by the Secretary of Commerce. Our concern over boundaries is twofold. We find that the Sacramento-San Joaquin Delta is not included in either the California Program or the Bay Conservation and Development Commission program (reference our letter on the BCDC program dated January 13, 1977). There are obviously a variety of critical issues related to the Delta which involve local, State and Federal authorities. There appear to be sub- stantial arguments for and against the inclusion of the Delta in the CZM program. It is also apparent that considerably more effort is needed to resolve the issues whether or not they are viewed as a coastal management problem. We believe the issues cannot be isolated from those addressed by the California program. We recommend, therefore, that California and OCZM carefully reassess the inclusion of the Delta. If the decision is to include it, we will assist in resolving these issues to the greatest degree possible; if not, we request that further study be a requirement of the first year work program under Section 306 of the CZMA. Secondly, we find inconsistencies in the boundaries of the BCDC segment and the balance of the California Program. While we do not have a basic disagreement with California's concept of permissible uses, we have questions concerning a few specific aspects of this requirement (see detailed comments) which taken collectively require some reworking of the CCMP document for clarification. According to our discussions on June 20th, California is planning on desig- nating its entire coastal zone as an Area of Particular Concern, rather than specifying specific sub-areas. While we find this concept has some merit, it may pose procedural problems for the State and OCZM in light of their legislative requirements. The Department also has concerns for the treatment of historic resources and mineral development. While the former is addressed in some detail in the CCMP document, additional clarification is needed. The latter is essentially unaddressed and we therefore recommend that adequate provisions for dealing with this subject be added to the CCMP document. Finally, while the DEIS does provide much useful information, it should clarify the interface and integration of the CCMP with existing coastal resource management programs, the details of how interagency coordination will be achieved, and the impacts that approval of the CCMP will have on existing programs and authorities. We hope that these comments are useful and that the above concerns and those others specified in our detailed comments can be resolved by OCZM and California. We are encouraged by the potential of the Program and look forward to a continued working relationship with the State and local agencies in their efforts for effective management of coastal resources. We gladly offer our assistance to OCZM and the State to make the CCMP as effective as possible. Sincerely, / Heather L. Ross Deputy Assistant Secretary -- Policy, Budget and Administration Attachments Attachment A Detailed Comments on the Draft California Coastal Management Program and Draft Environmental Impact Statement Local Coastal Programs The California Coastal Act requires that each local government within the coastal zone prepare a local coastal program for the coastal zone within its jurisdiction, or the local jurisdiction may request the Coastal Commission to prepare the program (30500(a)). The local coastal programs will be submitted to the Coastal Commission for certification, and upon certification, permit authority will be delegated to local governments. The CCMP document states on page 36: ". . . upon the certification of local coastal programs, it is expected that performance standards will still be applied to coastal developments" (emphasis added). This statement is weak and appears to be in conflict with the Coastal Act since the Act mandates performance standards. A better and stronger reflection of the relevance of the state management policies in local coastal programs would be: ". . . upon the certification of local coastal programs, the performance standards will continue to be applied to coastal developments." For implementation of the State program, the words of the State policies will be translated into general plans, zoning maps and zoning ordinances. The CCMP document states on page 48 that a local coastal program may be submitted to the Coastal Commission for certification by means of three different options: (1) the land use plan, zoning ordinances, and zoning maps, and, if required, implementing actions may be submitted together; (2) the land use plan may be submitted, and, after certification, the conforming zoning ordinances and zoning district map, and, if required, implementing actions may be submitted; or (3) the land use plan and other materials may be submitted in separate geographical units. During our June 20th meeting, it was agreed that the CCMP document language for option (2) didn't accurately describe the Coastal Act's requirement that both an acceptable land use plan and acceptable implementing legal tools must be submitted to the CCC prior to certification of a local coastal program by the CCC. Our next concern relevant to local coastal programs is the mechanism for amendment of local coastal programs. The procedures for modification of the local coastal program and what constitutes an "amendment" are not clearly stated in the CCMP document. For example, the following statement appears to be conflicting: "Certified local coastal programs and all local imple- menting ordinances, regulations and other actions may be amended by a local government, but a material amendment must be certified by the Coastal Commission" (page 50). This sentence indicates a certified local coastal program may be amended by a local government, but a "material" amendment may not. However, the definition of what constitutes a "material" amendment is lacking. The California Coastal Act (Section 30514(a)) states: "A certified local coastal program and all local implementing ordinances, regulations, and other actions may be amended by the appropriate local government but no such amendment shall take effect until it has been certified by the Commission." Section 30514(c) of the California Act states that the Commission will establish regulations whereby amendments may be reviewed and designated by the executive director of the Commission as minor in nature, and such minor amendments would take effect ten working days after designation. In order to assure that the elements of the California Program are in the National interest, we hope Federal agency involvement and coordination in establishing the regulations which will constitute "minor amendments" is assured. Any coastal zone management program must have a means of enforcement if it is to be effective, and we specifically commend California for its judicial review procedures, enforcement policies and penalties as set forth in Chapter 9 of the California Coastal Act (Appendix 1 of the CCMP document). However, the CCMP document and the draft EIS are particularly weak in addressing the enforcement aspect of the management program. These descriptions should be strengthened. Federal agency involvement in the development of local coastal programs as mandated by the Coastal Act is not clearly defined in the CCMP document. The applicable statements on pages 86-88 should be strengthened. A system for securing Federal agency involvement in the development of the local plans should be established prior to Section 306 approval. As the CCMP document points out, Federal agencies have an obligation to provide information and assistance to those cities and counties developing local programs. We see this coordination as essential. The Department is committed to providing as much assistance to local governments and port authorities as our resources allow. We are also concerned that a situation may arise in which new information, cumulative effects, or an unforeseen circumstance may occur after a local coastal program is approved which would cause an activity, which is in compliance with the local coastal program or port master plan as approved, to be inconsistene with the National interest. This would result in a conflict between the policies of the local coastal program and those of the State program, if the particular activity in question is controlled by decisions which are not subject to State override. In our June 20th meeting, the CCC staff/OCZM agreed that it appeared that no mechanism was available to resolve this conflict. We request CCC staff/OCZM pursue this issue further prior to approval and provide its resolution in the final CCMP document. National Interest The problem of assuring adequate consideration of Federal agencies' views as they pertain to the National interest in administering a State CZM program is very critical. In our June 20th meeting the CCC staff/OCZM indicated that a major rewrite of the National Interest sections of the CCMP document is underway. We would appreciate an opportunity to review draft versions of these sections prior to publication of the final CCMP document. An acceptable approach to address the National interest in our view, should embody at least three elements. First, a formal mechanism is needed to assure Federal agency participation in locally developed program elements. Secondly, a reliable system is needed to assure adequate consideration of National interests. Third, an appeal system is needed whereby cases in which recognized National interests are not adequately considered may be appealed by the appropriate Federal agency to the State, an impartial body, or the Office of Coastal Zone Management. Informal systems or discretionary statements which use the auxiliary verb "should" in describing a process to consider and accommodate National interests and Federal agency comments during State review of locally developed plans, programs, or policies, are clearly unsatisfactory. In parts of the CCMP document (e.g. the last paragraph on page 72), obligatory statements are used in regard to consideration by the State of Federal views but in other parts (e.g., the first paragraph on page 70 and Section 30501(c) of the Coastal Act) the discretionary auxiliary "should" is used, indicating that coordination with Federal agencies and consideration of uses of greater than local concern are not obligatory, when in fact they are. In our June 20th meeting, the CCC staff/OCZM agreed to make these changes. Since the term "environmentally sensitive areas" in Section 30263(a)(4) of the Coastal Act is undefined, the consequent requirements for Federal consistency are not clear. The term should be defined. Also on page 59 the CCMP document discusses the implementation of the recom- mendations of the 1976 0CS Project Study report. While the Department concurs with some of the recommendations, others are in direct conflict with National interest aspects of the Department of the Interior policies. If the State plans to mandate the implementation of some of these recommendations, we would like to discuss them in depth with California and OCZM to assess what conflicts might evolve before they are incorporated into the CCMP. Furthermore, we recommend that the CCMP document be specific on which of these recommendations it is mandating and which it is suggesting that State' and local governments implement. The present wording leaves the reader uncertain at to the State's intention. In our June 20th meeting, the CCC staff/OCZM agreed to revise this section by either deletion or clarification. Federal Consistency Our major Federal consistency concern with the CCMP document has been alleviated by the recent CCC staff/OCZM decision not to delegate authority for Federal consistency determinations to local governments. We commend California on this decision. It is clear that the California Program recognizes the relevance and necessity of Federal agency involvement in the development of local coastal programs and port master plans, particularly as they relate to Federal consistency. The CCMP document states: "The overall purpose of Federal consistency is to provide for closer cooperation and coordination between Federal, State, and local government agencies involved in coastal zone related activities and management" (page 91). However, the CCMP document fails to strongly encourage this Federal cooperation particularly in development of the local coastal programs and the port master plans. Since the California Coastal Act mandates Federal agency coordination in the development of these programs and plans, the final CCMP document should clarify this issue. In addition to this general need for a better approach to reconciling Federal, State and local concerns in the CCMP document related to Federal consistency, there are a few statements on pages 72 and 73 that should be clarified or modified. The fourth paragraph of page 72 should state that it is the Federal agency that makes the consistency determination for activities under 307(c)(1) and (2), not the State as has been inferred by some in reading this paragraph. The State reviews the determination and can agree or disagree with it, but the Federal agency makes the decision. Also, in item c. of this paragraph, change the words "covered by" to "described in detail in". This change is needed for clarity and preciseness. During the June 20th meeting, the CCC staff/OCZM agreed to clarify this issue in the CCMP document. Water Use Management Based on their 1972 Comprehensive Ocean Area Plan and other studies and analyses, California has developed some general policies for the effective management of some of the uses of its coastal waters. The State has also included a separate chapter on Port Master Plans, providing for their incorporation into the balance of the CZM program planning. California should be praised for this initiative in managing marine resources. It is unclear, however, exactly how these policies will be implemented to form a comprehensive water use (both fresh and salt water) management element of the CZM program. Specific policies have been developed for specific ocean uses (e.g. oil- and gas pipelines, liquefied natural gas (LNG) receiving terminals, etc.). While such specific policies are important to California and the Nation they are insufficient to deal with the complex multiple water use demands which now exist for the State's territorial sea, let alone the major increases in these competing demands expected in the next few years. For instance, neither the CCMP document nor the Coastal Act deal substantially with marine mineral mining, ocean transportation, ocean dumping, sewer outfalls, ocean research, energy uses in the marine environment other than OCS and LNG (e.g. nuclear), use of fresh or saline water for cooling and the consequent thermal impact, endangered marine species, interaction with Fisheries Management Councils, fresh water use management and other water uses either singularly or in consideration of their interacting effects. The CCMP document does not provide for implementation of a comprehensive water use management process at the State level. At the local level, the term water use (other than as pertaining to Port Master Plans) is omitted (refer to p. 47 paragraph A). While this lack of adequate treatment of comprehensive water use management is not unexpected in light of the current land side orientation by most States and OCZM, water use is given emphasis which is equal to or stronger than land use in the CZMA. (Refer to Sections 302(c), (d), (g), (h); 303; 304(1), (2), (6), (7), (11), (16); 305(a)(1) and (b)(1), (2), (3), (4), (5), (6); 306(d)(1), (2); 306(e)(1), (2); 307(c)(3)(A), (B); and other sections of the Coastal Zone Management 1972 as amended, all of which refer implicitly or explicitly to water use.) The programs and activities of the Department of the Interior, other Federal agencies, and other public and private interests would benefit considerably by the more predictable and equitable allocation of resources which would result from a substantial water use element in each State's CZM program. We therefore encourage OCZM to provide additional direction , guidelines , encouragement and incentives to States to undertake the development and implementation of effective coastal water use management programs. To delay these complex but vital elements of CZM until after States reach the implementation phase of their programs is, in effect, writing off an opportunity for providing a positive influence on resource allocation decisions of fundamental concern to the well-being of the States and our Nation as a whole. Furthermore, the CZMA clearly mandates such an element as a require- ment to be met prior to approval of the programs by the Secretary of Commerce. (See references cited above.) Two specific resource allocation decisions facing California will help to underline our concern. First, there is a critical shortage of fresh water at present in California. This is a problem which has plagued the State off and on over many years. It is also a problem that has direct repercussions for effective CZM. The CZMA accurately and clearly indicates that water is the key to effective coastal management. It is the carrier of sediments to nourish beaches. Fresh water inflow is vital to the natural integrity of estuaries and other wetland areas, and as a nutrient carrier it can maintain or drastically upset the coastal food chain on which our fisheries and wildlife depend. It is also necessary for many other important coastal processes. As freshwater demands increase a strong CZM water use program must exist in California to insure that sufficient water is allocated for these natural coastal processes. As presently described, the California Program doesn't make these provisions. A second specific example of such an opportunity is found in the potential development of LNG receiving terminals at offshore sites. The legal and administrative morass facing such a development may even outweigh technical or environmental problems. The lack of definitive Federal policies pertaining to an LNG facility beyond the territorial sea, may preclude its siting outside State waters in the foreseeable future. Close State/Federal coordination and effective State planning for use of its territorial sea is therefore of especially vital concern. While a State may accept or deny permission for siting such facilities in its territorial sea (or take a position of conditional acceptance as has California) such a decision should be made with adequate consideration of the economic and environmental effects and impacts on all other relevant ocean uses, most of which have more than local significance. Comprehensive coastal water use management is a necessary part of the CZM program of any State and is mandated by the CZMA. We therefore suggest that the water use elements of the California Program be considerably strengthened to be on a par with the land use elements prior to approval by the Secretary of Commerce. 8 Coastal Boundary In general, we concur with the proposed 1,000 yard inland extension of the coastal zone boundary, and we commend California for extending the boundary inland up to five miles in significant coastal estuarine, habitat and recreational areas. However, we believe that the proposed boundary needs attention in two areas, the question of inclusion of the Sacramento-San Joaquin Delta and certain inconsistencies between the California Program boundary and that of the San Francisco Bay segment. As was indicated by our discussion on June 20th, and subsequent discussions, the interaction of Federal, State and local authorities in the Delta and the importance of the Delta and proposed peripheral canal in issues related to fresh water quality, use and flow in the State, may pose problems too complex to gain substantial advantage by including the Delta in California Coastal Zone at this time. On the other hand, there appears to be good reasons for its inclusion on a biophysical basis and for further protection of valuable living coastal resources. Some of these reasons for inclusion follow. Section 304(1) of the Coastal Zone Management Act defines the term "coastal zone" accordingly: "... the coastal waters . . . and the adjacent shore- lands, strongly influenced by each other . . . ." This Section of the Act further states: "The zone extends inland from the shorelines only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on coastal waters " (emphasis added). The Delta is an important segment of the "adjacent shorelands". The program briefly explains the rationale for excluding the Delta by stating: ". . . the water of the Delta is fresh and must remain so if it is to continue to be used for irrigation and as a source of drinking water" (page 35). The program further attempts to justify the exclusion by stating the definition of coastal waters as defined by Section 304(2) of the Coastal Zone Management Act (page 35). Our contention is not with the definition of "coastal waters" but that the California CZMP proposed coastal zone boundary may not fit the Act's definition of "coastal zone." Additionally, the program claims that the Delta will ". . .be managed by State agencies and local governments using existing regulatory authorities" (page 35). This statement may be an insufficient reason for excluding the Delta from the coastal zone, particularly since such a situation is no different from other coastal areas where a myriad of agencies are involved in various forms of resource management. In fact, the Coastal Zone Management Act declared it a National policy to encourage cooperative, consolidated approaches to coastal resource management. We believe that several of the statements of the CCMP document (page 35, third paragraph) actually argue for including the Delta in the California Program. These statements address the Delta's ecological relationship to San Francisco Bay and the coast and indicate that competing pressures for water use (i.e., development, agriculture and recreation) dre increasing in the Delta area. 9 Numerous studies document the delicate, ecological relationship that exists between the Delta and San Francisco Bay. According to annual, joint surveys conducted by the California Department of Fish and Game and the U. S. Fish and Wildlife Service, the Delta area and the Suisun Marshes constitute the two most important wintering waterfowl areas in the State of California. Principal species utilizing these areas include pintail, widgeon, mallards, gadwall , greenwing teal, canvasback, ruddy ducks, shovelers, scaup, buffle- heads and scoters. It is reported that approximately 2/3 of the Pacific flyway canvasbacks winter in the brackish waters of the San Francisco Bay- Delta area. Several species of fish, including the chinook salmon, steelhead, striped bass, American shad and white and green sturgeon, are integral components of the Sacramento-San Joaquin Delta-Bay ecosystem. Each species has certain requirements for using the fresh and brackish water portions of the system, including the Delta, for spawning, rearing, and as a migration route to and from San Francisco Bay and the Pacific Ocean, Anadromous species, because of their characteristics, are subject to a variety of environmental conditions that are basically related to the streamflow, diversion, salinity, and other water quality factors. Salmonids are intensive users of the fresh water portion of the system with segments of the population using the system throughout the entire year. They are impacted more by temperatures and flow regime of the upper river system than other fish. Decisions that affect the flow regimen of the system, i.e., releases from the dams for downstream purposes, automatically have an impact on the spawning and resultant survival of salmon and steelhead. The spawning run of salmon in the Sacramento River and tributaries is estimated to be 326,000 adult fish annually, while the steelhead run approximates 39,000 adults annually. The salmon and the steelhead both utilize the Delta as a nursery and rearing area for varying periods of time as well as a staging area and transition zone during their outmigration from freshwater to salt water of San Francisco Bay and the Pacific Ocean. The Delta Area is equally important to the striped bass which were introduced into the area in 1879 and have been a remarkable transplanting success. The Delta-Bay area populations of striped bass approximate 1.5 to 4 million adults with 55-66% of these adults spawning in the lower Sacramento River. Hedgpeth (1969)* reported that striped bass support a fishing effort estimated to involve—the expenditure of $20 million per year by sportsman, and this figure has probably increased substantially since 1969. High quality water conditions in the brackish area of the Delta are crucial to the maintenance of this substantial fishery. In "The Nation's Estuaries: San Francisco Bay and Delta, California (Part 2)," Hearings before a subcommittee of the Committee on Government Operations, House of Representatives, 91st Congress, August 20, 21, 1969. 10 American shad and white and green sturgeon also have certain relationships to flow, temperature and other upstream environmental conditions although the life requirements of this species are less understood than for the salmonids and striped bass. Striped bass appear to be least affected by upstream conditions because they spawn nearer to the Delta, although spawning in the Sacramento River occurs further upstream than in the San Joaquin River. The Delta waters clearly exert a considerable influence on the waters of the San Francisco Bay and the Pacific Ocean. Further withdrawal of the Delta waters for irrigation of drinking water purposes, as stated in the CCMP document, can be expected to directly and significantly affect the character of San Francisco Bay and adjacent bodies of water. Influence from tides and saltwater incursion through deeper channels has already affected the character, quality and potential uses of Delta water. The anadromous species plus all the estaurine and many marine species depend on the down- stream areas of San Pablo and San Francisco bays for many of their life requirements. Reducing Delta outflow directly impacts the quality of the life support systems in these bays by lowering productivity and altering water quality parameters. Equating the precise impact in the downstream portion of this estuary is difficult because of the lack of data, but there is evidence from other estuarine areas which show that substantial outflow is needed to maintain productivity of estuaries. The bottom fauna, especially the sessile, attached or burrowing invertebrates, are also of significance in the ecological systems operating within the Bay and the Delta. Not only do these benthic invertebrates serve as a source of food for many species of fish and wildlife, but they also serve as indicators of changing overlying characteristics. In summary, since the San Francisco Bay/Sacramento-San Joaquin Delta function both physically and biologically as a unit, a strong argument can be made for treating them as a unit and including the Delta (extending inland at least to the extent of salt water intrusion if not the entire area influenced by normal tidal fluctuations) in the coastal zone management program. In light of the above points, we strongly urge California and OCZM to carefully reconsider the advantages and disadvantages of including the Delta in the California coastal Program. If the decision is to include the Delta, the Department will assist California and OCZM to the maximum extent possible in assuring its effective management under the requirements of the CZMA. If the decision is not to include the Delta, then we recommend that official approval of the California CZM program be conditioned such that California undertake a Section 306 task to study the Delta area for future inclusion in the coastal management program. Any task initiated should be conducted in concert with the ongoing study of how the Central Valley Project under 11 the control of the Bureau of Reclamation, and the State Water Plan under the control of the State of California, can provide fresh water inflow to the Delta area to support State and Federal water quality regulations while meeting agricultural and municipal and industrial demands. Such a study should also critically evaluate the existing Sacramento-San Joaquin Master Recreation Plan, published by the State of California Resources Agency (updated 1976), and review the specific recommendations in this plan. We believe that a blending of this Master Recreation Plan and the California Coastal Act could result in significant progress in developing an ecologically sound land and water use management plan for the Delta area. The Department would be pleased to assist California in developing specific task objectives for this study. Our second major concern is related to the apparent inconsistency in the treatment of wetlands, including sub and intertidal flats, between the approved San Francisco Bay Conservation and Development Commission (BCDC) coastal zone management program and the proposed State program. This inconsistency is not addressed in the CCMP document. We are particularly concerned about diked wetland areas in north and south San Francisco Bay which are not being used as salt ponds and are not classed as "managed wetlands" in the BCDC program. In the BCDC program these areas are excluded from the coastal zone, except for the 100 foot strip adjacent to the mean high water line. Thousands of acres of diked tidelands fall into the excluded category which primarily serve agricultural purposes or as open space and wildlife habitat. These lands are either abandoned salt ponds, seasonally flooded areas, or areas that have been allowed to revert to a natural state. These areas are more prone to being filled than other areas of the Bay since BCDC has no control over them. Comprehensive regional plans are lacking for these areas and, as a result, there is little or no administrative force to protect them for the benefit of the public. With existing authorities, housing develop- ments, shopping centers, offices, and light industrial complexes could spread over from the uplands into these areas to within 100 feet of the dikes. Diked tidelands are of considerable value to wildlife resources primarily as a result of the immediate proximity and ecological inter- relationship to the open waters of San Francisco Bay. Destruction of either portion of this ecological system would seriously diminish wildlife resources for the entire coastal area. Although the Federal government, through the Corps of Engineers, presently has regulatory jurisdiction on these former tidelands, overall comprehensive planning is nonexistent. The CCMP document states that before July 1, 1978, BCDC and the Coastal Commission will conduct a joint review of the two California segments to determine how the coastal management program administered by these two commissions shall be related to the Coastal Act (page 34). We strongly recommend that when this review is conducted that the boundary inconsistency between the two segments in the treatment of wetlands and sub and intertidal flats be addressed and that all efforts be taken to strengthen the BCDC boundary in these areas. 12 Permissible Uses The California Coastal Act (SB 1277) policies are the major determinants regarding permissible uses in the coastal zone. Although conflicts may occur among different policies of the Act, the Act specifically provides for resolution of such conflicts through Section 30007.5 which states: ". . . such conflicts be resolved in a manner which on balance is the most protective of significant coastal resources." We commend California for the insight to provide for a resolution of conflict. However, a few changes to the sections dealing with permissible uses are necessary for clarity. Chapter 7 of the California Coastal Act regards development controls and Section 30610 specifically lists the types of coastal development which would not require a coastal development permit. Included in this list is maintenance dredging of existing navigation channels. We believe the CCMP document should identify why these types of coastal development have been excluded from the permit process. Furthermore, we strongly object to the following statement found on page 111: "Section 30610 and 30610.5 provide for numerous exclusions from the permit process which under normal conditions would have no direct or adverse impacts on the coastal~environment " (emphasis added). In an aquatic environment change is often the rule and "normal" conditions may have little meaning. More precise terminology is therefore needed. Secondly, it is well -documented that dredging results in temporary turbidity, can result in reduced water quality, and can adversely impact fish and other aquatic organisms. These concerns could be alleviated if the CCMP document clearly stated that although certain types of coastal developments are excluded from the State permit process, Federal permits (e.g., Corps of Engineers, Environmental Protection Agency) are necessary for these developments. During the June 20th meeting the CCC staff/OCZM agreed to revise this section in light of our comments. The CCMP document should contain methods or procedures for analyzing the impacts of the uses on the natural environment and procedures whereby the uses could be modified, if necessary. For example, the present California approach will be to concentrate coastal dependent facilities in already developed areas. As the program states on page 129, this may result in "environmental 'hot spots'." Thus, it is logical that if an area becomes significantly degraded, the Coastal Commission or the local jurisdiction may wish to alter the permissible use of the area and undertake measures to restore the particular area. The program does not clearly state how such a modification could be made nor does it provide a means to analyze the impact of the use on the resource. These should be specified. This issue is addressed in more detail in our comments provided herein on local coastal programs. 13 Areas of Particular Concern The CCMP document indicates that all areas within the coastal zone are areas of particular concern. Within this concept the State- identifies "more specific areas of concern" (page 31) and "sensitive coastal resource areas" (page 32). However, during our meeting with the CCC staff and OCZM on June 20, we were informed of a staff memo dated April 28, 1977, to the State Commissioners from Executive Director Bodovitz recommending that no sensitive coastal resources areas be designated. Thus, California is taking a new approach in addressing geographical areas of particular concern (GAPC) by asserting that the entire coastal zone be considered a GAPC. The rationale for this concept is based upon the difficulty of establishing firm and precise boundaries around specific coastal areas which obviously are affected by adjacent coastal activities and the possible adverse implications of developing a management program for the specific area which might be inflexible in light of the changing, dynamic natural resource system. We believe that the approach of designating the entire coastal zone as a GAPC is workable since adequate regulatory authority apparently exists. However, this conceptual approach to GAPC designation may pose a problem in a literal interpretation of Section 305(b)(3) of the Coastal Zone Management Act and may not conform to OCZM's regulations for Section 306. We strongly urge OCZM to initiate prompt action to clarify this issue by appropriately modifying their regulations. Should the California Coastal Commission choose not to accept the staff recommendation of April 28, 1977, or if this decision is not made prior to formal program approval, then the CCMP document should be significantly enhanced to address our following concerns. It appears that the designation of GAPC's as defined in paragraph 2, page 30 (CCMP document) would characterize better what Congress intended in the Act. However, boundaries and management plans for these areas would need to be clarified prior to program approval in accordance with NOAA regulations (923.13(a)). The CCMP document intends that the "sensitive coastal resource areas" element of the coastal program are to be applied to areas that cannot be protected solely through local zoning ordinances. These areas have been specifically defined by Section 30116 of the California Coastal Act, and such areas must be designated by the California Coastal Commission and adopted by the State Legislature in order for the designation to be effective. While the procedures appear workable, we believe that "sensitive coastal resource areas" should have specifically stated and included critical habitat of endangered or threatened species. Furthermore, specific criteria or parameters for selection of these sensitive coastal resource areas and their boundaries are lacking. These should be specified along with the designations prior to program approval . In addition to the lack of specific critical habitats, the California Program is weak in addressing endangered and threatened species in general. We view 14 this as a serious deficiency in the Program particularly since California has more listed endangered and threatened species than any other State in the Nation with the exception of Hawaii. Additionally, California has entered into a cooperative agreement with the Fish and Wildlife Service and has received a grant for protection and conservation of the State's endangered and threatened species and their critical habitat. Thus, we strongly recommend that any California Program criteria developed for the selection of "sensitive coastal resource areas" should recognize this cooperative agreement and the responsibilities inherent in this agreement. The program should also clearly establish procedures whereby areas not originally designated as "sensitive coastal resource areas," but later deemed necessary, could be added and accorded appropriate State management emphasis. The program states on page 86 that September 1, 1979, may be the last day for the Legislature to approve a Coastal Commission designated "sensitive coastal resource area," but it is not clear whether or not this is a yearly process. We urge California to clarify this matter since the program should include a means to designate such areas in the future. \ California has also enacted a bill (AB 3544) which authorizes the establish- ment of a new State organization, the State Coastal Conservancy, which will complement the implementation of the program. The State Coastal Conservancy will be primarily responsible for implementing programs associated with agricultural lands protection, area restoration, public access, and resource enhancement in the coastal zone. We particularly commend California for establishment of the State Coastal Conservancy and its associated policies. The bill states that "resource protection zones" shall be established around parks, natural areas, and fish and wildlife preserves in the coastal zone to act as buffer areas, and we commend California for this action since this should aid in assuring that surrounding development will be compatible with the existing resource values of the area. The State Coastal Conservancy will also have the ability to award grants to local public and State agencies for purposes of resource enhancement or for coastal restoration projects. However, the State Coastal Conservancy bill requires that all areas proposed either for resource enhancement or coastal restoration must be identified in local coastal programs "as requiring public action to resolve existing or potential development problems." This implies that a degraded coastal area could only be restored, under these provisions, if the area was "an existing or potential development problem." Although we support the concept of resource enhancement and restoration, we believe the State has apparently overlooked some degraded coastal areas which could significantly benefit by restoration actions. For example, a degraded marsh area could be restored and through its improved ability to support fish and wildlife resources, the area could indirectly benefit the State's economy. It is unfortunate that such provisions are not incorporated into the State's policies regarding restoration and resource enhancement. Additionally, we note that the local coastal programs must identify such areas to the State Coastal Conservancy. 15 Parameters for selection of these areas by local jurisdictions are lacking in the California Program, and we recommend that such parameters be either (1) developed and incorporated into the program prior to Section 306 program approval, or (2) developed under an initial Section 306 task and incorporated into the program through the amendment process prior to certification of any local coastal program or port plan. During the June 20 meeting the CCC Staff recognized the validity of this concern and informed us that they are presently pursuing ways to make a preliminary identification of areas appropriate for State Coastal Conservancy action prior to their official designation by local coastal programs. We believe such early designation is needed. 16 Port Master Plans Several of our comments pertaining to local coastal programs are also applicable to port master plans. For example, we question how the National interest will be addressed in the development of the port master plans, particularly since neither the CCMP document nor the draft EIS address Federal agency involve- ment in the development of these plans. We note, however, that Section 30712 of the Coastal Act mandates that the port governing body shall, upon request, provide copies of draft port master plans to governmental agencies and encourages governmental agencies to submit relevant statements for considera- tion by the port governing body. We also understand that the adopted State Port Planning Regulations, which serve as guidelines to the ports for development of the port master plans, require the ports to hold a local public hearing on the plan. This hearing would apparently serve as another opportunity for Federal agencies to provide comments relevant to their National interest responsibilities. Since the CCMP document is the basis for approval of the Program by the Secretary of Commerce, it should describe in detail how the National interest will be considered in the development of and certification process for port master plans. We are also concerned about the special prerogatives accorded to developments in ports. Dredge and fill activities would be permitted under many conditions throughout the ports, excluding "wetlands," "estuarine" and "recreational" areas. However, these wetland, estuarine and recreational areas to be excluded under the port planning provisions of the Coastal Act of 1976 have already been officially designated without the benefit of recent coordination with the Fish and Wildlife Service (FWS). We are concerned that other wetland and estuarine areas may exist in these ports and these would not be accorded protection under the Coastal Act provisions of Chapter 3 but would be subject to the port provisions of Chapter 8. This concern may be alleviated when the FWS has completed review of the detailed port maps. We are also concerned that although the entire Port of San Diego has been designated an estuary by the State, it apparently has been excluded from the protective provisions accorded extuarine areas and thus would appear to be governed according to port policies. During our meeting on June 20, the CCC staff informed us that although the Port is designated an estuary, all wetlands officially designated within the Port's jurisdiction shall be subject to the provisions of Chapter 3 of the Coastal Act. This should be clarified in the final CCMP document. Also, we question what activities will constitute "minor" amendments to the port master plans, as stated in Section 30716(b) of the California Coastal Act, and thus not be required to comply with Section 30714 of the Act. This should be clarified prior to program approval. 17 Our last concern relates to unanticipated conflicts between port master plans and national interest requirements of the CZMA. We described this in the section on "Local Coastal Programs," above and would like to insure it is resolved for ports also. In light of the above, we shall reserve our judgment on this section until we have had the opportunity to review the detailed maps of the Ports and until we have reviewed the final CCMP document which hopefully will address and clarify our major concerns. 18 OCS Oil and Gas On page 74, there is a section on Federal licenses and permits subject to State certification for consistency. This section spells out projects that will always be subject to license and permit certification by the State, such as artificial islands and structures on the OCS, offshore drilling, etc. As worded, the CCMP could be interpreted in a way which overextends the authority given to the State in Sec. 307(c)(3) of the CZMA. This section of the Federal consistency provisions states that if a Federally licensed or permitted activity is described in detail in a plan for OCS exploration or development which affects any land use or water use in the coastal zone of a State, and the State concurs with the certification that the activities described in detail in the plan are consistent with its approved CZM program, then sub-paragraph (A) which gives the State permit review authority over those activities does not apply. On this basis, the State cannot then presume to have duplicative review authority for various activities within an OCS development plan. Thus, the State would have review authority for activities which affect the coastal zone and are described in detail in an exploration or development plan, or for a licensed or permitted activity which was not described in detail in the exploration or development plan, but would affect land or water uses in the State's coastal zone, but not both. On page 76, footnote #2, the Department does not accept the position that OCS leasing is subject to consistency review. (Ref. DOI Solicitor's Opinion, May 6, 1977, on the subject of Consistency Requirements of CZMA and OCS Oil and Gas Development . ) 19 Energy Facilities Planning The relationship between the California Coastal Program and the State Energy Resources Conservation and Development Commission (ERCDC) should be clarified with respect to permit authority and control and designation of sites for power plants and other energy facilities. The content of agreements between ERCDC and the Coastal Commission which relate to control over energy resources and facilities in the coastal zone should be summarized. The authority and conditions, if any, for permits in areas designated as "inappropriate" site should be indicated. In our June 20th meeting with the CCC Staff /OCZM it was agreed that the above items would be clarified in the final CCMP document. Also, on page 57, change item 1) under Energy Facilities Planning Process to read "analysis of the supply and demand for energy for California and the country as a whole , and the need for energy facilities along the Pacific coasts." California must consider national needs as well as its own needs in evolving its resource planning processes. 20 Mineral Development While the CCMP document extensively addresses energy development, non-energy mineral development receives little emphasis. This is a significant short- coming of the CCMP document in light of our national dependence on reasonably priced and accessible mineral supplies. For instance, the CCMP document considers mineral extraction on page 19, under "Marine Mineral Environment." On page 20, however, the plan fails to even include mineral development as a use under "Land Resources." On page 21, the CCMP document states that "Coastal -dependent development shall have priority over other developments on or near the shoreline." Table C, on page 106, lists the primary coastal -dependent developments as "recreation and tourism; housing and urban development; commercial and industrial development; (and) commercial fishing." Mineral development should also fall within this category. The California Program lacks a coastal resources inventory. The CCMP document points out on page 37 that "The most recent and comprehensive inventory of the natural and manmade coastal resources is provided by the Comprehensive Ocean Area Plan (volume 11) completed in May 1972." This work or a more recent inventory should become part of the coastal program, preferably in map form. While the maps in the coastal plan may make up part of California's Program, they fail to show mineral-rich areas. The third paragraph on page 90, under "Probable Impact of the Proposed Action on the Environment," would better explain socioeconomic effects of the program if it read: "Protection of the coastal zone may be viewed as beneficial to the environment and to the public welfare for many reasons; it may also have adverse socioeconomic effects on property owners, would-be property owners, mineral and industrial developers, and the State. " Under the heading "Primary Coastal Plan Policies," Table C, page 106, the Coastal Commission has inserted "protect mineral reserves from urban encroach- ment (30253(3) and (4))." The California Coastal Act sections cited, 30253(3) and (4), make no mention of minerals. Beginning on page 108, the report addresses economic impacts expected from program implementation. The topics covered include construction and manu- facturing industries, commercial fishing and recreational boating, tourism and recreation, agriculture, ports, and aquaculture. Mineral development also deserves attention because this program could adversely affect mineral availability, local and regional revenues, and local employment. The Bureau of Mines can provide mineral information to the State or local entities 21 through its Mineral Industry Location System (MILS). This system holds data on mineral occurrences, prospects, mines, wells, and all immediate consumers of mineral products (including mills, smelters, refineries, etc.). The U. S. Bureau of Mines can also provide mineral employment and economic statistics where available. On page 7-35 of Appendix 7 (Draft Local Coastal Program Manual), the list of Federal agencies to contact for information concerning diking, dredging, filling, and shoreline structures should include the U. S. Bureau of Mines. 22 Historic Resources The Department has concerns for the sections of the CCMP dealing with historic resources. Some of these are listed below. We have -expressed similar and other more general concerns to OCZM in comments on the Washington, BCDC, and Oregon programs. Because these concerns deal with issues common to all State CZM programs, we believe it best to isolate these general concerns from the individual State CZMP documents. Consequently, we will provide to you shortly a letter which details our concerns and can serve as the basis for resolution of these issues. The Coastal Zone Management Act of 1972, as amended, requires that historic and cultural resources be inventoried and designated as part of the coastal management program. Further, OCZM is obligated to comply with the National Historic Preservation Act of 1966, as amended, and Executive Order 11593 and implementing procedures. It is clear from the California Coastal Act (§30116(c), (d), (e); §30244; §30603), the Coastal Conservancy Act (§31351) and the Interpretive Guidelines to these acts that California intends to comply with the provisions in the cited Federal mandates. However, certain aspects of the CCMP document related to historic preservation need to be made more explicit. In particular, although the CCMP document states that historic properties are to be identified after consultation with the State Historic Preservation Officer (SHPO), citizens, and others, the CCMP document does not call for a systematic survey to identify and designate historic and cultural resources. This survey, proposed in the California Coastal Plan of 1975 on pages 169-170, would be adequate if it dealt with the full range of historic resources protected under the 1966 Act. The process for implementation of this program should be specified in detail in the final CCMP document. Also, although the California plan provides for "reasonable mitigation measures" in the case of adverse impacts, there is no indication that development of these measures will include consultation with the SHPO and the Advisory Council on Historic Preservation. Another point for further clarification concerns the omission of historic and cultural resources from certain relevant sections of the CCMP document. We suggest that the CCMP document be modified to explicitly mention these resources in the second paragraph on page 26, in the discussion of significant coastal resources, as an additional item under Environmental Impacts on page 133 of the listing of Impact Assessment Criteria, and in the listing of Areas of Concern in Appendix 4, and other places as appropriate. 23 Coastal Access and Recreation The California Program has defined sound policies relating to coastal access and recreation. It is obvious this has not been done without controversy. The California Program has, it is apparent, withstood the controversy and successfully steered through the legislative process a balanced and commend- able approach to access and recreation. Goal (c) on page 97 is laudatory and compatible with and supportive of the program of the Bureau of Outdoor Recreation (BOR). The implementation of this goal should pose no conflicts for BOR. Moreover, BOR strongly supports California's approach and is willing to provide whatever assistance it can during implementation. 24 Natural Hazards We are pleased that the California Coastal Act addresses natural hazards with respect to development (p. 22 of the CCMP). Most of the hazards which are significant in California are covered by the Act's development policies. We suggest however that prior to approval or as a task under the 306 work program, California formulate a program of affirmative natural hazard management. Protection from wave damage from Tsunami, which is not mentioned in the Coastal Act, along with the other coastal hazards, should be considered in formulating such a management program. (Reference: White, Gilbert F. et al , Natural Hazard Management in Coastal Areas , Nov. 1976, Wash., D. C. ) 25 General Coastal Development The quote from the Coastal Act which appears on page 21, subparagraph (a) under General Coastal Development is unclear and in need of explanation. It could be interpreted to preclude or restrict high density clustered development pockets which would leave larger open space areas. » Also the following sentence is unclear. "In addition, land divisions outside existing developed areas shall be permitted only where 50 percent of the usable parcels in the area have been developed . . .". How can land divisions be permitted "outside existing developed areas" and at the same time be permitted only "within" areas which have been already 50 percent developed? During the June 20 meeting, the CCC Staff and OCZM agreed to clarify this in the final CCMP document. We also believe it would be useful for the CCMP document to summarize or quote by specific references, at this point in the text, the types of development as "otherwise provided in this division." 26 Excluded Federal Lands The Department's Bureau of Indian Affairs has found that no Indian lands are involved from the California-Mexico border north 'to Point Arena. At Point Arena, Big Lagoon, Trinidad, Klamath River and Fort Dick there are Indian lands within the coastal zone boundary which are excluded and also as we understand from OCZM are not subject to the requirement of §307 of the CZMA. The Department encourages the State of California to coordinate its CZM planning efforts with the groups of Indians on these lands, we believe an exchange of information relevant to CZM would be beneficial to both the State and the Indians. 27 Miscellaneous Comments, By Page Number )n page 5 under 2. Policies, Recreation and/or elsewhere in the text of the XMP document as appropriate, an indication should be given of the difference >etween policies for commercial and private recreational boating and fishing. rhe CCMP document seems to attempt to avoid the subject. While the Depart- nent generally supports California's recreational policies, we believe they should be discussed in more detail to clarify the requirements of the Coastal tet. \lso on page 5 under 2. Policies, marine environment , and elsewhere in ;he text as appropriate mention should be made of mineral mining and -esolution of conflicting marine uses. Under Land Resources , mineral 'esources should be listed. in pages 7 and 33 and elsewhere in the text as appropriate, the term "within 00 feet" and "within 300 feet" should be clarified as to whether this refers .0 distances measured horizontally, vertically or a straight line measurement long the ground. This definition is missing both in the Coastal Act and he CCMP document. in page 7 in paragraph 7 and elsewhere in the text, in the phrases "major lublic works project" and "major energy facility," the word "major" is ndefined. It should be defined and discussed. he various sections on the "marine environment" (pps. 18-20) give no ttention to historic resources; these resources are apparently thought to iccur only on land. This is not the case; submerged prehistoric sites are 'ell known off the California coast, as are historic shipwrecks. in page 19 in the quote from Section 30233 of the Coastal Act, and elsewhere n the text limits on diking, filling or dredging for new or expanded coating facilities are not adequately defined. These limits should also >e tightened and justified. 'age 36, 5th paragraph, states "When the Coastal Commission . . . eventually ransfers permit authority ... to local governments upon the certification tf local coastal programs, it is expected that performance standards will .till be applied to coastal developments, (emphasis added). This language s not acceptable. If the entire basis for permissible uses in the CCMP locument is performance standards, their use should not be optional at the ocal level. See also our comments under Permissible Uses . n the discussion of priorities on page 40, no attention is given to the protection of historic resources. !n the discussion, on page 54, of areas within ports where protective •olicies will be applied, no attention is given to historic resources. )n page 76, the title should be "DEFINITIONS," not "REFERENCES." 28 Coordination is discussed on pages 78 to 89. Page 86 states that the Coastal Commission will coordinate local program development with Federal programs and will involve Federal agencies in implementing Section 308 of CZMA. This is no indication as to how this will be done. We foresee potential problems in the event adequate coordination is not achieved. Additionally, there is no indication as to what weight the views of Federal agencies will be given in the decision making process. This should be explicitly spelled out before any decision is made regarding acceptance of the Program. 29 Draft Environmental Impact Statement Comments We feel the draft environmental impact statement, in-order to be a full disclosure document as required by Section 102(2 )C of the National Environ- mental Policy Act of 1969, should 1) adequately describe how the California Program will interface or replace existing programs and 2) evaluate the impacts that acceptance of the California Program will have on existing programs arid authorities. The rationale for these recommendations is given below. In addition we have listed other DEIS comments by page number. The Federal consistency provisions of the Act require that Federal agencies conduct their activities "to the maximum extent practicable, consistent with approved state management programs." The draft statement describes the relationship between certain direct Federal activities and the program and discusses to a limited extent the interface with the Federal permit programs (e.g., if the Coastal Commission finds a proposed project to be inconsistent with the program, Federal agencies cannot issue a permit without a Secretarial override). However, the draft statement fails to note the consequences that would arise should the Coastal Commission judge a particular permit application as being consistent with the State's Program, but the application does not qualify for Federal regulatory permit approval. The section entitled "Probable Impact of the Proposed Action on the Environ- ment" should be expanded. First, it compares expected conditions under the CCMP with past conditions prior to the CCMP, not with existing conditions. For example, page 123 cites the tremendous wetlands destruction that took place in the past, superimposes expected future conditions under the Program, and indicates that the net beneficial effect is a result of Program acceptance We also feel the draft statement could be improved by comparing the expected conditions of the program with the conditions that exist today. The draft statement could also be improved by noting the effects the Program will have on existing Federal and other State of California programs and authorities. These effects are expected in some cases to be substantial and should be discussed in detail to alert Federal and other State agencies and to provide Federal agencies with an opportunity to present their views as required by Section 307(b) of the CZMA. NOTE TO READERS on the back of the title page, the last line of the second paragraph, change "net environmental gain" to "net benefit to the environment". On page ii, in the list of Federal Agencies from whom comments were requested, a "National Historic Preservation Officer" is referred to. There is no official with this title. There are only State Historic Preservation Officers On pages iv-vi, we see no evidence that appropriate historic and archeological societies, such as the Society for California Archeology, have been asked to comment on the DEIS. These are unfortunate omissions. 30 We are pleased to see on pages 81 and 82 that the CCMP document addresses in a frank manner the economic impacts of the Program. On page 124 and throughout the draft statement and the California Coastal Act, reference is made to mitigation. It is apparent, however, that Section 30607.1 misinterprets the word. Purchase of other lands alone cannot mitigate or ameliorate the adverse impacts on fish and wildlife resources of a particular action. Mere exchange of ownership does nothing to rectify the loss of organisms and their habitat. The section entitled "Probable Adverse Environmental Effects which Cannot be Avoided," on page 141, does not discuss impacts on historic resources. Such impacts could be avoided, or mitigated, if improvements were made in California's approach to historic preservation planning in the coastal zone. Attachment B CALIFORNIA COASTAL COMMISSION 1540 Market Street, San Francisco S4102 - (415) 557-1001 June.l, 1977 TO: All State and Regional Coastal Commissioners and Interested Parties FRCM: Joseph E. Bodovitz, Executive Director, State Commission SUBJECT: Status of Commission Planning and Permit Documents 1* Interpretive Guidelines Statewide Interpretive Guidelines on several issues were adopted by the State Coastal Commission on May 3» 1977 • A ccpy of the guidelines that have been adopted in final form is enclosed. Other guidelines are under considera- tion but have not yet been adopted in final form. 2* Local Coastal Program Regulations Regulations guiding the preparation, review, and certification of Local Coastal Programs were adopted by the State Coastal Commission on May 17 » 1977 » as Chapter 8 of the Commission's regulations. A copy of these LCP Regulations is enclosed. 3» Commission Permit Regulations and Port Planning Regulations Permit regulations, covering general permit procedures, of the State and Regional Commission, processing of permits, optional permit processing by local governments, potential exclusions from coastal permit requirements, and claims of vested rights were adopted by the State Commission in final form on May 3r 1977 • (Emergency regulations had been adopted on January 12, January 25, and subsequent revisions.) Also adopted on May 3 were regulations covering plans for the Ports of Port Hueneme, Long 3each, Los Angeles, and San Diego. Copies wilVbe available from the Commission shortly and the official printed version, in the State Administrative Code, will become avail able from the State Printer in several months. /+• Local Coastal Program Manual The LCP Manual, an informal hcw-to-do-it guide for use in preparing LCPs, was published as a first draft on February 1 the plan seems to indicate that Federal agencies must utilize some other procedure, such as A-95 if they do not wish to participate in the MOU process. It would appear that the present plan would not conflict with our position as DOT intends to utilize A-95. However, we do want to be on record, one final time, incpposition to MOU's in the event the Coastal Commission attempts to require their use as a final effort in making all actions consistant administratively. (c) Federal Applicant Tor a Federal Permit . The plan states that no project requiring a Federal license or permit may proceed until the "applicant" has received certification Irom the Coastal Commission on the consistency of the project. We feel that Section 30/ (c) (3) of the coastal Zone Management Act does not require a Federal applicant to obtain state certification when applying for a Federal permit. This has been a recurring issue with both of the California plans and one which NOAA has resolved, at least in the interim until revised, Federal consistency regulations are promulgated, in our favor. We continue firm in our opposition to the ambiguity which exists in the California Coastal Plan where they do not clearly state that Federal applicants for Federal permits are not subject to the state certification process. (d) Consistency Determination, pages 72-75 • Subject document states that the Coastal Agency will make the determination as to whether a specific activity will affect the Coastal Zone and will also determine if it is fully consistent with the management program. Our position remains one that the Federal Agency determines consistency and provides this certification to the state. In the plan the state delegates to local government the authority to act on behalf of the state in making decisions as to whether the Federal action permit assistance and other activities are consistent with the state and local programs. There is a possibility that local government may not be objective or interested in activities that have regional significance. Such matter would be better left to a state commission. This plan also establishes the Secretary of Commerce as a mediator in the case of interagency disagreement (page 7^). We suggest there be consultation between Federal Departments rather than submittal for mediation. (e) Listing of Federal Licenses, page 7^ - The plan lists "permits for operation of airports" as a Federal license sublet to certification for consistency. We a?e uncertain what is meant by the phrase "Permits for operation of airports". We assume that it is intended to refer to the issuance of new Airport Operating Certificates issued under Part 1^9 of the Federal Aviation Regulations. This should be more precisely identified so that the legal basis for imposing such a requirement can be lully explored. Also the listing includes the Coast Guard for bridge construction permits but does not; include Federal highway Administration. Although the listing is technically correct in that FHWA does not issue permits, its role as leaa agency where h'ederal-aid highway funds are involved should be stated to avoid any questions concerning procedure. Other areas of concern ana further comments are as follows: (1) The proposed program will impact Federal-aid highway projects in the coastal zone as early coordination with Coastal Commission will become a Federal requirement (page yl) . (2) The document contains many unsupported statements as to benefits expected from the plan. An example is the last line on page 101, (3) The statement acknowledges that there will be "hot spots" or pollution, especially, in areas where the recommendations are for intensification to existing development. There is no indication as to how these "hot spots" are to ce treated and there are no mitigating measures proposed. (4) In addition, we would like to advise that this proposed program may nave an impact upon several of the airports located within the management area. Therefore, it is suggested that direct contact be made with eacn of the public airports for making this determination. We appreciate this opportunity to review and comment on this important program, and we will continue to welcome such opportunity. Sincere] „ hAWLEY Secretarial Representative cc: Mr. Martin Convisser, Director, Office of Environmental Affairs, DOT FHWA FAA (Los Angeles) FAA (Burlingame) USCG (Pacific Area) Acting Sec Reps, Kegions I - X DEPARTMENT OF THE TREASURY WASHINGTON. DC. 20220 May 12, 1977 Dear Mr. Dehart: Thank you for forwarding the revised draft environmental impact statement on the California Coastal Management Program for this Department's information and review. The Department has no comment on the revised statement, but we would appreciate receiving a copy of the final EIS. Assistant Director Office of (Environmental Programs) Lstrative Programs Mr. Grant Dehart Office Of Coastal Zone Management 3300 Whitehaven Street, N. W. Washington, D. C. 20235 GENTLEMEN: MY NAME IS CAPTAIN WAYNE COLLINS. I AM THE HEAD OF THE FACILITY PLANNING AND REAL ESTATE DEPARTMENT AT THE WESTERN DIVISION OF THE NAVAL FACILITIES ENGINEERING COMMAND LOCATED IN SAN BRUNO, CALIFORNIA. THE NAVY IS PLEASED TO TAKE THIS OPPORTUNITY TO COMMENT DIRECTLY TO REPRESENTATIVES OF THE DEPARTMENT OF COMMERCE REGARDING CALIFORNIA'S COASTAL MANAGEMENT PROGRAM. THE NAVY SUPPORTS THE GOALS OF BOTH THE STATE OF CALIFORNIA AND THE FEDERAL COASTAL ZONE MANAGEMENT ACT TO ENSURE THAT THIS COUNTRY'S COASTAL AREAS ARE OPTIMALLY PLANNED AND UTILIZED TO BEST ACCOMMODATE THE NEEDS OF THE NATION AND OF THE STATES. THE UNITED STATES NAVY IS A MAJOR COASTLINE USER AND DEVELOPER AND, AS SUCH, IS ALSO CONCERNED ABOUT INCOMPATIBLE COASTAL ZONE MANAGEMENT. OF PARTICULAR CONCERN ARE ACTIONS WHICH MIGHT RESTRICT THE ABILITY OF THE NAVY TO CONDUCT OPERATIONS ESSENTIAL TO MAINTENANCE OF OPERATIONAL READINESS, THE NAVY HAS PARTICIPATED IN REVIEWS OF THE CALIFORNIA COASTAL MANAGEMENT PROGRAM AS IT HAS DEVELOPED OVER THE LAST SEVERAL YEARS. WE APPRECIATE THE COOPERATION OF THE STAFF OF THE CALIFORNIA COASTAL ZONE COMMISSION IN PROVIDING ADVANCE DRAFTS OF MANY DOCUMENTS AND OTHER COURTESIES WHICH HAVE AIDED OUR PARTICIPATION. THERE ARE, HOWEVER, SEVERAL NAVY CONCERNS WITH REGARD TO THE CALIFORNIA COASTAL PROGRAM, PRIMARILY DEFICIENCIES IN DELINEATING INTERFACES BETWEEN THE STATE AND FEDERAL AGENCIES /ACTIVITIES AS PRESCRIBED BY THE FEDERAL COASTAL ZONE MANAGEMENT ACT. I WOULD LIKE TO SUMMARIZE THESE CONCERNS. FIRST, THE FEDERAL ACT, REINFORCED BY AN OPINION OF THE U. S. ATTORNEY GENERAL IN AUGUST OF 1976, EXCLUDES FROM THE COASTAL ZONE, LANDS OWNED BY THE FEDERAL GOVERNMENT. NOAA REGULATIONS REQUIRE THE STATE'S MANAGEMENT PROGRAM TO IDENTIFY ALL FEDERALLY-OWNED LANDS OVER WHICH A STATE DOES NOT EXERCISE CONTROL AS TO USE. THE STATE ACT (SECTION 30008) PROPERLY EXCLUDES FEDERAL PROPERTY FROM THE COASTAL ZONE, BUT THE DEFINITION OF "COASTAL ZONE" (SECTION 30103(a)) DOES NOT. THE MAPS APPROVED BY THE STATE LEGISLATURE ON 11 AUGUST 1976 DO NOT IDENTIFY FEDERALLY OWNED LANDS OR EXCLUDE THEM FROM THE COASTAL ZONE. THEREFORE, THE MAPS DO NOT CONFORM TO THE FEDERAL ACT AND WILL MISLEAD THE GENERAL PUBLIC WITH REGARD TO THE DEGREE OF COASTAL ZONE CONTROL HELD BY THE STATE. IT IS UNDERSTOOD THAT CORRECTION OF THE MAPS WILL REQUIRE STATE LEGISLATIVE ACTION. IT IS FURTHER NOTED THAT COPIES OF THE MAPS WERE NOT PROVIDED IN THE PROGRAM DESCRIPTION FOR REVIEW REFERENCE. AS A RELATED ITEM, THE STATE HAS CONTINUED TO DESIGNATE FUTURE CIVILIAN USES FOR PORTIONS OF SEVERAL EXCLUDED NAVY AND MARINE CORPS INSTALLATIONS. (SEE APP. 5 NOS. 162, 184 - 187 AND ATTACHMENT "E" PAGE E-40). STATE ACQUISITION IS PROPOSED THROUGH FEDERAL TRANSFER OF LANDS. THE NAVY HAS NO OBJECTION TO PLANNING FOR FUTURE CIVILIAN USE OF EXCESS OR SURPLUS EXCLUDED FEDERAL LANDS, BUT NONE OF THE NAVY/MARINE CORPS PROPERTY IN QUESTION HAS BEEN DECLARED EXCESS. IN PREPARATION OF ITS MANAGEMENT PROGRAM, THE STATE IS REQUIRED TO GIVE ADEQUATE CONSIDERATION TO THE VIEWS OF THE FEDERAL AGENCIES INVOLVED. THE NAVY CANNOT CONCUR WITH PUBLICATION OF ANY CALIFORNIA COASTAL MANAGEMENT PROGRAM OR DOCUMENT WHICH DEPICTS PROFOSED CIVILIAN USES FOR NAVY OR MARINE CORPS PROPERTY WHICH HAS NOT BEEN FORMALLY IDENTIFIED AS EXCESS. THE NAVY IS ALSO CONCERNED ABOUT THE LACK OF AN APPROPRIATE "NATIONAL INTEREST" STATEMENT IN THE CALIFORNIA COASTAL MANAGEMENT PROGRAM. AS REQUIRED BY THE FEDERAL ACT, THE MANAGEMENT PROGRAM SHOULD PROVIDE FOR ADEQUATE CONSIDERATION OF THE NATIONAL INTEREST IN SITING OF FACILITIES WHICH ARE NECESSARY TO MEET 2 REQUIREMENTS WHICH ARE OTHER THAN LOCAL IN NATURE (306(C)(8)). NOAA REGULATIONS LIST 8 NATIONAL INTEREST REQUIREMENTS WHICH MUST BE CONSIDERED, ONE OF WHICH IS NATIONAL DEFENSE AND AEROSPACE. THE CALIFORNIA ACT TAILS TO REQUIRE THIS NATIONAL INTEREST PLANNING CONCERN, PARTICULARLY INSOFAR AS NATIONAL DEFENSE IS CONCERNED. IT IS UNDERSTOOD THAT DRAFT LOCAL COASTAL PROGRAM REGULATIONS UNDER REVIEW BY THE COASTAL COMMISSION THIS WEEK MAY COVER THIS ISSUE, BUT THE DRAFT REGULATIONS ACCOMPANYING THE PROGRAM DESCRIPTION DO NOT. AN ADEQUATE STATEMENT OF THE PRIORITY OF NATIONAL DEFENSE AND NATIONAL SECURITY IS PROVIDED IN CHAPTER 11 (PAGE 69) OF THE PROGRAM DESCRIPTION, BUT IS MISSING FROM THE LEGISLATION ITSELF. DRAFT LOCAL COASTAL PROGRAM REGULATIONS AND INTERIM GUIDELINES WERE PROVIDED FOR REVIEW AT THE SAME TIME AS THESE DRAFTS WERE STILL BEING REVISED AND PUBLIC HEARINGS ON THEM WERE STILL BEING CONDUCTED. WE CANNOT BE CERTAIN HOW NAVY COMMENTS ON THE DRAFT INTERIM GUIDELINES AND LOCAL COASTAL REGULATIONS AND MANUAL ARE BEING CONSIDERED. ALSO, I HAVE ALREADY NOTED THAT THE MAPS WHICH ACTUALLY DEFINE THE BOUNDARIES OF THE COASTAL ZONE WERE NOT PROVIDED WITH THE REVIEW MATERIAL. THESE PROBLEMS COMPLICATE A GOOD REVIEW. OUR PURPOSE AS A FEDERAL AGENCY IS TO BE CONSISTENT INSOFAR AS PRACTICABLE WITH STATE PROGRAMS BUT THUS FAR WE ARE HAVING DIFFICULTY IN DEFINING THE STATE PROGRAM AND WHAT THE STATE IS COMMITTED TO SO THAT WE CAN WORK TOWARD CONSISTENCY. WITH REGARD TO CONSISTENCY, I HAVE ALREADY MENTIONED THAT WE FEEL THAT THE STATE PROGRAM MUST ACKNOWLEDGE THE NATIONAL INTEREST REQUIREMENT. THERE MAY BE PROBLEMS IN COVERING THIS NATIONAL INTEREST CONCERN WITH THE EXISTING LANGUAGE. THE FEDERAL COASTAL ZONE MANAGEMENT ACT, SECTION 307(E)(1) DOES NOT DIMINISH FEDERAL JURISDICTION, RESPONSIBILITY OR RIGHTS IN PLANNING, DEVELOPMENT, OR CONTROL OF WATER RESOURCES, SUBMERGED LANDS, OR NAVIGABLE WATERS. WE ARE CONCERNED, HOWEVER, THAT THE NAVY'S JURISDICTION, RESPONSIBILITY, AND RIGHTS COULD BE DIMINISHED AS A RESULT OF THE FACT THAT THE CALIFORNIA COASTAL ACT 3 FAILS TO MENTION THE NAVY AS A COASTAL-DEPENDENT DEVELOPMENT. NAVY ACTIONS TAKE PLACE NOT ONLY ON EXCLUDED LANDS BUT ALSO WITHIN THE COASTAL ZONE IN THE STATE WATERS AND OVER STATE SUBMERGED LANDS. THE STATE ACT DOES PROVIDE A LIMITED NUMBER OF COASTAL-DEPENDENT USES AS EXCEPTIONS FOR WHICH CERTAIN COASTAL ACTIVITIES MAY BE UNDERTAKEN. OUR POSITION IS THAT NATIONAL DEFENSE ACTIVITIES SHOULD BE SPECIFICALLY ADDED TO THE LISTING OF THESE PERMITTED ACTIVITIES IN THE FOLLOWING SECTIONS OF THE STATE ACT: (1) SECTION 30001.2 REGARDING SIGNIFICANT ADVERSE EFFECTS ON COASTAL RESOURCES OR ACCESS CAUSED BY CERTAIN NECESSARY DEVELOPMENTS. (2) SECTION 30233(A) PERMITTING DIKING, FILLING, OR DREDGING OF OPEN COASTAL WATERS, ESTUARIES, ETC. UNDER CERTAIN CONDITIONS. (3) SECTION 30235 REGARDING SHORELINE CONSTRUCTIONS THAT ALTER NATURAL SHORELINE PROCESSES, E.G., BREAKWATERS, GROINS AND SEAWAI LS . A FINAL MAJOR CONCERN DEALS WITH THE CALIFORNIA PERMIT PROCESS. AS DISCUSSED IN THE PREAMBLE TO THE NEW NOAA REGULATIONS FOR FEDERAL CONSISTENCY TO COVER SECTION 307 OF THE FEDERAL ACT (PROPOSED 15 CFR 930), A FEDERAL AGENCY IS NOT SUBJECT TO STATE PROCEDURAL REQUIREMENTS UNLESS CLEARLY DIRECTED BY CONGRESS. SECTION 30600(A) OF THE CALIFORNIA ACT STATES THAT ANY "PERSON" UNDERTAKING ANY DEVELOPMENT IN THE COASTAL ZONE SHALL OBTAIN A COASTAL DEVELOPMENT PERMIT. THE DIRECT FEDERAL AGENCY PERMIT EXEMPTION MUST BE ADDED TO THIS SECTION SO AS TO BE CONSISTENT WITH FEDERAL LAW SINCE SECTION 30111 OF THE CALIFORNIA ACT DEFINES "PERSONS" TO INCLUDE FEDERAL AGENCIES. FEDERAL AGENCIES UNDERTAKING FEDERAL ACTIONS, WITHIN OR OUTSIDE THE COASTAL ZONE, MUST ALSO BE EXEMPTED FROM PERMIT REQUIREMENTS IN SECTION 30610 OF THE COASTAL ACT. IT IS EMPHASIZED THAT THIS EXEMPTION IS MANDATED BY THE INVOLVEMENT OF A FEDERAL AGENCY, AND IS NOT DEPENDENT UPON THE OWNERSHIP OF THE LANDS OR WATERS INVOLVED. THESE COMMENTS SUMMARIZE THE MAJOR COASTAL ZONE CONCERNS OF THE NAVY IN CALIFORNIA. COPIES OF THESE REMARKS ARE AVAILABLE FOR YOUR USE. ATTACHED ARE OTHER RELATED 4 DOCUMENTS CONCERNING THE CALIFORNIA COASTAL PLAN AND MANAGEMENT PROGRAM PREPARED BY MY OFFICE IN THE PAST. A CURSORY REVIEW OF THESE DOCUMENTS PREPARED OVER THE LAST TWO YEARS INDICATES THAT OUR COMMENTS THIS EVENING ARE NOT NEW. WE ARE CONCERNED THAT ACKNOWLEDGEMENT OF THESE ISSUES NEEDS TO BE REFLECTED IN THE STATE'S COASTAL MANAGEMENT PROGRAM. IN SUMMARY, THE MAJOR ISSUES ARE: A. CLARIFICATION OF THE COASTAL ZONE DEFINITION AND REVISION OF MAPS TO DEPICT EXCLUDED FEDERAL LANDS. B. DELETION OF PUBLICLY DISTRIBUTED DOCUMENTS WHICH PROPOSE STATE USE OF NAVY OR MARINE CORPS PROPERTY WITHOUT NAVY CONCURRENCE. C. ADDITION OF AN APPROPRIATE NATIONAL INTEREST AND NATIONAL SECUkii? STATEMENT TO THE STATE MANAGEMENT PROGRAM (I.E., THE STATE COASTAL ACT). D. CLARIFICATION AS TO WHICH DOCUMENT CONSTITUTES THE CALIFORNIA MANAGEMENT PROGRAM. E. INCLUSION OF NAVY ACTIVITIES AS COASTAL— DEPENDENT DEVELOPMENTS AND INCLUSION OF NATIONAL DEFENSE FUNCTIONS WITHIN THE VARIOUS LISTINGS OF PERMITTED ACTIVITIES. F. CORRECTION TO PRESENT LANGUAGE WHICH COULD IMPLY THAT FEDERAL ACTIVITIES MUST OBTAIN STATE PERMITS FOR COASTAL ZONE ACTIVITIES. IT IS THE NAVY'S POSITION THAT THESE CORRECTIONS WILL NOT ONLY BRING THE CALIFORNIA COASTAL ZONE PROGRAM INTO CONFORMANCE WITH THE FEDERAL ACT, BUT WILL ALSO FACILITATE PLANNING COOPERATION AMONG THE AGENCIES INVOLVED. I APPRECIATE THE OPPORTUNITY TO EXPRESS THESE NAVY VIEWS DIRECTLY TO YOU AND I HOPE THESE COMMENTS ARE USEFUL IN THE REVIEW OF THE CALIFORNIA COASTAL MANAGEMENT PROGRAM. THE NAVY LOOKS FORWARD TO THE ULTIMATE APPROVAL OF AN EFFECTIVE STATE PROGRAM AND PLEDGES ACTIVE PARTICIPATION IN THE EXECUTION OF THAT PROGRAM. THANK YOU VERY MUCH. PART TWO STATE AGENCY COMMENTS EDMUND G. BROWN JR. GOVERNOR OF CALIFORNIA Air Resources Board Colorado River Board San Francisco Bay Conservation and Development Commission Solid Waste Management Board State Lands Commission State Reclamation Board Stale Water Resources Control Board Regional Water Quality Control Boards Energy Resources Conservation and Development Commission OFFICE OF THE SECRETARY RESOURCES BUILDING 1416 NINTH STREET 95814 (916) 445-5656 Department of Conservation Department of Fish and Game Department of Navigation and Ocean Development Department of Parks and Recreation Department of Water Resources THE RESOURCES AGENCY OF CALIFORNIA SACRAMENTO. CALIFORNIA Mr. Grant Dehart JUN 2 2 1977 Office of Coastal Zone Management National Oceanic and Atmospheric Administration 3300 Whitehaven N. W. Washington, D. C. 20235 Dear Mr. Dehart: The State of California has reviewed the "State of California Coastal Management Program and Revised Environmental Impact Statement," undated, which was submitted to the Office of Planning and Research (State Clearinghouse) within the Governor's Office. The document was reviewed by the Departments of Conservation, Fish and Game, Parks and Recreation, Water Resources, Navigation and Ocean Development, Health, Food and Agriculture, and Transportation; the Air Resources Board; the State Water Resources Control Board; the Solid Waste Management Board; the Energy Resources Conservation and Development Commission; the Public Utilities Commission; and the State Lands Division of the State Lands Commission. The above State agencies commented extensively on the California Coastal Act of 1976 while it was being considered by the California State Legislature. We have reviewed your submitted document and have no comment to offer at this time. Thank you for the opportunity to review and comment. Sincerely, CLAIRE T. DEDRICK Secretary for Resources "X. FRANK GOOrrSfJN Assistant to the Secretary Projects Coordinator cc: Director of Management Systems State Clearinghouse Office of Planning and Research 1400 Tenth Street Sacramento, CA 9581 4 (3CH No. 77044718) STATE OF CALIFORNIA-RESOURCES AGENCY , pMUNp Q ^M J»., G^.,«., CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD- LOS ANGELES REGION nTT . VTTV Kn % r . ,07 SOUTH BROADWAY, SU.TE 4027 0UR FILE NO .: A I a 5 LOS ANGELES. CALIFORNIA 90012 (213) 620-4460 MAY 2 1977 United States Department of Commerce National Oceanic and Atmospheric Administration Office of Coastal Zone Management 3300 Whitehaven St. N. W. Washington, D. C. 20235 ATTN: Mr. Grant Dehart Gentlemen: We have reviewed the Combined State of California Coastal Management Program and Revised Draft Environmental Impact Statement concerning federal approval of the subject Program. We believe that the water quality impacts of the Program are adequately and correctly considered. Thank you for the opportunity to review this document. Very truly yours, RAYMOND M. HERTEL Executive Officer SOUTH COAST AIR QUALITY MANAGEMENT DISTniCI DISTRICT HEADQUA.RTEP5 9420 TEL';TAR AV!?NUE. EL. MON rt c Al_lf-o UNI A 3 : 7 3 1 ■ I 2 I 3 > 4-13.3931 May 12, 1977 File No . B704-12 L Mr. Grant Dehart National Oceanic and Atmospheric Administration Office of Coastal Zone Management 3300 Whitehouse Street, N.W. Washington, D.C. 20235 Dear Mr. Dehart : COMMENTS ON: Revised Draft Environmental Impact Statement California Coastal Management Program ADEQUACY OF AIR QUALITY ANALYSIS Adequate Inadequate Existing Air Quality in Area. Existing Emissions in Area _ Project Emissions: D IS a s Construction phase Completed project vehicular Stationary D S D @ □ 55 Project Impact on Air Quality t-j j& ABE ADEQUATE MITIGATION MEASURES PROVIDED FOR PROJECT AIR POLLUTANTS? T3 Yes ID No CD Incomplete ARE GROWTH INDUCING EFFECTS OF PROJECT ON POLLUTANT EMISSIONS DISCUSSED? D Yes O No Ef Parti ally A PCD PERMIT POTENTIAL EFFECT ON AIR QUALITY (AQ) D Not required O Beneficial: will probably tend to improve AQ HI Required EH No effect ill May be required, contact Q Impairment: probably no substantial adverse effect Zone office D Unfavorable: may degrade AQ to a significant extent Q Adverse: will degrade AQ to a significant extent El Unknown: cannot be evaluated due to lack of data in EIS. COMMENTS ON DE FICIENCIES: The EIS contains no information on existing air quality and air contaminant emissions in project area nor does it attempt to project any effects the coastal management program might have on future air quality. f-upTifiy. a?:d g EViEv; p.— test ed? S Yer3 D lto If you have any further questions please call me at (213) ^^3-3931 , Ext. 238, Tom Mullins at Ext*2^1 or John Gins at Ext. 2^0. Very truly yours, J. A. Stuart; Executive Of ficer Alan K. Stazer Senior Air Pollution Analvst PART THREE COMMENTS FROM LOCAL GOVERNMENTS S A N T CATALINA C A L I F R N I A SANTA CATALINA ISLAND COMPANY April 22, 1977 GENERAL OFFICES AVALON, CALIFORNIA Mr. Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street N.W. Washington, D.C. 20235 U.S. DEP'T OF COMMERCE, STATE OF CALIFORNIA COASTAL ZONE MANAGEMENT PROGRAM AND REVISED DRAFT EIS Dear Mr. Dehart: We have reviewed the subject program and draft EIS and wish to bring to your attention the proposed policy guidelines for (Santa) Catalina (Island) appearing on page E-40, have not been adopted by the California Coastal Commission and based on our recent communications with the South Coast Commission staff, we understand no final action will be taken until July 1977. During the public hearing procedure regarding the Policy Guidelines in March 1977, we along with representatives from Los Angeles County Department of Regional Planning took specific exception to proposed Guidelines No. 1 & 7, for Santa Catalina Island and presented a written statement to the South Coast Regional Commission, which stated our objections, (see attached copy of our statement) . We were advised by the California Coastal Commission staff these interpretative guidelines were developed in haste without sufficient and in some cases, no communications with local agencies due to lack of time, and that our appeal had been recorded and would be acknowledged. SANTA CATALINA ISLAND COMPANY • P. 0. BOX 737, AVALON, CALIFORNIA 90704 • PHONE: AVALON 605 "SEE AMERICA FIRST" Mr. Grant Dehart April 22, 1977 Page Two If the inclusion of these proposed Guidelines for Santa Catalina Island in the subject program and revised draft EIS is in any way a sanction of/or provides any form of permanency, then we wish to go on record as protesting to the inclusion of Santa Catalina Island Policy Guidelines No. 1 & 7, as shown on page E-4 0, in the U.S. Department of Commerce, State of California Coastal Zone Management pro- gram and revised draft EIS. rhly yo SANTA CA/ALINA ISLAND COMPANY Rudy E./Piltch Chief Planner ec ENCLOSURES cc: Melvin J. Carpenter, Director California Coastal Commission, South Coast Commission DEPARTMENT OF PLANNING CtfgojCMtt^Vste CALIFORNIA May 27, 1977 Office of Coastal Zone Management National Oceanic and Atmospheric Administration 3300 Whitehaven Street, N.W. Washington, D. C. 20235 Attention: Mr. Grant Dehart The City of Chula Vista Planning Department staff has reviewed the Draft Environmental Impact Statement of the California Coastal Zone Management Program/ U. S. Department of Commerce and found it to be an excellent presentation of the California coastal planning program. We would urge the Secretary of Commerce to approve the Coastal Management Program application of the State of California made pursuant to P.L. 92-583. Federal grants are necessary to implement the California coastal planning program and it is imperative that Federal actions on the California coast are consistent with the California program. > * .n—in D. J. PETERSON Director of Planning DJP:NGW:hm 276 Fourth Avenue, Chula Vista, CA 92010 (714) 427-3300 CITY OF HUflTlflGTOn BEACH DEPARTMENT OF PLANNING AND ENVIRONMENTAL RESOURCES P. O. BOX 190, HUNTINGTON BEACH, CALIFORNIA 92648 (714)536-5271 May 31, 1977 Mr. Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street, N.W. Washington, D.C. 20235 Subject: Comments on State of California Coastal Management Program and Revised Draft Environmental Impact Statement Dear Mr. Dehart: This letter addresses the concerns of the Planning staff of the City of Huntington Beach in regard to the Draft Environmental Impact State- ment on the State of California Coastal Management Program distributed for review. Overall, we feel the Environmental Impact Statement adequately addresses the more general impacts of the Coastal Management Program. We do feel, however, that the impacts on specific local governments and areas of the Coastal Zone were not fully addressed. " The Draft EIS does indicate that this specific analysis will occur on a case by case basis as a part of the Local Coastal Management Development Program process. Measures should be instituted to insure that the results of this analysis is considered as part of the Local Coastal Management Program review and certification process. Of special concern is the fiscal impact on individual local governments. In reviewing those areas addressed by the Draft Environmental Impact Statement, the following concerns were raised: (1) The Draft EIS does identify the Coastal Act policies that are the basis for providing additional low cost housing, as well as examples of the Coastal Commission's attempts to provide and preserve low cost housing in the Coastal Zone. However, the Draft EIS does not address the effect the Coastal Management Program will have on the existing low-cost housing supply in the Coastal Zone or urbanized areas adjacent to it. Certainly, as properties that are significant coastal resources are removed from the supply of land available for residential development, either through acquisition or regu- lation, the pressure to develop the remaining supply will increase. The resulting increase in value and increasing pressure to recycle this housing will substantially reduce existing supply of low cost housing. Although the EIS points out that it may not be possible to quantify the exact impact on housing value because of the number of variables involved, some attempt should be made to determine the extent to which the Coastal Act has added to the soaring housing prices in Coastal Southern California. Page 2 (2) The Draft Environmental Impact Statement includes estimates of the costs to prepare Local Coastal Management Programs. On page 118 it is estimated that the costs to jurisdictions will range from a minimum of $10,000 to $20,000, to an upper limit of $100,000. The City of Huntington Beach considers these estimates to be substantially understated. Preliminary estimates of the cost to prepare its Local Coastal Management Program are in excess of $108,000. This is considered a conservative estimate reflecting only the salaries of the additional staff required and the costs of producing and distributing the resulting publications. In addition, another $55,000 is estimated to be acquired for support staff and overhead. This means that Huntington Beach will be re- quired to spend $163,000 to prepare its program. This is con- siderably more than the EIS indicates. (3) While the Draft Environmental Impact Statement does contain dis- cussions of the manner in which the "Interpretive Guidelines" implement the objectives and policies of the Coastal Act, it does not discuss the manner in which the "Interpretive Guidelines" act to limit the implementation alternatives of local governments. The primary concern is the nature of the specific interpretive guidelines that have been proposed but not adopted for each region of the Coastal Zone. The very specific nature of these guidelines appear to predetermine the contents of the ordinances that will implement the Local Coastal Program prior to formulation of the plan and detailed analysis that is necessary. This would seem to limit the manner in which local governments are able to participate and implement the Coastal Act. In conclusion, thank you for the opportunity to review this document. I hope that our comments will benefit your analysis of the California Coastal Management Program. Should you have any questions, please feel free to contact Bryan Austin at (714) 536-5271. Sincerely, EDWARD D. SELICH DIRECTOR Monica Florian Assistant Director EDS : BA : j a CITY OF LONG BEACH THE CITY PLANNING COMMISSION 333 WEST OCEAN BLVD. LONG BEACH, CALIFORNIA 90802 May 27, 1977 Mr. Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street, N.W. Washington, D.C. 20235 SUBJECT: State of California Coastal Management Program and Draft Environmental Impact Statement Dear Mr. Dehart: Our letter of May 26, 1977 to you (copy attached) requested a 2-week extension of time in which to respond to the Draft Environmental Impact Statement. Subsequent to that letter, we have been in contact with you and were advised that an extension would be infeasible on this project. We are, therefore, enclosing a copy of the Planning Depart- ment's preliminary review of the project. Upon completion of the review by the City Planning Commission, this office will forward to you any comments that body may have on the subject project. Mery truly yours , ROBERT PATERNOSTER Director of Planning BY G. H. FELGEMAKER Principal Planner Environmental Planning Division RP:GHF:amb End osures (2) CITY OF LONG BEACH, CITY PLANNING COMMISSION COMMENTS ON DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR THE COASTAL MANAGEMENT PROGRAM Due to the nature of the subject and the specification of funding/ the Environmental Impact Statement is general. However, certain specific programs, policies and procedures which will be directly and indirectly funded, will have adverse impacts upon the Long Beach environment and/or the citizens of Long Beach as well as other communities. Therefore, it is requested that the EIS be expanded to address impacts of the following: o Temporal and economic impacts due to the maintenance of the definition of "project" to include temporary structures o Temporal and economic impacts due to present policy of denying coastal permits for major projects on the basis of prejudice of the local coastal plan. o Impacts both environmental and socio/economic caused by the implementation/enforcement of interpretive guidelines and the manual . o Social impacts caused by a divergence of views and Drin- ciples of the Commits ion and municipal agencies. o Economic and temporal impacts caused by the appeal process. o Temporal and economic impacts caused- by potential need for updating the local coastal plan and for issuing local development permits once the local coastal plan is certified. o Economic impacts caused by the limited State and Federal funds available to prepare the local coastal plan. CITY OF LOS ANGELES REX B.'LAYTON CITY CUM WHIN MAKINO INQUIRIES RELATIVE TO THIS MATTER. REFER TO FILE NO. 72-4317, S-7A & S-7B CALIFORNIA TOM BRADLEY MAYOR OFFICE OP CITY CLERK ROOM 3>g. CITY HALL LOS ANGELES. CALIF. 90012 488.3703 May 13, 1977 Mr. Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street, N.W, VJashington, D.C. 20235 STATE OF CALIFORNIA COASTAL MANAGEMENT PROGRAM AND REVISED DRAFT ENVIRONMENTAL IMPACT STATEMENT Attached are comments pertaining to the subject document. The City Council Planning Committee approved these comments on May 10, 1977 under the authority granted the Committee by City Council on December 17, 1976 (CF 72-4317, S-7A and S-7B) . Should you have any questions on the matter either Mr. Bob Fisher (213 485-6621) or Mr. Frank Eberhard (213 485-3744) of the City's staff. REX E. LAYTON, CITY CLERK By (jAO^~ IP £^?^ Deputy AEl:FE:mb AN EQUAL EMPLOYMENT OPPORTUNITY — AFFIRMATIVE ACTION EMPLOYER COMMENTS ON THE REVISED DRAFT ENVIRONMENTAL IMP ACT STATEMENT , ggATE O F CALIFORNIA COASTAL MANAGEMENT PROGRAM Prepared by Los Angeles City Planning Department The Revised Draft Environmental Impact Statement for the State of California Coastal Management Program is deficient in three major areas: 1. Public and local agency participation in the prepara- tion of coastal managerrent programs is inadequate; 2. The Coastal Commission misinterpretation and negation of significant parts of the Coastal Act is not described; and 3. Estimates, of costs relating to the implementation of the California Coastal Act of 1976 are signifi- cantly understated. Adequacy of Participation in the Preparation of Coastal Management Programs The Federal Coastal Conservation Act of 1972 and as later amended declares in part as follows: "The Congress finds and declares that it is the national policy... (d) to encourage the participation of the public, of Federal , State, and local governments and of regional agencies in development of Coastal Zone management programs." (Section 1452, Coastal Zone Management Act of 1972) The California Coastal Act of 1976, among its many provisions, provides for the issuance of "interpretative guidelines", "common methodologies" and "procedures" of various types. These documents have been prepared by the Coastal Commission as follows: Interpretative Guidelines Land use regulations to be used in the issuance of permits. Reflect practices of Coastal Commission in the issuance of permits under Proposition 20. Adm inistrative Regulations - Local Coastal Program ReguT' ?52*J Coastal Program Man'uaX' - ~ Sets forth Coastal Commission practices for issuance of coastal development permits, appeals relating to permits, urban and categorical exclu- sions, local government assumption of permit authority requirements, etc. Establishes common methodology for preparing Local Coastal Programs, general content of Local Coastal Programs, the processing of Local Coastal Programs, funding ancl work program requirements for Local Coastal Programs. Elaborates on Local Coastal Program Regulations. Contains listing of studies and areas to be dealt with in Local Coastal Programs. In short, these regulations cover almost every aspect of the California Coastal Act of 1976. Since the documents expand upon, explain, define, and "manage" California's Coastal Act they have virtually become the act. The regulations were all published by the coastal Commission in draft form and circulated to the public. Public hearings were held and the regulations adopted, first in emergency form and then in final form (as of this writing several of these regulations have not been finally adopted but will be in the next few weeks) . During the period that the regulations were circulated and public hearings held, little or no substantive changes were made. The draft regulations, by virtue of their elaborate procedures and extensive requirements for substantiating or supportive data, appear to have rendered inoperative the provisions of the Act relating to the local government assuming coastal development permit authority and seeking urban exclusions. As of this date, no local government has found it advantageous to exercise these options. Typically, regulations, and particularly substantive revisions of regulations, are sent out a wee^c before they are adoptsd. An example of this situation occurred when the statewide interpreta= tive guidelines were adopted on May 3, 19 77. One of these guidelines was extensively rewritten but no one saw this revision until the day it was adopted. -3 At one public hearing relating to the crucial administravxve regulations the only local government representative to speak was the one from Los Angeles City. Other public agencies had not been notified in time to prepare presentations for that hearing. Representatives of the Sierra Club who have been extremely supportive of the Coastal Commission and much of the Commission's activities publicly criticized the Commission for the lack of notice at this hearing. In short this virtual rewriting of the Act through the various guidelines and regulations had little widespread participation of the public. In fact few have realized what was happening Coastal Commission Misinterpretation of the California Coastal Jjjjb* of 137T — *—— — " ™"~~ — — — Proposition 20 mandated the preparation of a Coastal Plan by the Coastal Commission which was subsequently submitted to the Legislature. The Legislature after a great deal of deliberation and controversy did not adopt that plan. Rather the Legislature adopted a broad set of policies relating to the coast and established a Coastal Commission to coordinate the development of Local Oo&Bfea! Programs by local governments. The basic thrust of the legislation was to return as much control of development and planning for coastal preservation and use as possible to local government . A number of devices were placed into the Act in order to return control of development to local governments. These included provisions for excluding urban areas from the necessity of issuing coastal development permits and provi- sions enabling local governments to issue coastal development permits. To date the elaborate procedures set up by the Coastal Commission and the very restrictive terms and condi- tions which will undoubtedly be attached to each of the above, should local governments choose to exercise their perogative under the Act, have precluded any exercise of these provisions by any local jurisdiction. Further, the Coastal Commission has issue*! what amounts to soning regulations for each neighborhood for the entire length of the California Coast. These Statewide, site-specific interpretive guidelines are derived from conditions placed on individual coastal development permits from the Proposition 20 Commissions. The Coastal Plan submitted to the Legislature (was rejected by that body because of the very nature of these conditions. Yet by a misinterpretation of the Coastal Act L calling for "guidelines", the Coastal Commission has re instituted I that which was rejected by the State Legislature. | -4- Another example of this manipulation of tn& Act has been the Coastal Commission staff proposal to do away with the sensitive coastal resource provisions of the Act. The staff in their presentation felt there was no need for this particular portion of the law in that adequate controls already existed. Actually, good reason for the provisions did exist. Had the local governments been handed back most of the controls of develop- ment as originally contemplated by the Act, certain especially sensitive areas would have required special protection. Because the Act is not being carried out as intended, these provisions are obviously not needed. The misinterpretation of the Act by the Coastal Commission is having serious, perhaps crippling, repercussions. The elaborate provisions of regulations and the MMMpio return controls to local governments have iated a serious situation. At this time a large majority of the Commission time has been spent with the handling of appeals. The Commission has generally held lengthy, into-the- night sessions dealing with individual issues. They have had little time to deal with broader issues. One is at a loss to understand how they will be able to fully cope with all that will confront them in the future. A partial list of what they must deal with in the future is: Categorical exclusions for most jurisdictions Urban exclusion applications Applications to assume permit authority Applications for grants on preparing work programs on Local Coastal Programs Grants for local governments to prepare Local Coastal Programs Reviews of Local Government Coastal Issue Identifications Preliminary Reviews of local Coastal Programs Review of Local Coastal Programs (often *n separate segments for different jurisdictions) Permit Appeals Port Master Plans ret, at this point, their staff is overworked, the Commission Agenda is full and the work has barely begun. Had the Act been Interpreted properly a large amount of work could have been shifted to local governments. Adequate sa tegua ids exist in the legislation which could be utilized by the , Commission if the local governments did not properly exercise thei] controls. The result of not shifting there powers as quickly as possibly may well be a paralysis of the entire Coastal Act* The Environmental Impact Statement, includes estimates of costs to prepare Local Coastal Programs- It is estimated that the minimum cost will be from $10,000 to $20,000 and the upper limit to any jurisdiction will be $100,000. Since the money expended by the State will be, in most instances, subject to what monies the State is wit Mag to pay, the above costs may be accurate. However, the City of Los Angeles, in preliminary pricing of what the cost would bo to prepare a completely new Local Coastal Program consistent with the Local Coastal Program Regulations and the Local Coastal Program Manual, estimated a cost of $5 70 ,.€00. Possibly this cost is overstated. But, it would appear that the cost stated in the Environmental Impact Statement is grossly understated «, Further, there are many other costs. A number of additional costs to local government will also result . When local governments assume the permit authority, either after oertifi~ cation of the Local Coastal Program or earlier if the local government chooses to exercise its option to do so under the Act, considerable expenditures will be necessary to review and process permits. In the City of Los Angeles ten or twelve additional persons may be required to handle these matters. If an average of $20,000 per year salary tor each person resulted, the costs to the City could exceed $240,000 per year. The City of Los Angeles has been particularly concerned with the nature of the Interpretative Guidelines as stated previously. One of these concerns is related to coats. The Interpretative ~\ Guidelines have been of such a nature as to be quite specific as to controls for each neighborhood alon% the coast. These guidelines are to guide the Commission in dealing with permits and appeals of the permits. It is clear that these guidelines will be the basis for teems and conditions applying to exclusions and for appealing permits issued by local governments. It is clear also that the guidelines reflect staff mid Commission thought with respect to the content of each government* 8 Local Coastal Program. In Sheet, the Coastal Commission already has its Coastal Plan, the guidelines. The monies spent to finance the preparation of the various Local Coastal Programs will only serve to. add an air of. legit imacv for what has already bean determined by ihe F reposition 20 Coastal / 1 Commission,, The several millions a: dollars which are to be I spent in financing the Local Coastal Program may well be f money which is spent needlessly . ■ -»©■ Conclusion The above criticisms of the manner in which the California Coastal Act of 1976 is being administered are hot adequately treated in the Environmental Impact Statement. The City of Los Angeles seriously questions whether the California Coastal Management Program is being carried out in a manner which was intended by the California Legislature, The City of Los Angeles is concerned that misinterpretations of the Act will cripple if not defeat the purposes of the Act. The City is concerned that the roles of the public an d local governments xn preparing Lo#s& CUdbLdl Programs will be dhe ot form rather than substance. Experience to date in the development of vital regulations and guidelines have borne this out. Further, the City is concerned that the overly restrictive y^ procedural and policy interpretations of the Act will result ^ in such workloads for the Coastal Cominission and its staff that the law will not achieve its originally intended purposes. Finally, the City is concerned that adequate attention has not been given to costs. Strong concern exists that significant \s? amounts of money will be spent to verify or legitimize planning decisions already made by the Coastal Commission. In view of the above concerns, serious revaluations of the funding of this effort should be given. Before funding is approved for this program, it should be substantially over- hauled. The City of Los Angeles believes this to be possible without new legislation. A thorough revision of the various regulations and guidelines promulgated by the Commission could accomplish this goal. If this solution is found not to be feasible] the Coastal Act should be amended or a new law should be enacted, designed to avoid the pitfalls of the present Act. CSH:FE:vk County of San Mateo Planning Department COUNTY GOVERNMENT CENTER REDWOOD CITY, CALIFORNIA 94063 (415) 364-5600, EXTENSION 4161 BOARD OF SUPERVISORS EDWARD J. BACCIOCCO, JR. JAMES V. FITZGERALD FRED L. LYON WILLIAM H. ROYER JOHN M. WARD Donald A. Woolfe, AIP PLANNING DIRECTOR William F. Powers, AIP ASSISTANT PLANNING DIRECTOR May 24, 1977 Mr. Grant Dehart Office of Coastal Zone Managment 3300 Whitehaven Street, N.W. Washington, D.C. 20235 Dear Mr. Dehart: We are in receipt of the report, State of California Coastal Management Program and Revised Draft Environmental Impact Statement , prepared by the Office of Coastal Zone Management, National Oceanic and Atmospheric Administration, Department of Commerce on the California Coastal Management Program. Since the County of San Mateo is a key county in the California Coastal Zone and is an active participant in the Coastal Zone Management Program, we have reviewed the document and have several comments to offer. The report is a complete and thorough statement of the proposed California Coastal Management Program, and of the environmental impacts which can be expected from its implementation. In fact, the report is so extensive and lengthy that several other County departments who were asked for comments could not spare the staff time and resources to accomplish the task. Indeed our own staff commitments precluded us from conducting an extensive review. One general comment relates to the report format and organization. A "summary" section put in the front would be helpful in speeding comprehension and enabling the reader to decide quickly what material is of interest and turn to it. This would be of particular assistance for the impact section (Part III). A possible alternative would have been to issue a capsule version of the whole report, and to have made it available as a companion document to the EIS. Mr. Grant Dehart -2- May 24, 1977 We basically concur with the statement on page 120: "It is believed that the implementation of the California Coastal Management Program should have a positive impact on the natural environment which should be discernable over the next five to ten years and longer." Obviously, however, these impacts will be interspersed with some adverse impacts over a period of time, as issues and opportunities change. Decisions as to what these impacts are and how they will be mitigated will have to be made at the local level when programs, policies, and projects are promulgated. We hope these comments will be helpful in finishing the report. Yours truly, Roman Gankin Senior Environmental Planner RG:MH:dv cc: Calif. Coastal Commission 1540 Market Street San Francisco, CA 94104 SAN DIEGO REGION'S COUNCIL OF GOVERNMENTS June 6, 1977 cpm COMPREHENSIVE PLANNING ORGANIZATION Suite 524 Security Pacific Plaza 1200 Third Avenue San Diego, California 92101 (714)233-5211 Mr. Grant Dehart Office of Coastal Zone Management U.S. Department of Commerce 3300 Whitehaven St. N.W. Washington, D.C. 20235 Subject: California Coastal Zone Management Program DRAFT EIS Dear Mr. Dehart: On June 3, 1977, the Executive Committee reviewed the subject Draft EIS in accordance with the National Environmental Protection Act. Based on CPO investigation of the proposed management program, the Executive Committee has determined that there are no unresolved regional issues regarding this Draft EIS and that further review and comment by CPO is unnecessary. If you have any further questions, please do not hesitate to call Mr. Steve Sachs. Sincer ely, RICHARD J. HUFF ( ) > Secretary ^ RJH/SS/st NI-215 cc's:'' Bill Travis California Coastal Commission Dan Gorfain S.D, Regional Coastal Commission MEMBER AGENCIES: Cities of Carlsbad, Chula Vista. Coronado, Del Mar, El Cajon, Escondldo, Imperial Beach, La Mesa, National City, Oceanslde, San Diego, San Marcos, Vista, and County ot San Diego / EX-OFFICIO MEMBER: California Department of Transportation / HONORARY MEMBER: Ti|uana, B, CFA. AREAWIDE CLEARINGHOUSE REVIEW Objectives The Areawide Clearinghouse Review process in San Diego is a regionwide intergovernmental cooperation mechanism designed to improve federal and state activities in a manner consistent with local government needs. It provides a quick and efficient service to federal, state and local governments by maximizing direct inter- governmental contacts before major federal and state planning, funding, development and regulatory decisions are completed. The process works best at the outset of federal and state planning and decision-making affecting the San Diego Region. Often its most useful product is the strengthening of local applica- tions for federal funds prior to the point when they are sub- mitted to the federal government, thereby improving the chances for funding approval. The process also has the capability of re- vealing untimely, inconsistent, or duplicating federal and state activities and is designed in a positive, cooperative framework that supports the needs of local governments. Process 1 . CPO staff receives notice of intent from applicant 2. CPO staff requests comments from appro- priate organizations k 3. CPO staff prepares ' report for CPO Executive Committee 4. CPO Executive Committee ACTION: f r No f Review complete; results forwarded A further review necessary; r ^ A Review by CPU Board of Directors required 8. CPO Board of Directors A 7. CPO staff prepares report for CPO Board A 6. CPO staff requests further comments, if necessary; holds con- 5. CPO requests further information from ACTION ^ of Directo s ^ ferences and completes coordination J app icant, if necessary Criteria 1. The extent to which the project is consistent with or contri- butes to the fulfillment of comprehensive planning for the re- gion, or any of its localities. 2. The extent to which the proposed project: (a) Duplicates, runs counter to, or needs to be coordinated with other projects or activities being carried out in or affecting the area; or (b) Might be revised to increase its effectiveness or efficiency. 3. The extent to which the project contributes to the achieve- ment of State, areawide, and local objectives and priorities relating to natural and human resources and economic and community development including: (a) Appropriate land uses for housing, commercial, indus- trial, governmental, institutional, agricultural, and other purposes. (b) Wise development and conservation of natural resources, including land, air, water, mineral, wildlife, vegetative and others, (c) Balanced transportation systems, including highway, air, water, pedestrian, mass transit, jnd other modes for the movement of people and goods; (d) Adequate outdoor recreation and open space; (e) Protection of areas of unique natural beauty, historical and scientific interest; (f) Properly planned community facilities, including utilities for the supply of power, water, and communications, for the safe disposal of wastes, and for other purposes; and (g) Concern for high standards of design. 4. The extent to which the project significantly affects the en- vironment including the consideration of: (a) the environmental impact of the proposed project; Any adverse environmental effects which cannot be avoided should the proposed project be implemented; Mitigation measures proposed to minimize the impact; Alternatives to the proposed project; The relationship between local short term uses of man's environment and the maintenance and enhancement of long term productivity; Any irreversible and irretrievable commitments of re- sources which would be involved in tne proposed project or action, should it be implemented; and The growth, inducing impact o f the project. (b) (c) (d) (e) (f) (g) 5. The extent to which the project contributes to more balanced patterns of settlement and delivery of services to ail sectors of the area population; including minority groups. 6. Effects on energy resource supply and demand. 7. The extent to which people or businesses will be displaced and the availability of relocation resources. 8. In the case of a project located in the coastal zone, the rela tionship of the project to the approved State program for the management of the coastal zone and its consistency therewith. 9. In the case of a project for which assistance is being sought by a special purpose unit of government whether the unit of general local government having jurisdiction over the area in which the project is to be located has applied, or plans to apply for assistance for the same or a similar type project. PART FOUR COMMENTS FROM THE ENERGY INDUSTRY American Petroleum Institute 2101 L Street Northwest Washington, D.C. 20037 202-457-7330 P. N. Gammelgard Vice President 9 May 31, 1977 Mr . Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street, N.W. Washington, D. C. 20235 RE : Draft Environmental Impact Statement—California Coastal Management Program Dear Sir: By this letter the American Petroleum Institute endorses the testimony presented on the above subject by the Western Oil and Gas Association during the public hearings which were conducted in California on May 19 and 20, 1977. The Institute fully subscribes to the views and comments expressed in that testimony. Moreover, as a national trade association repre- senting all segments of the petroleum industry, we feel it is appropriate that we submit additional and supplemental views which we trust will receive careful study and consideration by the National Oceanic and Atmospheric Administration prior to making its decision on whether the California Program is to receive Federal approval. The purpose of our supplemental statement is to ensure that the record fully reflects the consequences which will flow from approval of the California Program — specifically the effect upon the production of much-needed petroleum resources on the Outer Continental Shelf. In brief, our position is that Federal approval of the California Program in its present state would be contrary to the clearly expressed intent of the Congress because such approval would grant to California a full partnership status in vital decisions relating to An equal opportunity employer Mr. Grant Dehart May 31, 1977 Page 2 OCS petroleum development even though that state's Program does not meet the "national interest" requirements of Section 306 of the Coastal Zone Management Act. However, it is not our intention herein to criticize the adequacy of the California Coastal Act as a vehicle of state law. This position is set forth in further detail in the enclosed statement. Respectfully submitted, 1 1- ^-JL^- ' Enclosure STATEMENT BY THE AMERICAN PETROLEUM INSTITUTE TO OFFICE OF COASTAL ZONE MANAGEMENT, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION Regarding: The State of California Coastal Management Program and Revised Draft Environmental Impact Statement. May 31, 1977 INTRODUCTION The State of California Coastal Management Program (CCMP) should not be granted Federal approval at this time because it clearly fails to meet the "national interest" re- quirements of Section 306 of the Coastal Zone Management Act (CZMA) . If it should be approved as it now stands, the pro- visions of Section 307 (Federal Consistency) of the CZMA would require that Federal activities and activities permitted by Federal licenses and permits be consistent with a Program which cannot be demonstrated to be in accordance with, or to bear out, the national policy of increasing domestic petroleum supplies. This judgment is substantiated by a close reading of the Program, the California Coastal Act and NOAA's Draft Environmental Impact Statement (DEIS) . CALIFORNIA'S COASTAL MANAGEMENT PROGRAM AND THE NATIONAL INTEREST In enacting the CZM Act, especially the 1976 amend- ments thereto, the Congress declared that no state program should be given Federal sanction unless and until it expresses and deals with the national interest in the siting of coastal energy facilities — which, by NOAA definition, include facilities required for the extraction of petroleum resources on the Outer Continental Shelf. - 2 - The California Program, far from facing this issue squarely, instead assumes a status-quo stance and offers a vague promise to consider the national interest at some future date, but only if that state has been convinced that California should play a larger role than it is now playing in supplying the Nation's energy needs. The DEIS, erroneously in our opinion, apparently finds this posture to be sufficient unto the law. California's "Status Quo" Posture Clear evidence of the Program's "California first" attitude is found in this excerpt from Chapter 11: "The Coastal Act's energy policies, especially important because of the Department of the Interior's leasing of Outer Continental Shelf Areas for petrol- eum exploration and extraction, take into account California's role in national energy supply." (CCMP, Pg. 70) We submit that this statement is unsubstantiated by a detailed analysis of the Coastal Act. A further quotation from Chapter 11 illuminates the Program's "status quo" posture: "The energy policies (of the Coastal Act) are based on a willingness to respond with a broader state role in meeting the nation's energy requirements if such a need is clearly identified and if California's environmental, economic, and legal interests are properly planned for and protected." (CCMP, pg. 70) Clearly, this language asserts that California's interests are paramount to the national interest — which is contrary to what is required by the language of Section 306(c) (8) - 3 - which says that prior to approving a program the Secretary shall find that: "The management program provides for adequate consideration of the national interest involved in planning for, and in the siting of facilities (in- cluding energy facilities in, or which significantly affect, such state's coastal zone) which are neces- sary to meet requirements which are other than local in nature." The legislative history of the CZM Act is clear as to what Conyress wants in state management programs: "The legislative history of the Act clearly dis- closes that energy facilities were to be appropriately dealt with in State coastal zone management plans." (Senate Report 94-277). The regulations implementing the Act's policy guide- lines for Federal approval of State programs are equally em- phatic: "This policy requirement is intended to assure that national concerns over facility siting are ex- pressed and dealt with in the development and imple- mentat ion of state (emphasis added) coastal zone management programs." (15 CFR 923.15). Neither the California Program nor the Coastal Act "assure that national concerns . . . are expressed and dealt with." What they say, in effect, is that California will act in the national interest only if that happens to be identical with California's interest. In a conflict between state and national interests, the latter may be ignored. Does the Program Meet The "National Interest" Test? The process by which the Program envisions future consideration of the national interest is vague and curious. To quote further from the Program: " . . .if occasions should arise when certain Federal activities would conflict with Coastal Act policies, the representatives of the Federal and State agencies will have to consult and cooperate to resolve the conflicts consistent with national objectives." (CCMP, Pg. 70) NOAA's acceptance of this vague formula for possible consideration of the national interest sometime in the future ignores, as do the Program and the DEIS, the Congressional re- quirement that national interests be addressed now ; i.e., be- fore Federal approval is granted. Says NOAA in the DEIS: "At this time it can be stated that the organi- zation, authorities and other aspects of the . . . Program allow for a rational decision-making process for such facilities. The implementation of the program will of course occur over many years. Disagreements will continue and possibly even litigation over specific issues. As a pattern of decisions with respect to these facilities begins to emerge from implementation of the program, OCZM will evaluate the effectiveness of the policies and objectives of the state in meeting regional and national needs." (DEIS, Pg. 128) In other words, NOAA is saying that somewhere down the road OCZM will decide whether the Program is in accord with the "national interest" provision. Nowhere in the DEIS is the "national interest" issue clearly discussed or analyzed as to whether the Program and the Coastal Act are, in fact, in accord with Section 306(c)(8) Thus, the DEIS is deficient in not providixig a thorough and specific discussion of how the Program meets the "national interest" test. Yet, the Congress viewed this provision, and what it intended to flow from it, as the keystone of the CZM Act. The Program's deficiency with respect to the national interest in energy facilities suggests that its authors were unfamilar with the 1976 amendments to the CZM Act and their purposes. In discussing the national interest provision in Section 306, Chapter 11 of the Program quotes only the language of the Act prior to the 1976 amendments — i.e., it does not note the fact that these amendments inserted into that Section the phrase " (including energy facilities in, or which significantly affect, such state's coastal zone)." The Conference Report which provided the final version of the 1976 amendments speaks to this point: "The 1972 Act was enacted before the advent of the current and continuing energy crisis; i.e., be- fore attainment of a greater degree of energy self- sufficiency became a recognized national objective of the highest importance and priority. The confer- ence substitute follows both the Senate bill and the House amendment in amending the 1972 Act to encourage new or expanded oil and natural gas production in an orderly manner from the Nation ' s Outer Continental Shelf (OCS) by providing for financial assistance to meet state and local needs resulting from specified new or expanded energy activity in or affecting the coastal zone." (emphasis added) FEDERAL APPROVAL WOULD VITIATE THE CZM ACT - We submit that Federal approval of the California Program, which on its face does nothing to "encourage new or expanded oil and natural gas production, from the OCS in an orderly manner," would do more than ignore the stated will and intent of the Congress. - 6 - Federal approval would not only carry with it a grant of Federal monies for administration of a program which does not square with the national interest; more im- portantly, it would grant to California an authoritative role (which could be very nearly tantamount to veto authority) in Federal decisions governing the use and disposition of resources which are, in some cases, the property of the citizens of all of the states. Some of these decisions will: • Determine where, when, and to what extent Federally controlled lands beneath the OCS are to be leased for the develop- ment of oil and natural gas, sulfur and — in the future — other valuable mineral resources. • Determine the conditions, methods and other particu- lars by which exploration for these resources shall take place — both before and after leases have been issued. • Determine the conditions, methods and other particu- lars under which these resources may be developed, produced and delivered to the consumer. Section 307 of the CZM Act requires that Federal activities and activities under Federal licenses and permits be consistent with approved state programs. Thus, if the stamp of Federal approval is placed on the California Program, the State of California will become at least an equal partner with the Federal Government in OCS development decisions even though the State Program fails to meet national interest requirements. The quid pro quo which the Congress had in mind in enacting the CZM Act and the 1976 amendments is clear: In return for establishing coastal management: programs which face up to and deal with the nation's interest in developing addi- tional OCS petroleum supplies and in the siting of coastal energy facilities, the states are to receive: 1. Federal dollars — which come from the taxpayers of every state — to finance their programs and to deal with the impacts of energy facilities. 2. A strong partnership role in the disposition of national resources on the Outer Continental Shelf. - STATE PROGRAMS MUST FACE THE ISSUE - There is irrefutable evidence that the Congress did not intend that Federal funds and a partnership role be granted to any state which offers a program which does not squarely meet the "national interest" test. Yet, that is exactly what NOAA proposes to do. Although it has not considered the evidence which may be delivered or submitted by the May 31 deadline for comments on the DEIS, the Office of Coastal Zone Management has already determined that "the objectives and policies of the California Program are in harmony with the objectives and policies of the national legislation." (See "Note to Readers" — o — in the document entitled "State of California Coastal Manage- ment Program and Revised Draft Environmental Impact Statement.") Having demonstrated we believe, that the Program and •the DEIS are deficient as to the national interest issue, we turn now to the Coastal Act — which is, of course, the central ingredient of the Program. It is not our intention here to criticize the adequacy of the Coastal Act as a vehicle of state law; our concern is with the fact that Federal approval of CCMP will, in effect, extend the Act's provisions and policies to the Federally-controlled submerged lands of the OCS. Thus, the question at issue is how do the Act and the Program serve the national interest? Among other things, Article 7 of the Act generally confines new or expanded energy facilities to existing sites, effectively restricts the installation of new tanker facilities, provides for only one liquefied natural gas terminal, and places restrictions on oil and gas development. The Act does not, however, address the question of what happens when these restrictions conflict with the national policy of increasing domestic energy supplies. The only guidance as to how this problem might be met is found on page 70 in the DEIS in an unsupported assertion that states: "Where the Coastal Act would conflict with an over- riding national need under circumstances unforeseen when the Act was being prepared, it may be necessary to over- ride the Coastal Act policies in the national interest." - 9 - What mechanism is provided for in the Coastal Act by which the Act's policies could be overridden in the national interest? Under the provisions of the Act, the Coastal Com- mission has been given strong siting and design regulatory auth- ority over significant energy facility development within its jurisdiction. However, the Commission is only one of several state regulatory agencies that would have to make a "national interest" determination during the permit application process for a major energy facility proposal. Specifically, the Act does not "increase, decrease, duplicate, or supersede the authority of any existing State agency." So, in effect, the State conflict resolution mechanism for matters regarding the national interest in the siting of energy facilities requires that cognizant state agencies have an equal role in making a "national interest" determination. We submit that this mechanism is inadequate in that it is not possible for a concurrent "national interest" determination to occur when State policy dictates that only State interests will be provided for, and when the State is only willing to respond with a broader State role in meeting the Nation's energy requirements if such a need is clearly identified. APPROVAL COULD CREATE A DE FACTO OCS MORATORIUM The petroleum industry has supported local control over land-use. However, an aspect of the California Program which may render it ineligible for Federal approval, is the pro- vision which delegates "federal consistency" review under CZM Section 307 to the local units of government. The CCMP requires each such local government to implement a coastal management program, but none would be required to be in place before July 1, 1980. This raises the problem that pending approval of the local management programs , how would an applicant for a Federal license or permit be able to substantiate (with his Section 307 certification) that an activity would be consistent? On a broader basis, how could the Secretary of the Interior determine at the Federal level that a proposed lease sale would be "consistent" when there is nothing for it to be "consistent" with until all local programs have been certified. Even when the local programs are in place, the problems remain — indeed, they multiply. An applicant to drill a well — or the Secretary's desire to hold a lease sale — 20 miles off the coast would be- subject to a consistency approval by several local governments with management programs. It is not inconceivable that a single city or county government could thus veto an action which may be clearly in the national interest. Such a local veto could - J.JL - eventually be overridden by the Secretary of Commerce; but the pending regulations implementing Section 307 would severely limit his use of this authority, in our opinion. It goes without saying, then, that under the Program which NOAA now proposes to approve there could well be an ex- tended moratorium in such Federal activities as lease sales and petroleum exploration and development on the California 0€S. Thus, we would find the California Program operating in a manner precisely contrary to what the Congress sought to emphasize in enacting the 1976 CZM Amendments. EJgON COMPANY U.S.A. 1800 AVENUE OF THE STARS LOS ANGELES. CALIFORNIA 90067 (213) 552-5771 PRODUCTION DEPARTMENT .-,, WESTERN DIVISION J i 1 . *-^~^ J ~ JiJL'D Mil _ri: ■■> DIVISION PRODUCTION MANAGER May 26, 1977 Mr. Robert Knecht Office of Coastal Management 3300 Whitehaven Street N.W. Washington, D. C. 20235 Dear Mr. Knecht: In accordance with the notice in the Federal Register on April 12, 1977, Exxon Company, U.S.A. is submitting its comments on the proposed Federal action to approve the California Coastal Management Program as covered by the revised DEIS (undated) con- sidered at Department of Commerce hearings in Los Angeles on May 19, 1977 and San Francisco on May 20, 1977. Exxon believes the Department of Commerce cannot approve California's Coastal Zone Management Program as submitted without contravening the positions and intent of the Coastal Zone Management Act (CZMA) . The reasons for this belief are set forth in the attachment, particularly in Part I. Basically, the California Management Program does not include adequate consideration of national interest in energy planning and siting, is procedurally inoperable, and is insufficiently defined to allow local program development and evaluation. We believe approval of the program and the resulting activation of the consistency provisions of CZMA, Section 307, would cause a virtual halt or at least protracted delays of any productive petroleum activity on the OCS. It is Exxon's position that the revised draft EIS prepared by OCZM is inadequate as detailed in Part II of the attached. It does not fulfill the Department of Commerce regulation for preparation of an EIS. None of the impacts described were quantified and many impacts were completely ignored. Commerce approval of a Management Program of this type would set a precedent and invite other states to establish programs which only address local concerns. Our nation's energy problem is so large as to make such actions intolerable. We urge that approval be denied. Very truly yours, JM: vm Attachment '■/'SIGN 0<= EXXON CORPORATION -c : SOa^TL&Is^J COMMENTS ON THE CALIFORNIA COASTAL MANAGEMENT PROGRAM AND REVISED DRAFT ENVIRONMENTAL IMPACT STATEMENT BY EXXON COMPANY, U.S.A. A DIVISION OF EXXON CORPORATION May 24, 1977 We acknowledge and support the concept of intelligent management and conservation of valuable natural resources. Exxon recognizes the value of the coastal zone and the need for wise management now in order to prolong and increase the benefit of the coastal zone to both the states and nation. But the large number and wide diversity of coastal zone activities calls for the best available management skill to achieve the equitable balance necessary to assure proper utilization of the resource for local and national benefit while preventing long- term, adverse effects. The Coastal Zone Management Act (CZMA) recognized the need for close cooperation between the states and federal government, but at the same time saw the need for protecting interests that are more than local in nature. "In the spirit of equitable balance between State and national interests, the act also contains a 'national interest' provision. That part of the law requires States, in developing coastal zone management programs, to give 'adequate consideration to the national interest involved in the siting of (energy) facilities necessary to meet requirements which are other than local in nature." Senate Report No. 94-277, page 2728 Exxon's positions set forth in this document are not intended in any way to diminish the role of the state to represent the interest of the people in California. Indeed, Exxon will deal only with issues of non-compliance with federal law and regulations, and the imbalances that exist in the California Coastal Management Program which would prevent the protection of the national interest. In summary, it is Exxon's position: I (a) That the California Coastal Act passed in 1976, which became effective in 1977 (CCA 1977), does not meet the requirements of the federal Coastal Zone Management Act (CZMA) as amended in 1976. ■v. (b) That the California Coastal Management Program (CMP 1977) does not meet the requirements of CZMA nor the applicable regula- tions of the Department of Commerce (DOC). Instead, the CMP 1977 causes great concern by making it virtually impossible to conduct energy related operations on the Outer Continental Shelf Lands (OCS) or anywhere near the coastal lands even when the national interest is at stake. II That the Revised Draft Environmental Impact Statement (RDEIS) does not meet the preparation requirements of the National Environmental Protection Act, nor the regulations adopted by the Department of Commerce, and III That the Department of Commerce must by federal law and their own regulations refrain from approval of the California Coastal Program until all federal deficiencies have been corrected in the CCA 1977, the California CMP 1977 as submitted for approval, and the RDEIS. Dangerous areas of imbalance and the lack of concern for the national interest exist in the CMP 1977 and the CCA 1977. Some of these problems will be detailed under Parts I and II which follow. PART I THE CALIFORNIA COASTAL ACT 1977 and COASTAL MANAGEMENT PROGRAM 1977 FAIL TO MEET REQUIREMENTS OF COASTAL ZONE MANAGEMENT ACT - 2 - 1 . Neither the CCA 1977 nor the CMP 1977 con tains e xplicit provisions for considering the national interest in energy plan ning or siting, which is a require - ment before approval . Before approving a state's management program, the Secretary of Commerce must find the program: "... .provides adequate consideration of the national interest involved in planning for, and in the siting of, facilities (including energy facilities in, or which significantly affect, such state's coastal zone), which are necessary to meet require- ments which are other than local in nature." CZMA, Section 306(c)(8), emphasis added. In order to test a state's management program we must, first define just what constitutes the program. Second, we must examine the program to see exactly how it considers the national interest in order to judge its adequacy. 2. Just what is California's Coastal Management Program in 1977? We refer to the document described as a "Revised Draft Environmental Impact State- ment" in the 42 FR 70, page 19,169 and entitled, State of California Coastal Manage- ment Program and Revised Draft Environmental Impact Statement , U. S. Department of Commerce, National Oceanic and Atmospheric Administration, Office of Coastal Zone Management (undated), which is referred to in this memorandum as the RDEIS. Through- out this RDEIS, references are made to the "management program." However, nowhere in the summary, introduction, or body of this RDEIS is any attempt made to tell the reader what the program is. Not until we closely examine Appendix I do we find the needed description. Appendix 1 is the California Coastal Act passed in 1976, which became effective on January 1, 1977. It is set forth as Division 20» California Resources Code, which will be referred to in this memorandum as CCA 1977 to distinguish it from the earlier law. Here in Appendix 1 we find the answer to the program description: "This division shall constitute California's coastal zone management program within the coastal zone for purposes of the Federal Coastal Zone Management Act of 1972 (16 U.S.C. 1451, et seq.) and any "other federal act..." CCA 1977, Section 3008, emphasis added. 3 - So, in examining the California Program as it concerns federal approval under CZMA Section 306, it must be concluded that only the CCA 1977 and the guidelines, directives, and regulations which which come from that law constitutes the California Coastal Management Program. Further, we must also conclude California's management program does not include: (1) the descriptive material in Parts I through VIII of the RDEIS: (2) the California Coas tal Plan, California Coastal Commissions, December 1975, hereinafter called ^CP 1975 ^ which was drafted and published prior to the Act and is only acknowledged in the findings of the CCA 1977; or (3) anything not included by or issued pursuant to provisions of the CCA 1977. 3 . Now that we know what California's managemen t program is and what it is not , let us examine the progra m to see just how it considers the national interest in energy planning and siting . We submit that consideration is nonexistent, and in the paragraphs to follow, detail is submitted as to why this conclusion roust be reached. Section 30001.2 of the CCA 1977 addressed the importance of certain energy facilities and how they are coastal-dependent: "The legislature further finds and declares that, notwithstanding the fact electrical generating facilities, refineries, and coastal- dependent developments, including ports and commercial fishing facilities, offshore petroleum and gas development, and liquefied natural gas facilities may have significant adverse effects on coastal resources or coastal access, it may be necessary to locate such developments in the coastal zone in order to ensure that inland as well as coastal resources a re preserved and that orderly economic development proceeds within the state . " RDEIS, page 56, emphasis added. Although the "findings" in this section of the CCA 1977 clearly acknowledge the possible necessity for coastal siting of some energy facilities, they are in no way tied to the needs outside California . Preservation of "inland as well as coastal resources" as used in this section cannot logically be constructed as a provision to adequately consider national interests. Likewise, the geographical reference to -A- "orderly economic development . . . within the state " does not consider the national interest. The absence of any national interest element in Section 30001.2 is supported by the complete absence of any consideration beyond state boundaries in the basic goals of the CCA 1977 stated in Section 30001.5: "Assure orderly, balanced utilization and conservation of coastal resources, taking into account the social and economic need s of the people of the state . " CCA 1977, Section 30001.5(b), emphasis added. Considering this clearly stated position on state interests and the total silence on national interests in energy planning and siting, there should be little reason to search further for national interest considerations. But we shall. Pages 3 and 4 of the RDEIS introduction , list "OCZM Requirements for Program Approval (Section 306) to California's Coastal Management Program Submission." Chapter 9 of the RDEIS is shown as a discussion of "National Interest in the Siting of Facilities" and of "Energy Facility Planning." Surely, if there is a sound basis for OCZM to recommend approval of California's management program CMP 1977, insofar as national interests are concerned, it should be stated in Chapter 9 of the RDEIS This Chapter begins with a description of the depth to which the CCP 1975 went into the energy issue and then says: "The Coastal Plan said one goal was 'to protect, enchance, and restore the coastal environment while also providing for energy facilities for which a clear public need and a need for siting along the coast can be shown.' A section was devoted to findings and detailed policies covering major energy facilities." RDEIS, page 56, emphasis added. It could be possible to say "public" means people of the nation. But this is not clear and even if it were clear, the plan referenced here is CCP 1975 which is not a part of the CMP 1977 as previously discussed . Indeed, if the CCP 1975 were an integral part of the California Coastal Zone Management Program, then one could say with all certainty that national interests have definitely been ignored. Just one example of that publication vividly illustrates this: -5- "Basic Policy for Offshore Petroleum Development. New Offshore oil and gas development shall be permitted if: o The Federal Government (for Federal Outer Continental Shelf Lands) of the State Energy Commission, State Lands Commission, coastal agency, and other appropriate State agencies (for offshore State lands) have clearly identified development or the offshore petroleum resources as: (1) an integral and high- priority part of a comprehensive, balanced national energy conservation and development program that gives consideration to full-scale energy conservation programs, alternative energy source development, and short and long-term resource availability or (2) a necessary energy source for California and Petroleum A dministration for Defense District V (PAD V, consisting of California, Arizona, Negada, Oregon, Washington, Alaska and Hawaii) , considering energy conservation and alternative energy sources development measures and also considering the anticipated inflow to California and PAD V of oil and other forms of energy from all other sources (e.g. onshore oil production, Alaska North Slope oil and gas production, production in other regions of Alaska and foreign oil and gas imports), and California's pro- jected capacities to refine and store the anticipated inflow of oil from these sources; and o The coastal agency has determined that the possible impacts on coastal marine, air, and onshore resources resulting from offshore petroleum development are acceptable under the policies set forth in the Coastal Plan." CCP 1975, Policy 81, page 123, emphasis added. Unless a national energy policy is clearly tailored to "Policy 81" specifications, the policy would limit California OCS development to serve only the western part of the nation . This is in direct conflict with the spirit of the national interest requirements of Section 306(c)(8). Then Chapter 9 of the RDEIS proceeds to discuss local and national interests in the coastal zone: "The Coastal Commission and regional commissions, whose planning and management role includes the protection of regional, State and national interests in the coastal zone and the coordination and integration of public agency activities in the coast (Section 30004 (b)), was given a strong role in regulating authority over major energy facilities. The Coastal Commission has coastal development permit authority over major energy facilities except for power plants prior to the certification of local coastal programs, and a permit appeal jurisdiction over those facilities after the certification of local coastal programs (Sections 30600, 30601, and 30603)." RDEIS, page 56, emphasis added. -6- This is presumed to convey the idea that the Act mandates adequate consideration of national interests in Section 30004(b), but on examination of Section 30004(b) we find it provides: "To ensure conformity with the provisions of this division, and to provide maximum involvement in federal activities allowable under federal law or regulations or the United States Constitution which affect California's coastal resources, to protect regional, state and national interests in assuring economic vitality of coastal resources necessary for the well-being of the people of the state , and to avoid long-term costs to the public and a diminished quality of life resulting from the misuse of coastal resources, to coordinate and integrate the activities of the many agencies whose activities impact the coastal zone, and to supplement their activities in matters not properly within the jurisdiction of any existing agency, it is necessary to provide for continued state coastal planning and manage- ment through a state coastal commission." CCA 1977, Section 30004(b), emphasis added. The "national interests" as used in this section are protected only insofar it as they are needed to assure benefits necessary for the well-being of the people o f ii the state . Thus, we have a provision here which directly opposes the requirement for approval by the Secretary of Commerce under Section 306(c)(8) of the CZMA. Chapter 11 of the RDEIS is not listed in the Introduction as presenting any arguments that national interests are preserved to comply with Section 306(c)(8) of the CZMA. But several references are specifically made in an attempt to infer provisions in the CMP 1977 which are totally absent. Starting at the top of page 70, the statement reads: "Recognizing its responsibilities to the rest of the Nation, California in its coastal planning has made every effort to consider the national interest in issues affecting the coast. The Coastal Plan's policies recognize national defense and national security as important aspects of national interest, because within the attain- ment of such national objectives, all other goals and objectives can be threatened. The Coastal Act's policies on the protection of agricultural land recognize the importance of California farm production to the rest of the Nation and also acknowledge the world food shortage. The policies calling for recreational and public oriented uses to have a high priority along the coast reflect the increasing popularity of the coast as a tourist destination. The Coastal Act's energy policies, especially important because of the Department of Interior's leasing of Outer Continental Shelf (OCS) areas for petroleum exploration and extraction, take into account California's role in national energy supply. The en e rgy policies -7- are based on a willingness to respond with a broader State role in meeting the Nation's energy requirements if such a need is clearly identified and if California's environmental economic, and legal interests are properly planned for and protected. Because needs — National, State, and local — may change in the future, if occasions should arise when certain Federal activities would conflict with Coastal Act policies, the representatives of the Federal and State agencies concerned will have to consult and cooperate -to resolve the conflicts consistent with national objectives." RDEIS, page 70, emphasis added. There are many good intentions described in these words, but none of the provisions are included in the California law, CCA 1977. Once again, the CCP 1975 is used as if it were part of the Coastal Management Program of 1977, but it is not. And if it were, there could be no reasonable doubt that national interests insofar as energy planning and siting are concerned, are all but ignored. So in looking at the CCA 1977, which is the program, we find no provisions which even intend to provide adequate consideration of national interests in planning and siting energy facilities. This finding is validated by the complete absence of any explicit argument by OCZM in either Chapter 9 or Chapter 11 that the California program has given adequate consideration to the protection of these interests. 4. Even if by some obtuse construction of the California Coastal Act (CCA 1977) it could be said that national interests are to be considered in energy facility planning and siting, such consideration is grossly inadequate . In examining the "adequacy" of the California Management Program 1977 as it relates to consideration of national interests, we studied the program from several viewpoints. First, we looked at the requirements as set out by NOAA in the regulations of 15 CFR 923.15(b). Second, we searched the guidelines and procedures issued for local program development to see what direction was given to assure adequate con- sideration. Third, the def initiveness of the program was analyzed to determine if one could accurately predict which energy facility would be allowed and which would be prohibited. (a) In the first test, the California management program 1977 failed NOAA's pre - scr ibed test of "adequate consideration of national interest." -8- Before the Secretary can approve California's program, it must be found that it: "... integrates {Qirough development of a body of information relating to the national interest involved in (energy) siting through consultation with cognizant Federal and regional bodies, as well as adjacent nearby State^sl the siting of facilities meeting requirements which are of greater than local concern into the determination of uses and areas of Statewide concern, will meet the requirements of Section 306(c)(8)." 15 CFR 923.15(a) In explaining through comments how this requirement is to be interpreted, NOAA states: This policy requirement is intended to assure that national concerns over facility siting are expressed and dealt with in the development and implementation of State coastal zone management programs . " 15 CFR 923.15 (b) , emphasis added. So we must carefully examine California's CMP 1977 to see exactly how this program has "expressed and dealt with" national concerns in energy siting. We find provisions to allow one LNG terminal, but: o Nowhere in the program do we find a "body of information" recogniz- ing or planning for shipments of Alaska crude oil that will be off- loaded on the Pacific coast to serve inland populations of the nation. o Nowhere do we find a "body of information" covering the probability, extent and possible location of OCS petroleum reserves offshore California. Nor do we find any awareness of description of the Department of Interior plans for lease sales and development of offshore California. o Nowhere do we see implicit or explicit projections of the need for pipelines, refineries, or deep water ports to serve local and inland populations or the national interest. o Nowhere do we find a "body of information" recognizing or planning for the fact that California has a number of Boards and Commissions independent of the Executive, that must also be concerned with the national interest insofar as energy facilities are concerned. Just one example is the State Lands Commission, of which two-thirds of the membership constitutes officials elected in their own right. No activity, such as pipelines, can take place in tideland waters without their approval, yet no reference is made to their authority to thwart national interest. These things are all clearly detailed in the 15 CFR 923.15(b) as facilities associ- ated with activities which involve a national interest. Certainly, California has been cognizant of the above activities, yet the CMP 1977 is silent on the State's plans to -9- deal with these activities. Certainly this type of planning was visualized in the CZMA. With specific regard to consultation with cognizant Federal agencies NOAA requires: "The management program should make reference to the view of cognizant Federal agencies as to how these national needs may be met in the coastal zone of that particular State. States should actively seek such guidance from these Federal agencies, particularly in view of the fact that all management programs will be reviewed with the opportunity for full comment by all affected Federal agencies prior to approval." 15 CFR 923.15(b). We find no evidence in the CMP 1977 where Federal agency views have been articulated. There are a number of reasons why approval of the California program should not be granted until the NOAA requirements of 15 CFR 923.15 are met. Compliance with the requirements will: (1) facilitate in the proper and expeditious development of energy facilities in and adjacent to the coastal zone as contemplated in the CZMA: (2) aid in development of needed energy facilities while providing appropriate protection of the coastal zone; and (3) provide definitive guidance essential to allow a party applying for a Federal license or filing an exploration or development plan to have some basis upon which to certify consistency with the management program as required in CZMA Section 307. There is a huge body of data, information, and long-term planning expressed in Federal and State documents, but none are furnished as an integral part of the California CMP 1977. This must be done before the program can be approved. (b) In the second test, it was found that guidelines and directives issued for local program development included in the RDEIS provide no consideration of national interests in energy planning and siting . Under Chapter 6 of the CCA 1977, all local governments along the coast are encouraged to develop local management programs in accordance with procedures and guidelines to be established (Section 30501 and Section 30620 (a)(3) ). And these local programs are to be submitted and certified for conformance with CCA 1977 by -10- December 1, 1980. How the local governments will implement the broad directives of the law is unclear. Local coastal program guidelines (in draft form as Appendix 7 of the RDEIS) were presumably issued in accordance with Section 30501 of CCA 1977, but were not approved by the California Coastal Commission at the time of inclusion in the RDEIS. But the guidelines issued are silent on how the many restrictive provisions concerning industrial activity should be administered and give not the slightest hint of what must be provided to assure adequate consideration of national interests . The interim guidelines required under Section 30260 of the CCA 1977 to control coastal zone development pending certification of local coastal programs (also in- cluded in draft form unapproved by the Coastal Commission as Attachment E in the DREIS) gi ve no guidance and make no provisions for industrial developments. No acknowledgment is made of the need to adequately consider national interests . (c) In the third test it was found that there can be no universal protection of national energy interests in local programs because such protection is neither a part of the CCA 1977, nor a part of the directives issued from the CCA 1977 . But the detailed manner in which local governments design and implement their local programs could have a significant effect on whether or not national energy interests will be adequate served or even served at all. This position is supported by OCZM. "At this time, it can be stated that the organization, authorities, and other aspects of the California Coastal Management Program allow for a rational decision-making process for such facilities (see Part II, Chapter 9). The implementation of the program will of course occur over many years. Disagreement will continue and possibly even litigation over specific issues ." RDEIS, page 128, emphasis added. Surely OCZM cannot judge as 'adequate" a prospective consideration of national energy interests which might come, on a purely voluntary basis, in a local program. Nor, can OCZM consider it "adequate" with recognition of such disagreement and possible litigation. -11- 5 . The provisions of the California law CCA 1977 ar e too v ague to allow adequate protection of national interests in energy siting . Many of the provisions of CCA 1977 allow petroleum operations and related facility location in the coastal zone, but only if not "feasible" to locate else- where, and only if accompanied by maximum "feasible" mitigation measures. "Feasible" is defined as: "Feasible" means capable of being accomplished in a successful manner within a reasonable p eriod of time , taking into account economic, environmental, social, and technological factors." CCA 1977, Section 30108, emphasis added. The "reasonable period of time" in the view of an affected local or state government would, no doubt, be different than that of the national populous suffering from insufficient supplies of energy. This and other indefinite provisions would, no doubt, be settled in the courts. But the excessive time that may be required to settle such matters gives strong evidence to the fact that a dequate consideration is not given the national interests. This is borne out by the OCZM statement: "Where the Coastal Act would conflict with an overriding national need under circumstances unforeseen when the Coastal Act was being prepared, it may be necessary to override the Coastal Act policies i n the national interest . Such cases can be expected to be rare. Except for national defense and national security needs as establish- ed by the President and the Congress, the determination of national interest needs, along with any measures neces s ary to mitigate the adverse impacts of meeting those needs, should be made cooperatively by the affected local, regional , State and Federal agencies. ' ' RDEIS, page 70, emphasis added. These ideas have national interest orientation, but these ideas are not a part of California's management program (CMP 1977) -- there is no mention of this idea in the CCA 1977. Nor are there any provisions in CCA 1977 which would allow these ideas to be implemented. When it takes the time required to satisfy the divergent interests of local, regional, State and Federal agencies, on a case-by-case basis, one cannot conclude that national interests will be adequately served. 6 . Management plan approval would cause a moratorium in important Federal activity because consistency provisions of CZMA, Section 307, would become effective . -12- Approval of the California Coastal Zone Management Program at this time would: o Drastically retard or halt Federal activity in or near California's coastal zone; and o Stop, or at least significantly slow, all future Federally permitted activity which might affect land or water use in the coastal zone. The "consistency provisions" of Section 307(c)(2) of the CZMA require all Federal actions to be consistent "to the maximum extent practicable" with any approved state management program. Upon approval of California's program, all Federal Depart- ments and agencies will be required to analyze each proposed activity to determine if the intended action is, to the maximum extent practicable, consistent with the program. We submit that it will be impracticable to validly assess such consistency until the local programs have been developed. It is not sufficient to say that because local programs must be structured in accordance with policies presented in CCA 1977, then any action consistent with CCA 1977 and published local guidelines will be consistent with the whole California CMP 1977. The terms of CCA 1977 are so broad as to make a valid test for consistency or degree of consistency extremely difficult or impossible until the local programs are adopted. Satisfying the consistency provisions of Section 307(c)(3) of the CZMA will be even more difficult. As allowed under CZMA draft regulations to implement Section 307 consistency requirements, California has elected to review for consis- tency all those Federal permits and licenses listed on page 74 of the RDEIS. These are the permits and licenses for activities believed to significantly affect land water uses in the coastal zone. A big majority of these licenses and permits are required during some phase of petroleum exploration, production, transportation, or refining. It may be possible to certify in some simple cases, but when any inter- related operations are involved, it will be extremely difficult for an oil operator to confidently certify as required by CZMA Section 307 (c)(3) that an intended -13- action is consistent with the entire California Coastal Management Program 1977, even at a time before any local programs are in effect. CMP 1977 is too vague and lacks both the specificity and body of information necessary for certification. For example, how can an operator answer the questions posed by Section 30260 of the CCA 1977. It conditions location of coastal-dependent industry upon: "However, where new or expanded coastal-dependent industrial facilities cannot feasibly be accommodated consistent with other policies of this division, they may nonetheless be permitted in accordance with this Section and Sections 30261 and 30262 if: ( 1 ) alternative locations are infeasible or more environmentally damaging; (2) to do otherwise would adversely affect the public welfare; and (3) adverse environmental effects are mitigated to the maximum extent feasible ." RDEIS, Appendix 1, emphasis added. The subjectivity of the terms "infeasible," "more environmentally damaging," and "affect the public welfare" defy definitive judgments by the operator. There would be no way for the operator to reach a decision which would be acceptable to all parties involved. The CCA 1977 referred to in the quote above as "this division" is replete with such problems. But even if an operator could somehow satisfy himself and others that a propos- ed activity subject to Section 307(c)(3) of the CZMA is consistent with the vague statewide features of the California Act, it could and probably would become an endless nightmare to comply with consistency when local programs become active. Each of many local governments will have to be satisfied that the intended action is consistent with its program. Which of the local programs an activity must be consis- tent with will, no doubt, have to be settled legally or through lengthy administrative processes. Suppose an operator applies to drill a well 10 or 12 miles out on the OCS. The well is served by people all along the coast, by helicopters operating from two or three nearby municipalities, and boats from one or more ports. All affected areas and local governments could have review privileges under the consistency provisions. Before drilling could begin, all would have to be satisfied. A change -14- or condition required by one local government could be vigorously opposed by the adjoining government. OCZM recommends in its draft consistency regulations that: "Any applicant for a Federal license or permit for an activity affecting land or water uses in the coastal zone should, as a preliminary matter, obtain the views and assistance of the State agency (defined as unit or units responsible for administering a program) regarding the means for assuring that the proposed activity complies with and will be conducted in a manner consistent with the management program." Draft Regulations, Section 921.6(b), published in 41 FR 189. We submit that under the vague terms of the CCA 1977 and the inadequate consideration of national interests afforded in the act, local management programs would very likely make OCS operations virtually impossible. Each and every permit would have to proceed through the tortuous negotiations route and appeal procedure if any one of the local programs was offended. It is almost a certainty that one or more local governments would find fault with nearly anything an oil operator does on the OCS. This is evidenced most clearly by the content of California's 1976 OCS study which the OCZM encourages local governments to use in management decisions. "It seems imperative that State and local government entities review and initiate implementation of the 1976 OCS project recommendation to enhance their ability to participate in and influence OCS management decisions ." RDEIS, page 59, emphasis added. This 1976 OCS study has many proposals which focus on local and State concerns at the expense of national interests. It recommends several actions which could delay exploration and development of badly needed oil reserves for years, such as delaying all OCS lease sales for environmental baseline data. With the kind of negative guidance this study presents as a model, one cannot expect local programs and local governments to do the cooperative things necessary to expedite OCS activity in the national interests that was contemplated in the CZMA. Opposition will simply flow from every direction. -15- A final point of concern about administration of consistency provisions during the period local management programs are developing is the following example. Suppose an oil operator sends his consistency statement to the state and three or four local governments, along with all the information they need to review the matter for concurrence or objection. Four or five months pass and it appears concurrence may come at the end of the six-month period. But then, another local program is certified by the state. Must the operator then start the process all over again and wait another six months before he can begin an appeal to the Secretary of Commerce? 7 . The consistency provisions of Sectio n 307 could be abused to the point of virtually halting any productive work on the PCS until such time as the California Coastal Act (CCA 1977) is revised or settled in the courts in favor of national intere sts. Approval of the California Coastal Management Pro gra m (CMP 1977) as presently written must be denied by the Department of Commerce . PART II THE CALIFORNIA COASTAL MANAGEMENT PROGRAM AND REVISED DRAFT IMPACT STATEMENT DOES NOT COMPLY WITH FEDERAL LAWS AND REGULATIONS The National Environmental Policy Act (NEPA) stipulated several features to be included in every environmental impact statement (EIS) and the Council on Environmental Quality (CEQ) issued detailed guidelines as to how Federal depart- ments and agencies should most properly implement these features of NEPA. The Department of Commerce adopted the CEQ guidelines as a required procedure: "Heads of operating units shall ... ensure that environmental impact statements include all information required in paragraph 1500.8(a) of the CEQ guidelines." 40 FR 24, Section 6 (i). We have studied the EIS issued by OCZM and conclude there are serious deficiencies in the statement and that it does not represent the kind of assessment intended by NEPA or the Department of Commerce regulations. Some of these deficiencies will be covered in this Part II. 1. The RDEIS does not adequately describe the environment to be affected by the proposed Federal action. The CEQ guidelines for preparation of an EIS adopted by Commerce state: "The statement should also succinct ly describe the environment of the area affected as it exists prior to a proposed action, including other Federal activities in the area affected by the proposed action which are related to the proposed action." 50 CFR 1500.8(a)(1). (Emphasis added) Included in the RDEIS are Appendix 3, "Significant Coastal, Estuarine, Habitat, and Recreational Areas" and Appendix 4, "Areas of Concern in the Coastal Zone." But mere tabulations are not sufficient to "succinctly describe the environment of the area affected," nor is it sufficient to determine impacts. To comply with Commerce's requirement, a description of the environment affected by approval of the management program should include: -17- Descriptions of industrial and commercial locations and types in the area; Areas used for various agricultural activities; Size, location, and description of the municipalities along the coast; Details on energy sources, facilities, and movements in and near the coastal zone. And much more. All of these items are a part of the environment equally important to the sensitive areas and habitats. Each of these features and activities may be significantly affected by the proposed Federal action of approving the California CMP 1977. No attempt was made to include a description in the RDEIS of other federal activities affected by the proposed action. Some vague reference to OCS activity are included. But approval of the management program will, through the consistency provisions of CZMA, Section 307, affect a large number of Federal developments and actions not ever mentioned. These activities and actions should be addressed in the RDEIS 2. Population and growth characteristics have not been identified. For an EIS, Commerce regulations also say: "Agencies should also take care to identify, as appropriate, population and growth characteristics of the affected area and any population and growth assumptions used to justify the project or program or to determine secondary population and growth impacts resulting from the proposed action and its alternatives." 40 CFR 1500.8(a)(1). Although the need for preserving and increasing public access to beaches is vividly addressed in CCA 1977, population and growth patterns are at the very heart of coastal zone management and most assuredly will be affected by the proposed federal action. Thus, it is obviously appropriate that this specific feature would be included in the RDEIS. We can find no such coverage except for general references concerning the people living within selected distances from the coast line. -18- 3 . Environmental Impacts are neither completely nor adequately stated in the RDEIS. The RDEIS has enumerated many of the environmental impacts which are likely to result from the proposed action. But the assessment of these impacts has been shallow and unquantified. The far-reaching and long-term impacts, both direct and indirect, are so important as to deserve the most exhaustive investigation possible using: "...a systematic, interdisciplinary approach, which will ensure the integrated use of the natural and social sciences and the environ- mental design arts in planning and decision making which may have an impact on man's environment." NEPA, Section 102. (a) The impact statement has inadequately assessed the negative effects upon petroleum supplies to the nation. The regulation adopted by Commerce for EIS preparation: "...requires agencies to assess the positive and negative effects of the proposed action as it affects both the national and inter- national environment." 40 CFR 1500.8(a) (3) (i). There is strong evidence to suggest that with approval of California's management program there will be a halt, or at least a substantial slowdown, of OCS petroleum exploration and development activity. This is strongly evidenced in: (1) OCS Project Draft Findings and Recommendations issued by letter from the State Office of Planning and Research on February 11, 1977; (2) The history of significant opposition to OCS development in California which is exampled by two suits filed in 1975 to stop OCS Lease Sale 35. (3) The often expressed desire for local control of OCS as seen in the statement of Mr. Thomas Quinn, Chairman of the California Air Resources Board, when he referred directly to the CZMA and the consistency pro- visions of Section 307. "I think also we should note that this particular regulation is going to have the effect of firmly putting California in the driver's seat in the development of oil on the Outer Con ti nental Shelf and the handling of crude oil coming in from Alaska." -19- "When this rule is in effect it is clearly going to give the State of California authority to determine how oil is going to be handled here in California and is going to give us an eff e ctive veto over plans that the oil companies might unilaterally embark on without this rule." Transcript of Proceedings before State of California Air Resources Board, October 27 and 28, 1975, at 221-22. (Emphasis added) (4) Numerous statements and testimony by state officials discouraging plans for the use of Alaska oil that in any way involves the state of California. Most assuredly, the high probability of actions by the State to slow down or stop development on the California OCS or transport of Alaskan oil through California mandates that an indepth analysis of the impact on oil and gas supplies to the nation be included in the EIS. This has not been done and leaves the impact statement inadequate in a very serious way. (b) The EIS has not assessed the negative impact on beaches, intertidal pools , and coastal waters of increased access by the public. We recognize the strong desire and beneficial impacts of making the beach and ocean available to everyone. However, the increased public accessability , together with expected population growths will have negative impacts upon those sensitive intertidal lands and coastal water so important to many mammals, marine organisms, and birds. These negative impacts have not been adequately assessed and weighed against the positive impacts of increased public access. (c) Secondary or indirect impacts have not been adequately evaluated . EIS preparation regulations adopted by Commerce state: "Secondary or indrect, as well as primary or indirect, consequences for the environment should be included in the analysis." 40 CFR 1500.8(a) (3) (ii). It is obvious that the approval of the California CMP 1977 will have numerous significant indirect impacts on jobs, small business people, apartment owners, etc. These indirect effects are not even completely enumerated and certainly have not been assessed in the RDEIS. Some of these indirect impacts could be even greater than some of the direct impacts. -20- (d) The EIS is vague and projected impacts are based on opinions unsub - stantiated by studies. The adopted Commerce regulations explain: "Highly technical and specialized analyses and data should be avoided in the body of the draft impact statement. Such materials should be attached as appendices or footnoted with adequate biblio- raphic references." 40 CFR 1500.8(a)(1). The RDEIS properly included footnotes on references used (page 136) , but these studies consider a relatively narrow spectrum of the large range of impacts. Most of the statements on impact did not cite any reference to a study and appeared 'to represent only an opinion of the writer. Some examples are listed below as they appear in Part III-C of the RDEIS with emphasis added to illustrate the vague or arbitrary nature of the statements: o "This impact assessment is based on the assumption that the California Coastal Management Program will achieve the objectives which have been identified in Part II, Chapter 3. RDEIS, page 96 (emphasis added) o " Based upon the objectives, policies, authorities, directives, and guidelines presented in the California Coastal Management Program , it appears that the Program is a program of substance and has an adequate process to bring about net beneficial environmental impacts to the marine environment as some of California's resources will be restored and other protected on a long-term basis." RDEIS, page 124 (emphasis added) o "This added investment Ejje to higher costs in the Coastal Zong) stim - ulates other business, but it might also make certain business develop- ment or expansion programs financially questionable." RDEIS, page 101 (emphasis added) 5. An environmental impact cannot be properly assessed by looking at what the stated objective of the action is nor by taking the mere opinion of the writer. We believe the assessments as intended by NEPA are to be based on objective studies by experts and the conclusions expressed in concise terms. The complete absence of -21- quantification of impacts described cannot be excused by tbe difficulty of the task. The short and long-term social, economic, and environmental impacts to come from the proposed action are so large as to make the "less than best" effort reflected by this RDEIS unacceptable. -22- PACIFIC GLA.S AUSTID ELECTRIC COMPANY IPO^IE 7 7 BEALE STREET • SAN FRANCISCO, CALIFORNIA 94106 • (415) 781-4211 JOHN C. MORRISSEY VICE PRESIDENT AND GENERAL COUNSEL MALCOLM H. FURBUSH ASSOCIATE GENERAL COUNSEL CHARLES T. VAN DEUSEN MALCOLM A. MacKILLOP PHILIP A. CRANE, JR. HENRY J. LaPLANTE RICHARD A. CLARKE JOHN B. 3 IBSON ASSISTANT GENERAL COUNSEL . Edward J. McG* :rt l. bordon JAMES C. LOOS -f 5. CASBIDY Richard l. Me IARD J. DCLLASANTA Richard h. Mc N B. DENTON Robert R. RiCl PH S. Englert, JR. IVOR £. SAMSOl VLO D. ERICKSON Shirley A. Sap- Robert n. 5ch :tte Dreen LOUIS F. Scho June 1, 19 77 Mr. Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street N.W. Washington, D. C. 20235 Dear Mr. Dehart: Re: State of California Coastal Management Program and Draft Environmental Impact Statement (Revised) Pacific Gas and Electric Company (PGandE) is pleased to offer its comments on the Office of Coastal Zone Management's Draft Environmental Impact Statement (DEIS) relative to California's Coastal Management Program. PGandE serves more than eight million people in northern and central California with gas and electricity, most of whom live in the coastal zone. The Company operates electric generating plants at three locations on the California coast and two locations on San Francisco Bay. Consequently, PGandE has a continuing and vital interest in the future of the nation's coastal resources. In our opinion, a certification by the Secretary of Commerce of California's Coastal Program under the Federal Coastal Zone Management Act of 1972 (CZMA) (16 USC 1451 et seq.) would be premature because the California Coastal Act of 19 76 (Cal. Pub. Res. Code §30000, et seq.) by itself is not a "Management Program" as defined in the CZMA (16 USC 1453 (11)) and does not fulfill all the CZMA's mandatory requirements for certification (16 USC § 1455(c)) "'Management Program' includes, but is not limited to, a comprehensive statement in words, maps, illustrations, or other media of communication, Mr. Grant Dehart -2- June 1, 19 77 prepared and adopted by the state in accordance with the provisions of this Chapter, setting forth objectives, policies, and standards to guide public and private uses of lands and waters in the Coastal Zone" (16 USC § 1453 (11) ) . To be prepared in accordance with "this Chapter," a program must contain at least the following, among other things: a) CZMA requires a detailed definition of what constitutes permissible land and water uses within the state's Coastal Zone (16 USC § 1454(b)(2)). b) CZMA requires an inventory and designation of areas of particular concern within the Coastal Zone (16 USC § 1454(b) (3) ) . c) CZMA requires the Secretary of Commerce to affirmatively find that the program provides for adequate consideration of the national interest in the siting of facilities, including energy facilities which are necessary to meet requirements which are other than local in nature (16 USC §1455 (c) (8) ) . At this time California does not have a management program which fits these criteria. The California Coastal Act of 1976 is, and was intended to be, only a statement of goals and policies which form a framework in which continued state coastal planning and management may proceed to development of a Coastal Management Program, through a state commission, which relies heavily on local government and local land use planning (Cal. Pub. Res. Code §3000 4) . For example, although the framework was provided by the Legislature, the development of the "Local Coastal Program," which is to be a part of an eventual management program, has barely commenced and has more than two years to run (Cal. Pub. Res. Code § 30501(b)). During the next two years local governments must enact land use plans, zoning ordinances, district maps and implementing actions which, taken together with the Act, will form a comprehensive management program for California's coast (Cal. Pub. Res. Code § 30108). Because California's coastline is over 1000 miles- in length, the California Coastal Act envisions a comprehensive process involving local government (see Cal. Pub. Res. Code § 30500) , the State and Regional Commissions and the Legislature (see Cal. Pub. Res. Code §§ 30502, 30502.5) for the designation of permitted and prohibited uses within specific geographical areas. Completion of this process which is required by CZMA (16 USC § 1454(b) (2)) will not occur until 19 80. Mr. Grant Dehart -3- June 1, 19 77 The California Coastal Act provides a process for defining areas of particular environmental concern (Cal. Pub. Res. Code §§ 3010 7.5, 30116) and a method whereby the inventory required by CZMA (16 USC § 1454(b) (3)) can be made and approved (Cal. Pub. Res. Code § 30502). To date, however, the California Coastal Commission has not taken any action to compile such an inventory and its staff has recommended that compilation of the required inventory be deferred indefinitely. Prior to program approval the Secretary must find that the state has adequately considered national as well as local requirements. However, not only have State of California agencies taken a position with respect to energy facilities which discourages their siting in the Coastal Area, but also the State Energy Commission, which is a part of the Coastal Management process (see Cal. Pub. Res. Code § 30 413) , has recently refused to designate any sites including coastal sites on which electric generating plants may be located as required by state law (Pub. Res. Code § 25309(e)); see 1977 Biennial Report of the State Energy Commission , Vol. 7, attachment A, Commissioner Pasternak dissenting) . An examination of the California Coastal Act will not disclose any provisions mandating consideration of national energy requirements. Recent history indicates that absent fundamental policy changes at the state level mandated by strong federal pressure, the state will continue its refusal to recognize the national interest in planning for and siting of facilities which are necessary to meet other than local requirements. Approval of a California Coastal Management Program is premature because essential elements mandated by the Coastal Management Act of 19 72, such as those mentioned above, have not and will not have been developed for many months. Further, to approve a program so deficient in provisions requiring consideration of national requirements clearly would be contrary to the federal policy embodied in the Federal Coastal Zone Management Act. PGandE appreciates this opportunity to comment on this important subject. Very truly yours . baumJ^aotner^ SOUTHERN CALIFORNIA COMPANY 810 SOUTH FLOWER STREET • LOS ANGELES. CALIFORNIA Mailing Address BOX 3249 TERMINAL ANNEX. LOS ANQELES. CALIFORNIA 90061 June 1, 1977 Mr. Grant Dehart National Oceanic & Atmospheric Administration Office of Coastal Zone Management 3300 Whitehaven Street, N.W. Washington, D. C. 20235 Grant, attached are two copies of our comments on the Draft Environmental Impact Statement on California's Coastal Management Program. These should be in your hands by June 3, as we discussed last week. Thank you for allowing this late submission. Please let me know if I can be of further assistance. Sincerely, OZ^fc**^ S. J. Spurgeon ^ Environmental Affairs Representative SJS/al Attachment UNITED STATES OF AMERICA BEFORE THE DEPARTMENT OF COMMERCE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION OFFICE OF COASTAL ZONE MANAGEMENT COMMENTS ON BEHALF OF SOUTHERN CALIFORNIA GAS COMPANY AND WESTERN LNG TERMINAL ASSOCIATES RE STATE OF CALIFORNIA COASTAL MANAGEMENT PROGRAM AND REVISED DRAFT ENVIRONMENTAL IMPACT STATEMENT Southern California Gas Company and Western LNG Terminal Associates, pursuant to NOAA's request, hereby submit their comments on the Draft Revised Environmental Impact Statement (DEIS) prepared by the Office of Coastal Zone Management and the California Coastal Commission on the California Coastal Management Program. Southern California Gas Company, a subsidiary of Pacific Lighting Corporation, is the largest gas distributor in the United States in terms of number of customers served. Western LNG Terminal Associates is a partnership composed of Western LNG Terminal Company, a subsidiary of Pacific Lighting Corporation, and Pacific Gas LNG Terminal Company, a subsidiary of Pacific Gas and Electric Company. In view of our continuing interest in activities affecting the coastal zone of the State of California, we submit the comments which follow. All correspondence or communications in connection with these comments should be addressed to: Reine J. Corbeil, Manager Environmental Affairs Southern California Gas Company P. 0. Box 3249, Terminal Annex Los Angeles, California 90051 (213) 689-3618 or Stephen J. Spurgeon Environmental Affairs Representative Southern California Gas Company P. O. Box 3249, Terminal Annex Los Angeles, California 90051 (213) 689-2286 In these comments we focus on those portions of the DEIS pertaining to energy facilities. More particularly we wish to point out that (1) the DEIS 1 description of the California Coastal Act's provision relating to LNG requires modification; (2) the certification procedure outlined in the DEIS is not totally accurate and should be corrected; (3) the implementation of the California Coastal Act of 1976 (California Coastal Act) should be carefully supervised pursuant to the Coastal Zone Management Act of 1972 (Federal Coastal Act) to assure that California adequately considers the national interest; (4) any certification of California's Coastal Act should be conditioned upon promulgation of more precise regulatory standards for coastal energy facilities; and (5) the DEIS does not contain an adequate discussion of impacts generated by the California Coastal Act. I. THE DEIS' DESCRIPTION OF LNG PROVISIONS MUST BE CORRECTED Mrs. Jane Goichman, attorney for Western LNG Terminal Associates, made an oral statement specifically addressed to this -2- question at the Office of Coastal Zone Management (OCZM) public hearing in Los Angeles on May 19, 1977. In that presentation it was noted that the DEIS' paraphrase of the California Coastal Act's provision pertaining to LNG was inaccurate. The particular problems together with a recommended revision are found in Mrs. Goichman's statement, attached hereto. II. THE DEIS STATEMENT PERTAINING TO CALIFORNIA'S CERTIFICATION PROCEDURE IS INACCURATE The Federal Coastal Zone Management Act provides, in section 307(c)(3)(A) (16 USC section 1456(c)(3)(A)), that: "...any applicant for a required Federal license or permit to conduct an activity affecting land or water uses in the coastal zone of that state shall provide in the application to the licensing or permitting agency a certification that the proposed activity complies with the state's approved program and that such activity will be conducted in a manner consistent with the program. At the earliest practicable time, the state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to the applicant's certification ." (Emphasis added.) The statement in the DEIS at page 72 which refers to interaction between California and a federal agency called upon to issue a license or a permit says: -3- "Although States are given the responsibility for making these determinations of Federal consistency under the CZMA, in California the local coastal programs will be regarded as a refinement of the State coastal management program and local governments will f therefore/ be delegated the authority to act on behalf of the State in making the initial review of Federal 1 icense and permit activities and Federal assistance acti vities to determine whether they would be consistent with the State (and the local) coastal program . Decisions by local governments of Federal activities can be appealed to the Coastal Commission under the same rules that apply to activities requiring coastal permits." (Emphasis added.) This is an incorrect interpretation of the provision of the California Coastal Act relating to certification authority. Said provision states, in pertinent part, as follows: "The commission, unless specifically otherwise provided, ... is designated as the state coastal zone planning and management agency for any and all purposes, and may , exercise any and all powers set forth in the Federal Coastal Zone Management Act of 1972 (16 U.S.C. 1451, et seq. ) or any amendment thereto or any other federal act heretofore or hereafter enacted that relates to the planning or management of the coastal zone. -4- "In addition to any other authority, the commission may, . . . , grant or issue any certificate or statement required pursuant to any such federal law that the activity of any person, is in conformity with the provisions of this division." California Public Resources Code, Section 30330 found at page la-13 of DEIS (Emphasis added). The foregoing clearly provides for certification only by the state commission. Furthermore, a careful reading of the remainder of the Coastal Act demonstrates that no specific provision is made else- where for local certification of an activity. Assuming for purposes of argument that local agencies may assume this jurisdiction after the local coastal program is approved by the state commission, an assumption running counter to the specific provisions of Section 30330, it is clear that such delegation of authority cannot apply to those activities, including major energy facilities described in Public Resources Code Section -5- 30603(a).* Each of the activities there identified may be appealed to the state commission even after certification of the local coastal program. Hence the state commission will, in many instances, render the final decision. Each of the activities described in section 30603(a) is appealable to the commission because of its regional or statewide concern. Since the state commission will have continuing responsibility for overseeing developments with regional or statewide impact, it should be the only body which can properly undertake the certification of such facilities. Finally, the federal government should have to look to only one entity for objection to or certification of compliance. * Section 30603(a) provides as follows: "30603. (a) After certification of its local coastal program, an action taken by a local government on a coastal development permit application may be appealed to the commission for any of the following: (1) Developments approved by the local government between the sea and the first public road paralleling the sea or within 300 feet of the inland extent of any beach or of the mean high tide line of the sea where there is no beach whichever is the greater distance. (2) Developments approved by the local government not included with paragraph (1) of this subdivision located on tidelands, submerged lands, public trust lands, within 100 feet of any wetland, estuary, stream, or within 300 feet of the top of the seaward face of any coastal bluff. (3) Developments approved by the local government not included within paragraph (1) or (2) of this subdivision located in a sensitive coastal resource area if the allegation on appeal is that the development is not in conformity with the implementing actions of the certified local coastal program. (4) Any development approved by a coastal county that is not designated as the principal permitted use under the zoning ordinance or zoning district map approved pursuant to Chapter 6 (commencing with section 30500). (5) Any development which constitutes a major public works project or a major energy facility." -6- Since many of the aforedescr ibed activities will be reviewed by two levels of government, that level which is the final permit authority should be the certification agency. In summary, we view the state commission as the sole authority to approve or disapprove an applicant's certification of consistency, which is required by the Federal Coastal Zone Management Act. We therefore, strongly recommend that the language found at page 72 of the DEIS be amended to more accurately reflect the provisions of the federal and state statutes. In any event, the state commission should be the certification agency for those activities described in section 30603(a). III. THE CALIFORNIA COASTAL ACT FAILS TO ADEQUATELY CONSIDER THE NATIONAL INTEREST The Coastal Zone Management Act, as amended, provides that, prior to granting approval of a management program submitted by a coastal state, the Secretary shall find: "(8) The management program provides for adequate consideration of the national interest involved in planning for, and in the siting of, facilities (including energy facilities in, or which significantly affect, such state's coastal zone) which are necessary to meet requirements which are other than local in nature. In the case of such energy facilities, the Secretary shall find that the state has given such consideration to any -7- applicable interstate energy plan or program." (16 U.S.C. Section 1455 (c)(8)) The DEIS suggests that the California Coastal Act satisfies the Federal Coastal Act requirements with regard to providing for the "national interest." There are two important points to be made, however. First, the California Coastal Act makes only one reference to the importance of considering the national interest as it relates to issues of coastal planning, development and management.* This lone reference appears at the very beginning of the California Coastal Act in the legislative findings and declarations. Consideration of national interests with other factors — which the Federal Coastal Act mandates — is not reflected elsewhere in the California Coastal Act or in the guidelines promulgated thereunder. * Section 30004(b) provides: "To ensure conformity with the provisions of this division, and to provide maximum state involvement in federal activities allowable under federal law or regulations or the United States Constitution which affect California's coastal resources, to protect regional, state, and national interests in assuring the maintenance of the long-term productivity and economic vitality of coastal resources necessary for the well-being of the people of the state, and to avoid long-term costs to the public and a diminished quality of life resulting from the misuse of coastal resources, to coordinate and integrate the activities of the many agencies whose activities impact the coastal zone, and to supplement their activities in matters not properly within the jurisdiction of any existing agency, it is necessary to provide for continued state coastal planning and management through a state coastal commission." (Emphasis added.) -8- The second significant point is that the DEIS itself is incorrect when it states that the California Coastal Act satisfies the requirements of the Federal Coastal Zone Management Act insofar as providing for the national interest is concerned. As examples of the foregoing, consider first Chapter 11 of the DEIS, "The National Interest and the Consistency of Federal Actions," which reviews the national interest in the California coastal zone and states in the first paragraph on page 70: "The Coastal Act's energy policies, especially important because of the Department of the Interior's leasing of Outer Continental Shelf (OCS) areas for petroleum exploration and extraction, take into account California's role in national energy supply. The energy policies are based on a willingness to respond with a broader State role in meeting the Nation's energy requirements if such a need is clearly identified and if California's environmental economic, and legal interests are properly planned for and protected . Because needs -- National, State, and local -- may change in the future, if occasions should arise when certain Federal activities would conflict with Coastal Act policies, the representatives of the Federal and State agencies concerned will have to consult and cooperate to resolve the conflicts consistent with national objectives." (Emphasis added.) -9- The Federal Coastal Act requires "...adequate consideration of the national interest involved in ..." planning and siting energy facilities; it does not contemplate that California "...respond with a broader state role ... if such a need is clearly identified ... . " Moreover, aside from section 30004(b), supra , the California Coastal Act does not recognize the national interest in energy resource development. Article 7 ("Industrial Development") of Chapter 3 ("Coastal Resources Planning and Management Policies") makes no reference to the need to consider national interest along with other relevant factors in energy facility planning. Similarly, Chapter 13 of the DEIS deals with "Citizen and Government Involvement in the Management Program." The fourth paragraph on page 82 states, in part: "The Coastal Act recognizes that some future coastal sites may be needed for new or expanded power plants, that new port terminals may be needed for larger petroleum tankers, and that offshore petroleum production may be required as part of a national energy conservation and development program." Nothing in the California Coastal Act recognizes a requirement to meet the needs "of a national energy conservation and development program" except insofar as section 30004(b) can be construed to embrace this requirement. The DEIS is, therefore, incorrect on this point. Finally, the Coastal Commission has adopted certain "interpretive guidelines" for use in coastal planning and permit -10- issuance. These are set forth in Attachment E to the DEIS. Guideline 15c for the Gaviota Coast (DEIS at p. E-25) and 22b for Mandalay Beach (DEIS at p. E-27) deal with oil facilities yet focus their exclusive concern on viewshed and expansion of facilities into public or agricultural areas. They reflect no concern for local, state or national energy needs or interests. These are recognized to be interim guidelines and may be modified before being adopted. It is clear, however, that consideration of national interest played no role at the drafting stage. Nevertheless, this was a proper consideration, one which is mandated by the Federal Coastal Act. The foregoing examples are cited to highlight the fact that although the California Coastal Act, in its introductory provisions, mentions the concept of "national interests," the statute and guidelines, in their operative parts, do not reflect the need to consider such interests. For this reason we recommend that this deficiency either be corrected prior to Secretarial approval of the California coastal zone management program or, if the OCZM should find that the California management program should be approved in its present form, that such approval be conditioned on the requirement that, within six months of certification, the California Coastal Commission include in its policies and regulations a statement recognizing that a national energy supply shortage presently exists and that the development of new oil and gas energy resources within the coastal zone is in the national interest. -11- IV. THE CALIFORNIA COASTAL MANAGEMENT PROGRAM FAILS TO PROVIDE NECESSARY STANDARDS FOR PROJECT PLANNING Neither the California Coastal Act nor the guidelines which have been promulgated pursuant thereto provide standards for the various kinds or major projects which might be planned for development in the coastal zone. Energy projects are capital-intensive undertakings involving long lead times and the commitment of large financial resources at an early stage of project development; such projects may require, at the federal level, obtaining permits from many agencies and compliance with the regulations of others. Because of the complex nature of many kinds of projects -- especially energy projects — the State should provide a fairly detailed framework of standards for various sorts of development which would enable an applicant to engage in preliminary planning for a project. Of course, not every facet of a project nor condition of a permit can be incorporated in a standard since many requirements imposed on a coastal development will depend upon the particular site involved -- but general planning parameters can and should be specified by the State. Under the Federal Coastal Zone Management Act a state's "management program" includes "...a comprehensive statement ... prepared and adopted by the state ... setting forth objectives, policies, and standards to guide public and private uses of lands and waters in the coastal zone." (16 USC section 1453(11)); (emphasis added.) Under sections 1454 and 1455 of the same statute the -12- Secretary may make coastal zone plan development and administrative grants to a coastal state only if the state's management program includes the elements set forth in section 1454(b). It appears that standards of the sort envisioned are required both by the definition of a "management program" and by elements (4), (5), (6), (8) and (9) of section 1454(b).* The DEIS overlooks this deficiency in the California coastal zone management program. This short- coming should be corrected prior to Secretarial approval of the * Section 1454(b) provides, in part: "b) The management program for each coastal state shall include each of the following requirements: *** (4) An identification of the means by which the state proposes to exert control over the land uses and water uses referred to in paragraph (2), including a listing of relevant constitutional provisions, laws, regulations, and judicial decisions (5) Broad guidelines on priorities of uses in particular areas, including specifically those uses of lowest priority. (6) A description of the organizational structure proposed to implement such management program, including the responsibilities and interrelationships of local, areawide, state, regional, and interstate agencies in the management process. *** (8) A planning process for energy facilities likely to be located in, or which may significantly affect, the coastal zone, including, but not limited to, a process for anticipating and managing the impacts from such facilities. (9) A planning process for (A) assessing the effects of shoreline erosion (however caused), and (B) studying and evaluating ways to control, or lessen the impact of, such erosion, and to restore areas adversely affected by such erosion. No management program is required to meet the requirements in paragraphs (7), (8) and (9) before October 1, 1978." -13- California coastal zone management program or, if the OCZM should find that the California management program should be approved in its present form, that such approval be conditioned on the requirement that, within three months of certification, the California Coastal Commission promulgate standards of sufficient detail to enable potential applicants to engage in effective planning. V. THE DRAFT ENVIRONMENTAL IMPACT STATEMENT IS LEGALLY DEFICIENT In general, the revised DEIS appears to be devoted almost exclusively to summarization of the policies contained within the California Coastal Act of 1976 and portions of the Coastal Plan. It contains only a handful of pages analyzing the economic, environmental, and social impact of the Coastal Act on over 1000 miles of coastline. The requirements of the National Environmental Policy Act (NEPA) (42 USC 4321 et seq. ) clearly mandate a comprehensive discussion of impacts. Section 4321 of NEPA provides, in pertinent part: "The Congress authorizes and directs that, to the fullest extent possible: *** (2) all agencies of the Federal Government shall -- *** (c) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human -14- environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action,..." This section of NEPA imposes duties which are not inherently flexible and which must be complied with to the fullest extent possible unless there is a clear conflict of statutory authority not present here. Calvert Cliffs' Coordinating Committee v. U.S. Atomic Energy Commission , 449 F.2d 1109, 1113-5 (D.C. Cir. 1971). See also , Sierra Club v. Froehlke , 486 F.2d 946, 950 (7th Cir. 1973). The DEIS does not contain a sufficiently comprehensive, detailed statement of impacts. The Final Environmental Impact Statement should contain a significantly expanded impact analysis in order to meet the standards of legal adequacy. CONCLUSION As has been indicated, the DEIS mischaracter izes the LNG and certification provisions of the California Coastal Act. The DEIS should correct these errors. Furthermore, the Coastal Act should be certified only upon the condition that implementation of the Act reflects adequate consideration of the national interest, particularly with regard to proposed energy developments. Finally, -15- federal certification should also require promulgation of more specific standards for energy facilities within a reasonable time frame . Respectfully submitted, Reine J. Corbeil ) "•$ . < ( 1 / \ -V 1 /c / - -16- ORAL TESTIMONY RE DRAFT ENVIRONMENTAL IMPACT STATEMENT ON CALIFORNIA COASTAL ACT May 19, 1977 I am Jane Goichman, an attorney for Western LNG Terminal Associates. Western LNG Terminal Associates is a partnership composed of Western LNG Terminal Company, a subsidiary of Pacific Lighting Corporation, and Pacific Gas LNG Terminal Company, a subsidiary of Pacific Gas and Electric Company. As you are undoubtedly aware, Western LNG Terminal Associates has applications pending before the Federal Power Commission and other federal agencies as well as state and local agencies for the construction and operation of LNG terminals here in California. Our comments tonight will be addressed solely to the interpretation given to section 30261(b) of the California Coastal Act by the Draft EIS. Written comments will be submitted on this topic as well as other items of concern to the Pacific Lighting Corporation. Section 30261(b) of the California Coastal Act, which deals with LNG terminal siting, is paraphrased on page 128 of the DEIS as follows: -l- "30261(b) - Allows only one liquefied gas terminal until risks are eliminated or lack of gas supply would cause substantial public harm. First site to be located away from population centers . When safety is proven, siting is to occur only in developed or industrialized port areas." (Emphasis added.) In our opinion, there are two significant errors in this paraphrase of the Code Section, pertaining to (1) the elimination of risk and proof of safety and (2) the location of a first terminal. If you would be good enough to turn to Appendix la, page 9 of the DEIS, you will find section 30261(b) beginning approximately one-third of the way down the page. The section reads as follows: "(b) Only one liquefied natural gas terminal shall be permitted in the coastal zone until engineering and operational practices can eliminate any significant risk to life due to accident or until guaranteed supplies of liquefied natural gas and distribution system dependence on liquefied natural gas are substantial enough that an interruption of service from a single liquefied natural gas facility would cause substantial public harm. -li- "Until the risk inherent in liquefied natural gas terminal operations can be sufficiently identified and overcome and such terminals are found to be consistent with the health and safety of nearby human populations, terminals shall be built only at sites remote from human population concentrations. Other unrelated development in the vicinity of a liquefied natural gas terminal site which is remote from human population concentrations shall be prohibited. At such time as liquefied natural gas marine terminal operations are found consistent with public safety, terminal sites only in developed or industrialized port areas areas may be approved." You will note that this subsection deals with two major issues: The first is the number of LNG terminals to be built and the criteria therefor, discussed in the first paragraph. The second, found in the second paragraph, is the criteria ^o bo- used for siting an LNG terminal. Turning to the first paragraph of subsection 30261(b) the paraphrase in the DEIS suggests that all risks must be eliminated before a second terminal could be approved. The Coastal Act code section requires elimination of significant risk, not all risks. Clearly, no technological undertaking, even at the most basic level exists absent risk. We would -111- suggest that the paraphrase in the DEIS be modified to correct this misinterpretation. Moving to the second paragraph, I would point out it provides that an LNG terminal need be sited in a locale away from human population concentration only if a finding of the terminal's consistency with the health and safety of nearby human populations cannot be made. In other words, the paragraph clearly does not dictate that the first LNG site be located away from population concentrations. In fact, once such a finding is made, the Act requires that terminals be sited in industrial or developed port areas. The DEIS paraphrase suggests an interpretation which would permit the safety finding to be predicated only upon knowledge acquired from an LNG terminal site constructed and operated within the State of California. Clearly, this is an erroneous reading. LNG safety, as the safety of any other industrial facility, certainly can be demonstrated by reference to similar facilities existing elsewhere in the United States or in foreign nations. The historical background of section 30261(b) of the Coastal Act dealing with LNG siting, we feel, bolsters our interpretation. Allow me to outline this background for you. First, as you undoubtedly know, this subsection is based upon the California Coastal Plan which the Coastal Commission submitted to the Legislature in late 1975. The Plan was the product of many -IV- MCCUTCHEN. BLACK. VERLEGER 5. SHEA COUNSELORS AT LAW THIRTIETH FLOOR 3435 WILSHIRE BOULEVARD LOS ANGELES. CALIFORNIA 90010 TELEPHONE (213) 381-3411 TELEX: 698261 May 24, 1977 Mr. Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street, N.W. Washington, D.C. 20235 Re: WOGA - Coastal Zone Management Act Dear Mr. Dehart: Enclosed herewith are copies of a written state- ment delivered on behalf of the Western Oil & Gas Association by Philip K. Verleger on May 19, and a written memorandum submitted at that time regarding the Draft Environmental Impact Statement prepared by the Office of Coastal Zone Management on the California Coastal Management Program. While I believe your office already has copies of these, we are forwarding them to you from an abundance of caution. We plan to submit further comments on behalf of the Association prior to the end of the month. Sincerely, n n ' / / \ .*■ - - " i y\ Robert K. Wrede Of McCUTCHEN, BLACK, VERLEGER & SHEA Enclosures RKW:src STATEMENT OF WESTERN OIL & GAS ASSOCIATION WITH RESPECT TO CALIFORNIA COASTAL ZONE MANAGEMENT PROGRAM My name is Philip Verleger, I am General Counsel to the Western Oil & Gas Association and I appear for that Associ- ation. The Western Oil & Gas Association is a Trade Association whose membership includes companies that produce over 90% of the oil produced, refined and marketed in the States of California, Oregon, Washington, Hawaii, Alaska, Arizona and Nevada, Our members produce oil within the Coastal Zone and on the Outer Continental Shelf; they operate pipelines, tanker terminals, refineries and treatment plants which are within the Coastal Zone. The public uses our products for an infinite variety of purposes. One is to enjoy recreational benefits in the Coastal Zone which the Federal Act is intended among other things to encourage. We are and have been from the beginning intensely concerned with the failure of the California Coastal Zone to expressly provide for the orderly and expeditious development of sorely needed energy resources. Many of our members have worked diligently in the past in an effort to see to it that California legislation made a reasonable balance between orderly energy development and preserving the coastal zone. My purpose in coming here is not to criticize the California legislation, but rather to bring a different message. The California legislation did not provide a Coastal Zone program, as that term is used in the Federal Coastal Zone Management Act. What it rather provided was a mechanism for bringing into existence such a program. The California Act does not define the use of so much as an acre of ground. Although it is concerned with an area that runs from the border of Oregon to the border of Mexico — a distance of over 1,000 miles -■- it does not state what uses are appro- priate -- or inappropriate — for any single place anywhere along that coastline. Wnat it rather does is fix some general principles and in the light of those principles directs local agencies to go forward and make a program, subject of course to final review by the State Commission. When the local agencies have done that work, there will be a program, and depending on its form, approval by the Secretary of Commerce may or may not be. appropriate. But until one actually has^ a finished program, one can't tell. The written analysis of the California legislation, in the light of the Federal statute, which I am filing with my Statement here, sets forth the requirements of the Federal statute and compares those requirements with- the California statute in a good deal of detail. In the interest of time, I will refer only to two specific illustrations of this point. Section 305 of the Coastal Zone Management Act states that the Management Program for each coastal State shall include, and I quote, "... inventory and designation of areas of particular concern within the Coastal Zone." No such inventory or designation has been formulated and one has no idea what areas will be included. Again, the same Section requires that the Manage- ment Program of each State shall include, and again I quote: "Broad guidelines on priority of uses in particular areas. . . . " Such guidelines have not been formulated for any area at the present time. The absence of these determinations is critical with respect to the industry for which I speak. Our companies are concerned with the development of petroleum in the Outer Continental Shelf. Approval for the development of particular areas in Federal leases is obtained through the submission of what are called Operating Plans. By the terms of the Coastal Zone Management Act, the operator is required to certify that his Development Plan is "consistent" with the State Coastal Zone Management Program if it affects land or water uses within the Coastal Zone. Until this inventory and these guidelines are prepared, it will be entirely a matter of opinion, indeed of speculation, as to whether a particular offshore development is or is not consistent with the Cali- fornia program. By the terms of the Coastal Zone Management Act, the State is allowed to contest the operator's certifi- cation, and there is a procedure for conciliation and final settlement by the Secretary of Commerce. But two years is a reasonable estimate for the time required to settle each such dispute. To approve the California program in advance of the completion of the actual job of formulating the inventory and the guidelines required by statute leaves the question of consistency entirely up in the air, and would threaten to bring offshore operations and indeed perhaps tanker and pipeline operations to a screaming halt. This is rendered acutely likely because it appears to be the policy of the Executive in California --not the policy of the statute enacted by the Legislature but the policy of the Executive -- to prevent such development totally. This brings me to my second major point, which is that the Environmental impact Statement, prepared to support the proposed action, is totally inadequate both under the National Environmental Policy Act and under the Coastal Zone Management Act. - 2 - A basic deficiency is that the EIS fails totally to consider the probability that California will use its right to veto certifications of consistency by operators within the Coastal Zone and the OCS. It has been the consistent policy of the State of California to oppose all development in the Outer Continental Shelf. Representatives of the State testified against Lease Sale 35, and brought not one but two lawsuits to prevent it. The State's Office of Planning and Research, which appears to speak for the Governor in matters related to off- shore operations, has recently published a draft report on offshore operations to which reference must be made because the final report is not available. At page 37, the report states that OCS leasing and development should not be per- mitted where such development "... would allow violation of standards or further degradation of Southern California air quality. ..." By itself that sounds alright. But it is the position of the State, repeatedly expressed, that offshore operations contribute hydrocarbons to the atmos- phere of the Southern California air basin, and that such hydrocarbons would lead to such degradation. So translated into English, what this says is that OCS leasing and develop- ment should not be permitted offshore of Southern California . Elsewhere in the same report, it is recommended that petroleum sanctuaries be established in which existing leases would be "terminated" around the Channel Islands. Again, it is proposed that offshore areas of shallower water should be "excluded from future lease sales and existing leases terminated. " Cancellation of leases issued in Lease Sale 35 is proposed. When one gets done with all the recom- mendations for termination of leases, there is very little left. The same hostility has been consistently evidenced with respect to other activities which are necessary for petroleum operations. Thus, the State Air Resources Board has thrust upon the Southern California Air Quality Manage- ment District, over its objections, "new source rules" which sharply restrict the loading or unloading of tankers in the Los Angeles Harbor, even though such activities would appear to be necessary for the transportation of Alaskan oil into midwest areas which acutely need it. Thus far, it has not been possible for the partners in the proposed SOHIO pipe- line to reach agreement with the State on conditions that will permit necessary facilities to be constructed for that pipeline. Again, in the Santa Barbara area, it is the announced policy of the State, expressed recently by an affidavit filed - 3 - in pending litigation in the United States District Court, a copy of which is filed herewith/ to eliminate all tanker transportation in the Santa Barbara area . The "new source rules" I have referred to seem to aim at a similar result for Los Angeles, This policy is being followed, in spite of the provisions of the California Coastal Act, which expressly authorizes new and expanded tanker facilities. It needs to be stressed that the environmental effect of these policies is enormous, and almost entirely negative. In the EIS for Lease Sale 35, the oil potential of the nominated areas was estimated by the USGS at 1.5 to 2.7 billion barrels of oil and 2,400 to 4,700 billion cubic feet of gas. Under the policies recently announced by President Carter, coal is the preferred substitute for oil or gas. Substitution of coal for all this oil and gas involves more difficult pollution problems; more mining — probably more strip mining; more rail transportation and trucking; a whole range of environmental consequences of the most serious order. Use of nuclear power or foreign oil presents other problems, none of which are addressed in the EIS. The point is that since this EIS in no way addresses the environmental consequences, given the possibility, indeed high probability, that the State will use its veto power either to seriously impede or totally prevent OCS development, the Statement is grossly inadequate. The same gross defect arises because there is no discussion of the use by the State of its powers to prevent transportation of oil; to deny sites for treatment of oil, and otherwise essentially to prevent the necessary activities of this industry. We are not dealing with speculative policies: the policies of the State are being carried out now . The EIS is inadequate in a vast variety of other ways. It does not, for instance, really contain any descrip- tion of the environment involved at all. Again, there has been considerable experience with the operation of the prede- cessor system which to a very large degree brought many forms of construction to a halt within the Coastal Zone, This had the effect of greatly escalating the value of properties that were developed in the area, a factor which has affected the availability of housing; had an effect on inflation; none of which is really dealt with in any detail. I have here with me the Environmental Impact Report on a single project in the Santa Barbara area. It, by itself, - 4 - is three times the size or more of this effort, A valid EIS must contain a description of the environment involved and provide a thorough and thoughtful discussion of the effect of the proposed action on that environment. This Report, which lumps casually together heavily urbanized areas such as Los Angeles with areas like Mendocino County which are very lightly developed, does not do justice to any of them. One of the reasons that it cannot really do justice to any of them is that because the detailed program for these various areas has not been developed and we are thus back to my first proposition. In the interest of time, I stop here on this topic. Our view is that the EIS is grossly inadequate -- probably the most inadequate we have seen for many years. Far and away the most serious defect is the absence of a discussion of the effect on the national energy situation -- with its environ- mental consequence — if California uses the consistency provision to carry out its present policy of frustrations in OCS development. This brings me to my third basic point. The Federal Coastal Zone Management Act expressly requires that the State Management Program include provision for siting of national energy facilities. The legislative history makes it clear that funds were made available to the States precisely because they were expected to cooperate with respect to offshore oil development. The statute could not be plainer on this topic. Before approving the State program, the Secretary must find that : "The management program provides for adequate consideration of the national interest involved in planning for, and in the siting of, facilities (including energy facilities in, or which significantly affect, such state's coastal zone) which are necessary to meet requirements which are other than local in nature. In the case of such energy facilities, the Secretary shall find that the state has given such consideration to any applicable interstate energy plan or program," (Sec. 306(c) (.8) .) In making a finding on the adequacy of California provision for energy facilities, the Secretary can properly start with the California Coastal Act. The Act is general on - 5 - this topic. One must therefore look at the actual policies carried out by State agencies. As we have already seen, those practices are negative toward energy facilities of national concern. Given a general statute, and practices under that statute, which totally oppose OCS development, as well as other necessary energy facilities, the finding required by the statute cannot be made at this time. Whether it can be made in the future will depend on whether or not there is a change in State practices. I have one further observation. We are aware that, unfortunately, the approval of the California Program by the Secretary is a necessary prerequisite to the making of sub- stantial grants by Federal authority to the State of California We regret that this is so, but given the enormous potential impact of the conformity requirements of the Federal Act, we have no alternative but to oppose approval. We suggest that this problem may be in some degree alleviated by an increase in the size of the grants to the State which are made for planning as opposed to administrative purposes. Because of the limited time available, I stop here. I file herewith a written analysis of the California Coastal Act and practices under it. It is our intention to file a further written critique of the EIS within the time permitted. Thank you for your courtesy. - 6 - MEMORANDUM WITH RESPECT TO THE CALIFORNIA COASTAL ACT OF 1976 AND THE FEDERAL COASTAL ZONE MANAGEMENT ACT McCutchen, Black, Verleger & Shea Philip K. Verleger Ward L. Benshoof May 18, 1977 ■J f! MEMORANDUM WITH RESPECT TO THE CALIFORNIA COASTAL ACT OF 1976 AND THE FEDERAL COASTAL ZONE MANAGEMENT ACT The California Coastal Act of 1976 was not brought into being by the Federal Coastal Zone Management Act. On the contrary/ it came into being as the result of an initiative measure creating a -special commission to draft a coastal program for submission to the California Legislature. That Commission was formed as a result of this initiative, prepared a program, and submitted it in fact to the Legislature. Inevitably, there was a very lively debate when the program was before the Legisla- ture. The bill finally adopted represented a compromise in which many voices had been heard. Industry as well as environ- mentalists were among those whose views were expressed and who had an influence on the final form of the bill including such groups as Coastal Alliance, on the one hand, and petroleum companies, on the other. The legislation adopted did not produce a Coastal Management Program under the Federal Act. The legislation provided essentially that the detailed coastal program itself should be formulated by local governmental agencies, subject to review by the California Coastal Commission provided for in the Act. In our judgment, that course was a wise and prudent one. It is hardly conceivable that the Legislature, in any period of time rationally imaginable, could detail a program for an area a thousand miles long to anywhere from a thousand yards to several miles wide. No criticism is made here of the legislation finally adopted. What is raised here is a different question; i.e. , does the California Act create a Coastal Zone Management Program meeting the special requirements of the Federal Coastal Zone Management Act? The Federal Act was intended to achieve two basic objectives. The first was encouragement of coastal zone planning at the State level. The second was. to provide machin- ery for the integration of State and Federal activities affecting the coastal zone. It is the latter with which we are concerned here. The Federal Act provides that once a State coastal management program has been "approved," then certain "consistency" provisions become applicable. At that point in time, an applicant for a Federal permit which may affect the land-water uses of its coastal zone (including an applicant for approval of exploration, development and produc- tion plans. under Outer Continental Shelf leases) must certify that the permit he seeks conforms to the State coastal zone program. It is the burden of this memorandum that since "approval" of a State Program brings into operation consis- tency requirements, that such "approval" is not permissible until the process of forming a program contemplated by the California Coastal Act of 1976 is completed. The reason, quite simply, is that until that is done, the type of "program" contemplated by Federal legislation does not exist, and there is no standard of measurement by which a Federal permit seeker can certify consistency. There is a second very important reason why it would be improper to approve the California Act as a comprehensive management program. The Federal Act requires specific provision for "adequate consideration of the national interest involved in the siting of facilities necessary to meet requirements which are other than local in-nature." (CZMA, § 306(c)(8).) Such provisions require detail beyond the scope of the California Act and are presumably to be effectively inserted through the local process of planning provided for in the Act. Again, it is our view that "approval" by the Federal authorities is inappropriate until this is accomplished. Deferral of approval has become critical because of indications of hostility, by various state agencies, to energy development required to serve national needs. It cannot be assumed that they will heed these requirements, indeed the contrary is apparent. We take up these matters in detail below. II FEDERAL REQUIREMENTS FOR STATE PROGRAMS The Federal Act contains two basic general types of requirements with respect to State programs. There' are (a) requirements for specific land use regulations and there are (b) requirements for a "process" for further regulations. The requirements with respect to specific land use provisions are of particular concern to us in view of § 30 7 of the Act. Since that section is central, we first set it forth. It says in pertinent part: "After final approval by the Secretary of a state's management program, any appli- cant for a required Federal license or permit to conduct an activity affecting land or water uses in the coastal zone of that state shall provide in the application to the licensing or permitting agency a certifica- tion that the proposed activity complies with the state's approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the state or its designated agency a copy of - 2 - the certification, with all necessary infor- mation and data. Each coastal state shall establish procedures for public notice in the case of all such certifications and, to the extent it deems appropriate, procedures for public hearings in connection therewith. At the earliest practicable time, the state or its designated agency shall notify the Federal agency concerned that the state concurs with or objects to the applicant's certification. If the state or its desig- nated agency fails to - furnish the required notification within six months after receipt of its copy of the applicant's certification, the state's concurrence with the certification shall be conclusively presumed. No license or permit shall be granted by the Federal agency until the state or its designated agency has concurred with the applicant's certification or until, by the state's failure to act, the concur- rence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the applicant, finds, after providing a reasonable opportunity or detailed comments from the Federal agency involved and from the state, that the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security." CZMA, § 307(b) (3) (A) . The 1976 Amendments made the certification of consistency requirement specifically applicable to OCS lessees: "After the management program of any coastal state has been approved by the Secretary under section 306, any person who submits to the Secretary of the Interior any plan for the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) and regulations under such Act shall', with respect to any exploration, development, or production described in such plan and affecting any land use or water use in the coastal zone of such state, attach to such plan a certification that each activity which is described in detail in such plan - 3 - complies with such state's approved manage- ment program and will be carried out in a manner consistent with such program. " CZMA, § 307(b) (3) (B) . The certificate process is of vital concern to the whole development of the Outer Continental Shelf. Any company involved in offshore operations is constantly applying for licenses, permits, submitting exploration, development and operating plans, and the like. In order to make the certification referred to, an offshore operator must check the State Coastal Program and consider the manner in which his operations offshore will affect the uses of land and water within the Coastal Zone. The Federal Act is consistent in that it contains Affirmative provisions directing that the State management program contain essential information for that purpose. The pertinent pro- visions are the following: " (b) The management program for each coastal state shall include each of the following requirements: (2) A definition of what shall constitute permissible land uses and water uses within the coastal zone which have a direct and significant impact on the coastal waters. (3) An inventory and designation of areas of particular concern within the coastal zone . (4) An identification of the means by which the state proposes to exert control over the land uses and water uses referred to in paragraph (2) , including a listing of relevant con- stitutional provisions, laws, regu- lations, and judicial decisions. (5) Broad guidelines on priori- ties of uses in particular areas, including specifically those" uses of lowest priority ." CZMA, § 305(b) (2)-(5) (emphasis added). - 4 - It needs to be stressed that the provisions we have referred to above are to be distinguished from those which require that a State -Program contain a "process" for planning of uses within the Coastal Zone.. We refer to the following: "(7) A definition of the term 'beach' and a planning process for the protection of, and access to, public beaches and other public coastal areas of environmental, recreational, historical, esthetic, ecolo- gical, or cultural value. " (8) A planning process for energy facilities likely to be located in, or which may significantly affect, the coastal zone, including, but not limited to, a process for anticipating and managing the impacts from such facilities. " (9) A planning process for (A) assessing the effects of shoreline erosion (however caused) , and (B) studying and evaluating ways to control, or lessen the impact of, such erosion, and to restore areas adversely affected by such erosion." CZMA, § 305(b) (7)-(9) . Obviously, with the passage of time, State Programs for the use of the Coastal Zone will change. The process sections of the Act deal with such changes. But those sections do not in any way dispense with the need — for consistency certification-- that there must be a State Program to start with—something which contains the "inventory and designation of areas of particular concern" and the "guidelines on priorities of uses in particular areas" in the various portions of the State Coastal Zone so that the applicant for a Federal permit can review those provisions and fairly certify to the' applicable Federal authorities that what he is going to do is not incon- sistent with land-water uses under that program. For there is no way that one can certify that one is consistent with a "process. " We here anticipate the latter portions of this memorandum. But it should be stated that the California Act is a "process" law which, in its essence, directs the local cities and counties for the preparation of the "program" which the Federal Act requires. That process is to be completed sometime after mid- 197 8. That must be done before one can certify that operations on Federal property are or are not "consistent" with it. - 5 - The second very important requirement which every coastal zone management program must meet is the requirement that it contain affirmative provision for the installation of essential energy facilities. The applicable section in the CZMA is § 306 (c) (8) : "Prior to granting approval of a man- agement program submitted by a coastal .State, the Secretary shall find that . . . [t]he management program provides for adequate consideration of the national interest involved in planning for, and in the siting of, facil- ities (including energy facilities in, or which significantly affect, such state's coastal zone) which are necessary to meet requirements which are other than local in nature. In the case of such energy facilities, the Secretary shall find that the state has given such consideration to any applicable interstate energy plan or program. " Applicable regulations describe this section as follows: "This policy requirement is intended to assure that national concerns over facility siting are expressed and dealt with in the development and implementation of State coastal zone management programs . " 40 C.F.R. § 923.15(b) (emphasis added). When one refers to the legislative history behind CZMA, the words of § 306(c) (8) are further reinforced, and the extent of the Congressional concern with adequate energy provisions in State programs becomes apparent. In July, 1976, Congress enacted a series of amend- ments to the Coastal Zone Management Act of 1972 (16 U.S.C. § 1451) which both reaffirmed national concern over production of energy through OCS development and provided a means for its achievement. The Conference Report on the 1976 Amendments described their purpose as follows: "The purpose of the conference substi- tute is to improve and strengthen coastal zone management in the United States and to coordinate and further the objectives of national energy policy by directing the Secretary of Commerce to administer and - 6 - coordinate, as part of the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.) (hereinafter referred to as 'the 1972 Act'), a coastal energy impact pro- gram. " Statement of The Committee of Confer- ence, 7 U.S. Cong, and Admin. News 2773 (1976) . The Report continued: "The 1972 Act was enacted before the advent of the current and continuing energy crisis; i.e., before attainment of a greater degree of energy self-sufficiency became a recognized national objective of the highest importance and priority. The conference substitute follows both the Senate bill and the House amendment in amending the 1972 Act to encourage new or expanded oil and natural gas production in an orderly manner from the Nation's outer Continental Shelf (OCS) by providing for financial assistance to meet state and local needs resulting from specified new or expanded energy activity in or affect- ing the coastal zone. Id . (emphasis added) . The goal of the Congress was plainly stated--"to encourage new or expanded oil and natural gas production in an orderly manner from the Nation's outer Continental Shelf." Delay in reaching this goal was of foremost concern to the Congress. "The conferees believe . . . that there is a real possibility of delay or disruption in Federal plans for needed new and expanded OCS oil and gas production unless coastal states and coastal communities are assured of the means of coping with and ameliorating the impacts from such activities. ..." Id. Accordingly, to enlist the cooperation of the States in' expe- diting OCS development Congress provided in the 19 76 Amendments for an energy "impact" program to compensate coastal states should offshore development lead to any adverse impact. The significance of the impact program and the 1976 Amendments in - 7 - general was well summarized by Representative Ruppe in the final House debates: "When Congress passed the original act, we had not yet experienced an energy crisis. The 1973 oil embargo forced a recognition that an alteration in our national energy policy was mandatory. In an effort to implement a more valid energy policy, we could not but realize there should be an increased demand for the oil and gas resources which are available beneath our offshore areas. Individual coastal states are ill-equipped to cope with inherent impacts as we pursue offshore leasing programs, deepwater ports, and additional energy facilities. We cannot hope to secure a policy of energy self-sufficiency without these offshore deposits , and we surely cannot expect to retain them without smooth cooperation between the Federal Government, and State and local governments. "The coastal energy impact program . . . in section 308 of the conference report assures that such cooperation will be achieved in a flexible and responsible Cong. Record, July 30, 1976, at H 7076 (emphasis added)'. The legislative history is all quite clear. By the 1976 Amendments Congress sought to avoid the "real possibility of delay or disruption in Federal plans for needed new and expanded OCS oil and gas production. ..." Ill DETAILED CONSIDERATION OF THE CALIFORNIA COASTAL ACT OF 1976 AND THE FEDERAL REQUIREMENTS FOR AN ACCEPTABLE COASTAL MANAGEMENT PROGRAM One can begin with the requirement of § 305(b) (2) of CZMA which provides that: - 8 - "The management program for each coastal state shall include each of the following requirements : "(21 A definition of what shall constitute permissible land and water uses within the coastal zone which have a direct and significant impact on the coastal waters." To meet that requirement a program must state what uses which have an impact upon coastal waters are permissible. The California Act effectively defers that question to the detailed planning process coming down the road. As close as one comes in the Act is the rule on industrial development in the coastal zone in Cal . Pub. Res. Code § 30260: "Coastal-dependent industrial facilities shall be encouraged to locate or expand within existing sites and shall be per- mitted reasonable long-term growth where consistent with this division. " But that section does not state that such uses are or are not "permissible" within any particular part of the coastal zone. Section 305(b) (3) requires that a State management program include " [a]n inventory and designation of areas of particular concern within the coastal zone." (16 U.S.C. § 1454(b) (3).) The Coastal Commission apparently will promul- gate such a list pursuant to Pub. Res. Code § 30502, which calls for the designation of "sensitive coastal resource areas." That Section says, in part: " (a) The commission, in consultation with affected local governments and the appropriate regional commissions, shall, not later than September 1, 1977, after public hearing, designate sensitive coastal resource areas within the coastal zone where the protection of coastal resources, and public access requires, in addition to the review and approval of zoning ordinances, and the review and approval by the regional commissions and commission of other imple- menting actions. "(b) The designation of each' sensitive coastal resource area shall be based upon - 9 - a separate report prepared and adopted by the commission which shall contain all of the following: " (1) A description of the coastal resources to be protected and the reasons why the area has been designated as a sensitive coastal resource area. " (2) A specific determination that the designated area is of regional or statewide significance. " (3) A specific list of significant adverse impacts that could result from development where zoning regulations alone may not adequately protect coastal resources or access. "(4) A map of the area indicating its size and location. " Since the required inventory does not exist the California program cannot be validly considered by the Secretary. Section 305(b) (4) of CZMA requires that an acceptable management program further include: "an identification of the means by which the state proposes to exert control over the land and water uses referred to in paragraph (2) of this subsection, includ- ing a listing of relevant constitutional provisions, legislative enactments, regu- lations, and judicial decisions." Indeed, this requirement demonstrates clearly that the bare statute itself cannot constitute the necessary coastal program, for CZMA calls for, among other authority, a listing of "regulations" relating to coastal uses. Regulations give specific form to general statutory language and are recognized by CZMA as being an essential ingredient of a coastal manage- ment program. The Secretary should not consider the California application until those agencies given regulatory authority under the Coastal Act have in fact finally exercised that authority. Such action has not yet been taken by any agency. Until such regulations are all before the Secretary, the requirements of § 305(b) (4) will not yet be met. Whether there will then be a proper program will depend on what those agencies do. - 10 - Similarly, CZMA § 305(b)(5) requires that management programs, include: "Broad guidelines, on priorities of uses in particular areas , including specifi- cally those uses of lowest priority." (Emphasis added.) The relevant federal regulation interprets this statutory requirement to impose upon States the duty to set specific priorities in their management programs, interfacing the State's list of "permissible land and water uses" with the State's "inventory and designation of specific areas of par- ticular concern." The regulation, in pertinent part, reads: "The management program shall include broad policies or guidelines governing the rela- tive priorities which will be accorded in particular areas to at least those permissible land and water uses identified pursuant to § 923.12. The priorities will be based upon an analysis of State and local needs as well as the effect of the uses of the area. Uses of lowest priority will be specifi- cally stated for each type of area ." 15 C.F.R. § 923.14(a)) (emphasis added) . A review of the California Act shows that such a classification of priorities is not made in the statute. The California Coastal Zone is an area approximately a thousand miles long; it extends three miles offshore and inland varying distances for generally at least a thousand yards. The California statute does not specify any priorities for use of any portion of that area of 4,0Q0 square miles or so. On the contrary, as we have seen, it expressly directs that that inventory be prepared in the future. In the same way, detailed planning is relegated to local government for the future. That, as we have said, makes good sense, but it also must necessarily defer consideration of approval until we know what is done by local governments and make approval depending on what they do. The remainder of the law essentially consists of very broad guidelines to the local Commissions in carrying out their functions. Sections 3022Q through 30224 encourage the use of the Coastal Zone in its entirety for recreational purposes. Sections 30230 through 30236 encourage the use of the entire area for fishing purposes. Sections 30260 through 30264 suggest that industrial development should to the extent "feasible" be confined to areas now utilized for that purpose, but really - 11 - fix no priorities for other areas nor do they define what areas are to be so considered. They say: "Coastal-dependent industrial facili- ties shall be encouraged to locate or expand within existing sites and shall be permitted reasonable long-term growth where consistent with this division. However, where new or expanded coastal-dependent industrial facili- ties cannot feasibly be accommodated consistent with other policies of this division, they may nonetheless be permitted in accordance with this section and Sections 30261 and 30262 if (1) alternative locations are infeasible, or more environmentally damaging; (2) to do otherwise would adversely affect the public welfare; and (3) adverse environmental effects are mitigated to the maximum extent feasible." Pub. Res. Code § 30260. It is impossible to use these provisions for the certification required by CZMA § 307. To illustrate, there are a number of tanker terminals scattered along the California coast from Los Angeles up into Ventura and Santa Barbara Counties. Is that entire area to be considered as an existing area for such uses? If not, what portions are to be considered? Is development to be considered as frozen to the exact sites where facilities now are? Again, dotted up that portion of the coast, there are a number of facilities for oil development within State waters and also within Federal waters. The same questions arise. Given that level of uncertainty, how is an applicant for a Federal permit either to certify or not to certify that his program is consistent with the State Program? CZMA requires much more. " It is clear . . . that Congress intended management programs to be comprehensive and that a State must consider all subject areas which are pertinent to the particular circumstances which prevail in the State. "The Secretary encourages the States to develop objectives toward which progress can be measured and will review program submissions in this light. While it is - 12 - recognized that many essential coastal zone management objectives are not quanti- fiable (e.g. public aspirations, 'quality of life 1 ). Others are, and should be set forth in measurable terms where feasible (e.g. shore erosion, beach access, recre- ational demand, energy facility require- ments ) . " Official Comments, Coastal Zone Manage- • ment Approval Regulations, 40 Fed. Reg. 1683 at 1685, January 9, 1975 (emphasis added). It is apparent that the California Act was not intended to reach this required degree of specificity. The same is true when one turns to examine the question of provision for energy facilities . We have already seen that the Federal Act is extremely explicit in this connection and indeed that a principal purpose of the 1976 Amendments was to take care of these facilities and specifically to encourage expedited development of OCS resources But there is no provision in the California Act that recognizes this national interest. The provisions in the Act that deal with energy development and related facilities are contained in the Article entitled "Industrial Development." There are four applicable sections. Section 30260, which we quoted just above (page 13 supra ) , states the Act's general policy of confining coastal development to existing sites. Section 30261 discourages use of existing tanker terminals by single companies and declares that only one LNG terminal shall be located in the coastal zone with more allowed only when: "... engineering and operational practices can eliminate any significant risk to life due to accident or until guaranteed supplies of liquefied natural gas and distribution system dependence on liquefied natural gas are substantial enough that an interruption of service would cause substantial public harm. " Pub. Res. Code § 30261(b). Section 30262 states that oil and gas development shall be permitted in accordance with the policies of § 30260 if various conditions are met. - 13 - "Oil and gas development shall be per- mitted in accordance with Section 30260, if the following conditions are met: (a) The development is performed safely and consistent with the geologic conditions of the well site. (bl New or expanded facilities related to such development are consolidated, to the maximum extent feasible and legally permis- sible, unless consolidation will have adverse environmental consequences and will not significantly reduce the number of producing wells, support facilities, or sites required to produce the reservoir economically and with minimal environmental impacts. (c) Environmentally safe and feasible subsea completions are used when drilling platforms or islands would substantially degrade coastal visual qualities unless use of such structures will result in substan- tially less environmental risks. (d) Platforms or islands will not be sited where a substantial hazard to vessel traffic might result from the facility or related operations, determined in consulta- tion with the United States Coast Guard and the Army Corps of Engineers. (e) Such development will not cause or contribute to subsidence hazards unless it is determined that repressuring opera- tions will prevent damage from such subsidence. (f) With respect to new facilities, all oilfield brines are reinjected into oil-producing zones unless the Division of Oil and Gas of the Department of Conser- vation determines to do so would adversely affect the production of the reservoirs and unless injection into other subsurface zones will reduce environment risks. Exceptions to reinjections will be granted consistent with the Ocean Waters Discharge Plan of the State Water Resources Control Board and where adequate provision is made for the elimina- tion of petroleum odors and water quality problems . - 14 - "Where appropriate, monitoring programs to record land surface and near-shore ocean floor movements shall be initiated in loca- tions of new large-scale fluid extraction on land or near shore before operations begin and shall continue until surface con- ditions have stabilized. Costs of monitoring and mitigation programs shall be borne by liquid and gas extraction operators." Section 3026 3 conditions the location of refineries in the coastal zone upon several criteria. The section reads: 11 (a) New or expanded refineries or petrochemical facilities not otherwise con- sistent with the provisions of this division shall be permitted if (1) alternative locations are not feasible or are more environmentally damaging; (2) adverse environmental effects are mitigated to the maximum extent feasible; (3) it is found that not permitting such development would adversely affect the public welfare; (4) the facility is not located in a highly scenic or seismically hazardous area, on any of the Channel Islands, or within or contiguous to environmentally sensitive areas; and ('5) the facility is sited so as to provide a sufficient buffer area to minimize adverse impacts on sur- rounding property. (b) In addition to meeting all applic- able air quality standards, new or expanded refineries or petrochemical facilities shall be permitted in areas designated as air quality maintenance areas by the State Air Resources Board and in areas where coastal resources would be adversely affected only if the negative impacts of the project upon air quality are offset by reductions in gaseous emissions in the area by the users of the fuels, or, in the case of an expansion of an existing site, total site emission levels, and site levels for each emission type for which national or state ambient air quality standards have been established do not increase. Cc) New or expanded refineries or petrochemical facilities shall minimize - 15 - the need for once-through cooling by using air cooling to the maximum extent feasible and by using treated waste waters from inplant processes where feasible." Finally, § 30264 deals with electric generating plants and provides that such facilities cannot be located in the coastal zone unless the State Energy Commission determines that the coastal site has "greater relative merit" than "available alternative sites." , / On November 10, 1976, the California Energy Commis- sion— issued a draft report on the topic of liquefied natural gas and addressed, among other issues, the lack of an ascer- tainable State policy on LNG facility siting. In discussing this problem, the Commission made a most revealing observation as to the proper role of California's Coastal Act. It said: "The only formal state policy on LNG facility siting is expressed in the California Coastal Act of 1976. The Coastal Act is not, how- ever, sufficient as a state policy mechanism: interpretation of the Coastal Act's general criteria will only become known in and through the application process . ..." Draft Biennial Report, "Fossil Fuel Issues: Liquefied Natural Gas," California Energy Resources Conservation and Develop- ment Commission, November 10, 1976, p. i (emphasis added) . In specifically addressing the Coastal Act's provisions govern- ing LNG import terminal siting (Pub. Res . Code § 30260-61), the Commission summed up its objections as follows: 1/ The California Energy Resources Conservation and Development Commission is designated by law as the principal agency within the State government responsible for planning statewide energy policy (Pub. Res . Code § 25005.5). The Commission is responsible for transmitting its recommenda- tions to the Governor and Legislature biennially in a "comprehensive report." (Pub. Res . Code § 25309.) The first of such biennial reports consists of several volumes each relating to a specific topic and released in a draft version during the months of October and November, 1976. Hearings have been held and a final report is being prepared with the separate volumes being released -as they are completed. The sections of the report which this memorandum quote are still only in draft form. - 16 - " In other words, the policy, as expressed in the Coastal Act, is uncertain, and the timing is inopportune ; therefore the Coastal Act while a necessary element of the total regulatory process, is not sufficient in itself as a State policy mechanism. " Id . at 1-2 (emphasis added) . Thus, the State Energy Commission views the provisions regarding LNG terminals in § 30261 as "uncertain" and "not sufficient as a state policy mechanism." Since, as we have discussed, the Act was never intended to establish a detailed management program, identical comments could be made on the other three energy sections. Nowhere, for example, do we find a provision that says that pipelines through the Coastal Zone to bring oil ashore from OCS operations shall be permitted. Nowhere does one find a provision that oil operations shall be allowed in the State waters, except in the immediate vicinity of public beaches or other defined facilities which might be thought to be inconsistent therewith. All that is essentially left to later definition. IV OTHER POLICIES ADOPTED BY CALIFORNIA WHICH MUST BE CONSIDERED AS PART OF THE COASTAL PROGRAM CONFLICT WITH NATIONAL ENERGY POLICY That California has, at times, adopted positions on energy development substantially at odds with national energy policy is a fact widely recognized. Indeed, in its biennial report to the Governor and Legislature, the California Energy Commission acknowledged this historical conflict. In discussing future energy prospects, the Commission stated: " Federal policies of nuclear development, movement of Alaskan and Elk Hills oil eastward, development of offshore petroleum resources , and allocation of gas to other regions — conflict with California air quality and coastal protection policies and mistrust of federal nuclear fuel cycle management. " Draft Energy Policy Overview Report, California Energy Resources Conservation and Development Commission, October 26, 1976, p. 12 (emphasis added). - 17 - Earlier in the same report, the Energy Commission listed problems facing energy projects in California, including what the Commission described as a climate of " Regulatory Uncertainty . " "... Air Pollution Control Districts, Air Resources Board, Coastal Commission, Environmental Protection Agency, State Lands Commission, etc., many of the pro- jects have received disapprovals or face strict conditions. California's environ- mental system is large and aggressive. Projects with any adverse impacts must "^ass muster' through many agencies ." Id . at 11 (emphasis added) . Thus, while the CZMA seeks to promote the development of offshore resources, the State of California's policies are described by its own Energy Commission as being in conflict with that goal. Several notable examples can be cited. A. Opposition To PCS Lease Sales . The legislative history discussed above establishes that, in enacting the 1976 CZMA Amendments to expedite OCS development, Congress was expressly concerned with the "real possibility of delay or disruption in Federal plans for needed new and expanded OCS oil and gas production. ..." (Conference Committee Report, supra . ) As to California, this concern had a very real founda- tion. On August 15, 1974, the State of California, the Cali- fornia Coastal Commission and others filed suit in federal district court in Los Angeles against the Secretary of Interior, seeking to enjoin California OCS Lease Sale 35 on the alleged basis that environmental considerations had not been adequately weighed prior to decision to hold that sale. On November 17, 1975, the Court issued its memorandum opinion, denying the requested injunction and specifically finding that the Secretary's decision was in "full compliance" with the requirements of NEPA. California v. Morton , 404 F.Supp. 26, 33 (1975). On November 21, judgment was entered accordingly. At that time, appellate review was available, but California chose a different approach — it attempted to relitigate the case on the East Coast, in what it apparently hoped would be a more favorable forum. Accordingly, on the very day judgment was entered in Morton , the State filed a second action (" California v. Kleppe ) in the District of Columbia, challenging the same OCS sale. That strategy, however, proved fruitless. The State's case was sent back to California where it belonged, and on July -19, 1976, the federal court in Los Angeles granted a motion to dismiss on - 18 - the grounds that the State was attempting to make the same challenges to the California sale in the second case that had already been determined adversely to it in the first. The State is presently appealing both the Morton and Kleppe decisions . California has also entered its opposition squarely against proposed Lease Sale 48. On February 11, 1977, the California Governor's Office of Planning and Research issued a draft report of its OCS Project Task Force entitled "OFFSHORE OIL AND GAS DEVELOPMENT: Southern California." In that document, the Governor's Task Force concluded that since California would not need oil from Lease Sale 48 "before 1990 at the earliest" that the Sale should be opposed. This opposition, it was advised, might force Congress and the Department of Interior to adopt California's views on energy development. Thus, the Governor's Task Force recommended: "California should oppose Lease Sale #4 8 pending an enactment of amend- ments to the OCS Lands Act to provide a larger state and local role in leasing and development decisions or a clear commitment by the Interior Department to fairly consider state and local concerns and release environmental and oil and gas resource information for state and local government's use." Governor's OCS Task Force Draft Report, at p. 10 3. B. Opposition To Approved OCS Development Plans — The Santa Ynez Unit . California has not only opposed new OCS lease sales but has also been very active in attempting to block one particular approved OCS development plan--the Santa Ynez Unit, a group of 17 leases in the Santa Barbara Channel where Exxon Corporation has been designated unit operator. Recent efforts in this area began early in 1975 when the California State Lands Commission, having only a month previously granted Exxon a lease over State lands to bring oil and gas ashore, reversed its position and joined its new Chairman in a lawsuit seeking to revoke Exxon's lease and prevent the construction of oil and gas pipelines to the shore ( Cory v. Exxon , Sacramento Superior Court No. 252 295) . The Commission was unsuccessful at trial but currently maintains an appeal--still attempting to revoke the lease. - 19 - The next California agency to enter the picture and attempt to block Santa Ynez development was the State Coastal Zone Conservation Commission- -the predecessor body to the very agency which will administer California's Coastal Act of 1976. Notwithstanding the fact that Exxon's project to bring oil and gas ashore had been approved by a special Santa Barbara County referendum and a subsequent vote of the Regional Coastal Commission, the State Commission interjected itself and imposed new "conditions" upon Exxon's access to the shore which effectively threw up a stone wall. At the same time, while the State Coastal Commission was attempting--through an extraordinary use of its permit power--to block OCS production from coming ashore, it took further steps to attempt to stop processing of the oil offshore First, it appeared as amicus curiae on appeal in support of an organization called Get Oil Out! --" GOO " — in a suit where appellants seek to enjoin offshore processing of Santa Ynez oil ( GOO v. Exxon , appeal pending, U.S. Court of Appeals, Ninth Circuit No. 75-3635) . Finally, to make its efforts complete, the Coastal Commission has filed a lawsuit of its own with the same objective as the GOO people — suing both the Secretary of Interior and Exxon ( California v. Kleppe , No. 76-3406 AAH, United States District Court, Central District of California) . Thus, the Coastal Commission and the State Lands Commission seek, on one hand, to block the oil from coming ashore and, at the same time, the Coastal Commission sues to block the oil from being processed offshore on the theory that it would be preferable to bring the oil ashore ! ( California v. Kleppe . ) The effect of these concerted efforts is to attempt to stop development altogether. The Governor's OCS Task Force has also made recommend- ations in this area and, predictably, has joined forces with those opposed to development. Specifically, with Exxon blocked by the Coastal Commission from coming ashore, the Governor's Task Force recommends that Exxon be blocked offshore as well: " Santa Ynez Recommendations : "9. Withdraw Exxon's Offshore Alternative . The Department of Interior should withdraw its approval of Exxon's offshore alternative pending resolution of the court action brought by the State Attorney General and the California Coastal Commission against the Department of Interior and Exxon. " Governor's OCS Task Force Draft Report, at p. 83. - 20 - C. Impact Of California's New Source Review Upon Energy Development . Another example of the inconsistency between the policies followed by California and the Congres- sional intent behind CZMA is the State's use of excessively stringent air pollution regulation as a means to both restrict new energy development and to also prohibit unloading in California of. Alaskan crude. We refer particularly to new source review rules (criteria which new development must meet before construction is permitted) promulgated by the California Air Resources Board (CARB) . While a detailed discussion of these rules would go well beyond the scope of this memorandum, their impact upon energy facilities is highly pertinent and must be recognized by the Secretary as California's Coastal "Program" is reviewed. Indeed, California's new source rules have particular significance here, for by specific direction of CZMA, State air pollution control "requirements" seem to be automatically made a part of that State's management program. See CZMA § 307(f). And, while we doubt this is a tenable position, it might be argued by some that the consistency provisions of CZMA would require an OCS operation to meet such State requirements. Accordingly, it is necessary that one consider the impact of California's regulatory approach and the extent to which it conflicts with the goals of CZMA. The problem is not with the concept of new source review but rather that the particular criteria developed by CARB are virtually impossible for any new energy facility to meet. A representative example are the new source rules which CARB has required the South Coast Air Quality Management District to enforce and which would apply, if valid, to the coastal zone of Los Angeles and Orange Counties. 2/ The rules contain two hurdles for new sources. First, we quote 213(b) (1) "The Air Pollution Control Officer shall deny a permit to construct for any unit or units constituting a new stationary source if such source will emit more than 15 pounds per hour or 150 pounds per day of nitrogen oxides, organic gases, or any contaminant for which there is a state or national ambi- ent air quality standard (except carbon monoxide, for which the limits are 150 pounds per hour and 1500 pounds per day) unless the applicant shows that the new source is constructed using best available control technology." 2/ Identical or very similar rules have been adopted for other coastal areas in the state. - 21 - Thus, a source cannot emit more than 15 pounds per hour or 150 pounds per day unless it uses what CARB determines to be "best available technology." But that doesn't even get one off the hook, for, if after the best available technology is applied emissions exceed 2 5 pounds per hour or 250 pounds per day, permission can still be denied. We quote Rule 213(c) (1) : "The Air Pollution Control Officer shall deny a permit to construct for any unit or units constituting a new stationary source if such source will emit more than 25 pounds per hour or 250 pounds per day of nitrogen oxides, organic gases, or any air contaminant for which there is a state or national ambient air quality standard (except carbon monoxide, for which the limits are 250 pounds per hour and 2500 pounds per day) , or which is a precursor of any such air contaminant, unless he determines that the emissions from the new source will not cause a violation' of, or will not interfere with the attainment or maintenance of, the state or national ambient air quality standard for that same contaminant (or, in the case of a precursor, for the contaminant to which the precursor contributes) . " To appreciate how completely these rules threaten to shut development down, one needs to understand that the 250 pounds per day criteria could very likely be exceeded by just the N0 X emissions from one single, continuously operating industrial generator. The production and processing of energy requires energy. Equipment and facilities of all sorts are needed, and during this process emissions are created. While these emissions can be controlled to a certain extent, the rules of the California Air Resources Board appear to demand the impossible. The usefulness of this regulatory approach in pro- viding a means to completely halt. OCS development or— at the very least — to dictate its progress, has not been lost on California officials. At the hearings on the proposed rules, California's chief air pollution officer, Mr. Thomas Quinn, stated: "I think also we should note that this particular regulation is going to have the effect of firmly putting California in the driver's seat in the development o-f oil on the Outer Continental Shelf and the handling of crude oil coming in from Alaska. - 22 - "When this rule is in effect it is clearly go: ing tc > give the ! State of California authority to determine how oil is going to be handled here in Cal ifornia and is going to give us an effective veto over plans that the oil companies might unilaterally embark on without this rule. "And also I would suspect it is going to now force the Department of the Interior to pay attention to the legitimate concerns of California and come up with plans that meet this rule. " Transcript of Proceedings before State of California Air Resources Board, October 27 and 28, 1975, at 221-22 (emphasis added). The Governor's OCS Task Force has similarly recommended that the state's territorial jurisdiction be disregarded and has suggested that the Air Resources Board reach out beyond the three-mile limit to control OCS production: "The California ARB and coastal APCDs should assert jurisdiction over OCS operations outside the three-mile limit and adopt standards, permit procedures, and review processes necessary to achieve the Clean Air Act's goal of assuring the achievement and maintenance of ambient air quality standards." Governor's OCS Task Force Draft Report, at p. 37. The official California position is apparent. The State is attempting, by means of regulation, to thrust itself into the "driver's seat in the development of oil on the outer Continental Shelf and the handling of crude oil coming in from Alaska." California seeks "effective veto" over OCS develop- ment and plans to "force" the Interior Department to adopt its views . This process is already under way, and one of the first targets of California's "veto" is a project of Standard Oil of Ohio (SOHIO) to unload Alaskan crude oil at Long Beach, California, for transportation via pipeline to various points in the United States. In a recent letter to Frank Zarb, former Federal Energy Administrator, Mr. Quinn, having previously labeled the SOHIO project "unacceptable," advised the national government that California's new source rules "would seem to - 23 - prohibit construction" of the contemplated terminal. (BNA, Environment Reporter "Current Developments," p. 949 (October 29, 1976).) The federal government, in turn, has warned that if the SOHIO project is blocked, California "would disrupt the welfare of all the States." (Remarks of FEA Deputy Admini- strator John A. Hill, Id. ) D. Legislation Preventing PCS Pipelines From Crossing State Lands . If OCS production is to be brought ashore by pipeline, it obviously must cross State lands. The State of California, however, in August of 1975, enacted legislation prohibiting any pipeline from being constructed across State offshore lands. The law states: "No person shall construct, expand, place, or locate any oil or gas pipeline or associated facilities for the transpor- tation of oil or gas from an offshore oil or gas extraction operation on or across tidelands or submerged lands within the permit area of the coastal zone as defined in Section 27104, unless such project has been permitted or exempted by a regional coastal zone conservation commission and if appealed, by the California Coastal Zone Conservation Commission previous to the enactment of this statute, until either implementation by the Legislature of the California Coastal Zone Conservation Plan prepared pursuant to Section 27300 or December 31, 1977, whichever occurs first." Pub. Res. Code § 25450. The legislative finding pursuant to which this statute was adopted reveals quite clearly the rather substantial differ- ences between federal energy policy and that of California. "The Legislature hereby finds and declares that the need to develop petroleum on outer continental shelf lands off the coast of California and the need for addi- tional development on state offshore lands has not been demonstrated by reliable and independent data." Calif. Stats. 1975 Ch. 458 § 6. - 24 - Thus, while Congress, through, the 1976 Amendments to CZMA, has declared that the national interest requires expedited OCS development, the State of California has expressly found that these federal concerns are not supported by "reliable and independent data." Legislation is therefore passed to prevent development by blocking the pipelines. The record is thus extremely clear. Over recent years, California's energy policy has often been directly at odds with that which the Federal government has determined is necessary for the national interest. This history makes it all the more imperative that Federal review wait until a specific coastal program containing provisions consistent with national energy policy is developed before approving California's "Program." Otherwise, if the Secretary of Commerce approves California's Act in its present form, there is the danger that unwitting endorsement may be given to a program which, when finally revealed, may very well be totally inconsistent with the spirit and letter of CZMA. This means that the Secretary must at least wait until the implementation procedures under California's Act have been carried out. V THE DETAILED PROGRAM FOR CREATING, IN THE FUTURE, A CALIFORNIA COASTAL MANAGEMENT PROGRAM The draft report of the California Energy Commission on LNG facility siting which we quoted at the outset of this discussion (see pp. 16-18, supra ) noted specifically that the Coastal Act's general statements did not, in themselves, contain sufficient detail to establish a definite policy mechanism. Stated the Commission: " [I] nterpretation of the Coastal Act's general criteria will only become known £n~ and through the application process . • • • Draft Report, supra , at i (emphasis added) . And while these comments were concerned with the particular issue of LNG facility siting, they are just as true with respect to the Act as a whole. The California Coastal Act consists of very general criteria without any indication as to what direction this State's Coastal program will actually take. As the Energy Commission recognized with respect to LNG terminal siting, this cannot be known until the Act is implemented. Only then will an ascertainable program exist. - 25 - That the statements of "policy" that comprise the California Coastal Act of 1976 do not constitute an actual coastal management program is recognized by the Act itself. Chapter 6 thereof, entitled "Implementation," provides for the future development of coastal programs under the super- vision of a State Coastal Commission. It provides, in part "Each local government lying, in whole or in part, within the coastal zone shall prepare a local coastal program for that portion of the coastal zone within its juris- diction. " Pub. Res. Code § 30500(a). The law further provides that the State Coastal Commission establish procedures for approving coastal programs: "The commission shall, within 90 days after January 1, 1977, adopt, after public hearing, procedures for the preparation, submission, approval, appeal, certification, and amendment of any local coastal program, including, but not limited to, all of the following : (a) A common methodology, for the preparation of, and the determination of the scope of, the local coastal programs, taking into account the fact that local governments have differing needs and characteristics . (b) A schedule for the processing of all local coastal programs and specific guidelines to be followed by each regional commission in establishing, within 30 days after the commission has adopted such guidelines, its own schedule for processing local coastal programs within its region; however, in no event shall a local coastal program that is prepared by a local govern- ment be required to be submitted to any regional commission prior to July 1, 1978, or later than January 1, 1980. Local coastal programs or portions thereof, prepared by the commission shall be completed not later than July 1, 1980, and certified not later than December 1, 1980. - 26 - (c) Recommended uses that are of more than local importance that should be considered in the preparation of local coastal programs. Such uses may be listed generally or the commission may, from time to time, recommend specific uses for con- sideration by any local government." Pub. Res. Code § 30501. Accordingly, following the express provisions of the statute, it will not be until mid-1978 at the earliest that a coastal program in California will begin taking definite shape. And after that there is a certification process that must be gone through before programs are finalized. To this point, we have just discussed implementation insofar as local government input is concerned. The Act also provides, however, that various designated State agencies in addition to the Coastal Commission shall also play a role in the development of California's coastal management program. (Pub. Res. Code §§ 30410-18.) Thus, the Department of Fish and Game is instructed to study and identify those degraded coastal wetland areas which can be restored (§ 30411) . The State Air Resources Board is asked to "recommend" ways in which actions of the Coastal Commission "can complement or assist in the imple- mentation of established air quality programs." (§ 30414(b).) The Director of the Office of Planning and Research is directed to "review the policies" of the Act and to recommend to the Governor and Legislature whatever procedures are necessary "to better achieve the goals and policies" set forth in the statute. (§ 30415.) The State Lands Commission is requested to "review" and "comment on" any proposed local coastal program (§ 30416) . The outcome of all these different efforts will lend further definition to California's coastal policy and therefore would constitute a necessary ingredient to any informed evaluation under § 306 of CZMA as to the adequacy of California's management program. VI CONCLUSION The Secretary should wait until the California coastal program is fully disclosed. Approval should be withheld until the Coastal Commission, local governments and other entities designated by the Coastal Act to formulate "programs" have, in fact, done that job. A stamp of approval cannot be placed upon California's Coastal Act, for the essential reason that such action would be giving endorsement - 27 - to a program as yet undeveloped and which, when finally revealed, might very well be completely inconsistent with the spirit and letter of CZMA. DATED: May 18, 1977. McCUTCHEN, BLACK, VERLEGER & SHEA - 28 - McCUTCHEN, BLACK. VERLEGER 5. SHEA COUNSELORS AT LAW THIRTIETH FLOOR 3435 WILSHIRE BOULEVARD LOS ANGELES, CALIFORNIA 90010 TELEPHONE (213) 381-3411 TELEX: 698261 June 2, 1977 Mr. Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street, N.W. Washington, D. C. 2 0235 Re: Western Oil & Gas Association - Supplementary Comments on the Draft Environmental Impact Statement Regarding the State of California Coastal Management Program Dear Mr. Dehart: Enclosed herewith, as we recently discussed by telephone, supplementary materials commenting on the DEIS prepared by the Office of Coastal Zone Management and the California Coastal Commission regarding the State of Cali- fornia Coastal Management Program. We thank you for the opportunity to submit these comments after the deadline. They are submitted in the hope that you will find them helpful and constructive. Since the State of California has been a leader in the development of coastal management programs, it seems likely that your Agency's actions with respect to its program will set a precedent for the handling of programs submitted by other states. Consequently, we believe that the resolu- tion of difficult questions with respect to the California program will provide valuable guidance to other states, the Agency, and interested parties alike with respect to other program submissions. Consequently, we have attempted to be thorough in our analysis. We look forward to the opportunity to meet with you and your colleagues on June 10th. 5lhcere/Ly, / 1 RoWt K. Tfrrede 'i Of McCUTCHEN, BLACK, VERLEGER & SHEA Enclosure SUPPLEMENTAL MEMORANDUM WITH RESPECT TO THE CALIFORNIA COASTAL ACT OF 1976 AND THE FEDERAL COASTAL ZONE MANAGEMENT ACT SUBMITTED BY THE WESTERN OIL & GAS ASSOCIATION This memorandum supplements the statement of the Western Oil & Gas Association made at the May 19th hearings in Los Angeles on the Draft Environmental Impact Statement (hereafter DEIS) on the State of California Coastal Management Program and the memorandum submitted by the Association at that time.l/ The memorandum previously submitted discusses in some detail the fact that there is no California coastal "program" which addresses our national policy of attaining adequate energy supplies or deals properly with the statutory require- ment that such plans provide "adequate consideration of the national interest involved in planning for, and in the siting of, facilities (including energy facilities in, or which significantly affect . . . [the] coastal zone) which are necessary to meet requirements which are other than local in nature." (CZMA § 306 (c) (8) . ) 2/ Because federal regulations designate the Environmental Impact Statement as the basic action document for evaluating coastal management programs submitted for § 306 approval, and because action on the California program is clearly major 1/ Memorandum with Respect to the California Coastal Act of 1976 and the Federal Coastal Zone Management Act, May 18/ 1977. 2/ Coastal Zone Management Act, 16 U.S.C. 1451 et seq . , cited hereafter as "CZMA". federal action significantly affecting the quality of the human environment^/ it also is necessary to assess the sufficiency of the DEIS in terms of the requirements of the National Environmental Policy Act. 4/ The thrust of this memorandum is that the failure of the DEIS to deal meaningfully with the economic, social, and environmental impacts of the California program in terms of national energy needs or energy facility siting renders it inadequate under NEPA, as well as under the CZMA. STATUTORY BACKGROUND When the Coastal Zone Management Act was originally adopted in 1972, Congress found, inter alia , that "state and local institutional arrangements for planning and regulating land and water uses in [coastal] areas [were] inadequate." (CZMA § 302(g).) Congress further concluded that the "key" to solving this deficiency was to assist the states "... in developing land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance." (Id. § 302(h).) Subsequent to the Act's passage, the nation experi- enced the Arab oil embargo and acquired a heightened awareness of the pressing need for a rational energy policy. Recognizing "... a real possibility of delay or disruption in Federal plans for needed new and expanded OCS oil and gas production . . . " , Congress expressly amended the Act in 1976 "... to encourage new or expanded oil and natural gas production in an orderly manner from the Nation's outer Continental Shelf (OCS). . . ."5/ In these amendments Congress also expressly recognized the need to balance local ecological needs against national energy needs. Among the 1976 amendments was the following legislative finding: 3/ 15 C.F.R. § 925. 4/ National Environmental Policy Act, 42 U.S.C. 4321 et seq . (hereafter "NEPA"). 5/ Joint Explanatory Statement of the Committee of Confer- ence, 3 U.S. Cong, and Admin. News 1821 (1976). - 2 - "The national objective of attaining a greater degree of energy self-sufficiency would be advanced by providing Federal financial assistance to meet state and local needs resulting from new or expanded energy activity in or affecting the coastal I? (CZMA § 302 (i) .) Congress thus concluded that, as a matter of national policy, a greater degree of energy self-sufficiency must be attained, but that coastal states suffering adverse impacts for the benefit of the nation as a whole should be appropriately compensated therefor. The '76 amendments also added to the "program require- ments" set forth in the original Act. One of these additions provided that, "the management program for each coastal state shall include . . . [a] planning process for energy facilities likely to be located in, or which may significantly affect, the coastal zone, including, but not limited to, a process for anticipating and managing the impacts from such facilities." (CZMA § 305(b) (8).) Lengthy provisions were also added estab- lishing a Coastal Energy Impact Program to provide "financial assistance to meet the needs of coastal states and local governments in such states resulting from specified activities involving energy development." (CZMA § 308.) At the same time Congress was considering its '76 CZMA amendments, the California legislature was struggling with a number of bills dealing with coastal zone management. Among the bills considered was proposed legislation drafted by the California Coastal Zone Conservation Commissions and supported by a lengthy study entitled the "California Coastal Plan". Although the legislature adopted a number of the commissions' recommendations, it chose to adopt neither their bill nor their plan, expressly providing that the California Coastal Act, and nothing else, "shall constitute California's coastal zone management program . . . for purposes of the Federal Coastal Zone Management Act of 1972. . . . "6/ While the DEIS asserts that the California Act "specifies detailed policies on which conservation and develop- ment decisions in the coastal zone are to be based," (DEIS, p. 5) £/ § 30008 California Coastal Act, Division 20, California Public Resources Code (hereafter the "California Act") . - 3 - the Act makes no mention of, or attempt to deal with, "the national objective of attaining a greater degree of energy self-sufficiency. ..." (CZMA § 302 (i).) To the extent considerations of other than environmental factors are mentioned in the California Act they are limited to impacts on the state , not the nation. Section 30001.2 of the California Act, for example, declares that "orderly economic development . . . within the state " may justify the location of certain listed facilities in the coastal zone notwithstanding the fact that they "may have significant adverse effects on coastal resources or coastal access." (Emphasis added.) Nor does the California Act consider the energy needs of non-coastal states or the nation as a whole. The only vaguely related references in the Act are allusions to "the public welfare". (§§ 30260(2); 30263(a) (3) .) We do not assert that California has the power to determine national policy in this, or any other area. We do, however, assert that the Federal Act requires that state programs provide for adequate consideration of "the national interest." The California Act does not. Assertions to the contrary in the DEIS are not founded on legislation, regulations, or anything of legal substance, but rather are unsupported assertions. To illustrate: Part II, Chapter 9 of the DEIS addresses "Energy Facility Impacts, Public Access, and Shoreline Erosion." (DEIS, p. 56.) Under the heading "Energy", the text quotes at some length from the California Coastal Plan prepared by the now defunct California Coastal Zone Conservation Commissions and submitted to the California legislature along with the coastal legislation proposed by the commissions. As we have already pointed out, neither the commissions' legislation nor its plan were adopted by the California legislature. Indeed, in addition to providing that the California Coastal Act represents California's entire coastal program, 7/ the legislature expressly disavowed the adoption of any portions of the commissions' plan except as reflected in the Act itself, concluding that the recommendations not so adopted "require [d] additional review." (California Coastal Act § 30002(b).) Thus, implications in the DEIS that the Coastal Plan represents the duly adopted policy of the State of California are mislead- ing and inaccurate. While the plan may be of historic interest, the legis- lation actually adopted as the California Coastal Act is the sole 7/ California Coastal Act, § 30008. - 4 - legitimate source of California's coastal policy. Broad policy statements, comments, opinions and what-have-you expressed outside the Act simply do not have the force of law and were never intended by the California legislature to be part of the California coastal program. Further, it is quite clear that materials extrinsic to the California Act do not satisfy § 305(b)(4) of the CZMA, which expressly requires that management programs identify the means by which the State proposes to implement its program "including a listing of relevant constitutional provisions, legislative enactments, regulations, and judicial decisions." The repeated references in the DEIS to materials extrinsic to the California Coastal Act, of which the foregoing is but one example, raise the wholly unjustified implication that California actually has a fully articulated coastal management program, as opposed to merely the statutory framework upon which to build such a program, as is actually the case. FAILURE TO ADEQUATELY PROVIDE FOR NATIONAL INTERESTS As we have discussed in detail elsewhere, the Cali- fornia Act makes neither provision for, nor mention of, the national objective of attaining a greater degree of energy self-sufficiency either through development of OCS resources, the transshipment or processing of resources from other parts of the world, or the proper siting of energy facilities. Despite this striking deficiency, the DEIS nevertheless contains such conclusory assertions as, " [r] ecognizing its responsibilities to the rest of the nation, California in its coastal planning has made every effort to consider the national interest in issued affecting the coast, . . . [t]he Coastal Act's energy policies . . take into account California's role in national energy supply;" and, "[t]he energy policies are based on a willingness to respond with a broader state role in meeting the nation's energy require- ments if such a need is clearly identified and if California's environmental [, ] economic, and legal interests are properly planned for and protected." (DEIS, p. 70.) The bulk of these assertions are unsupported by any references, let alone citations to the California legislation which constitutes the state's coastal management program so far as it has gone. Such unsupported conclusions are simply in- sufficient to satisfy NEPA, which clearly requires that the preparer of environmental impact statements "'go beyond mere assertions' and provide sufficient data and reasoning to enable a reader to evaluate the analysis and conclusions and to comment on - 5 - the EIS."8/ Unfortunately, a large number of the propositions advanced Tn the DEIS do not "go beyond mere assertions". To illustrate this point we have attached hereto an Appendix which provides examples, in outline form, of "assertions" made in the document which are either unsupported in the statement itself, unsupported by outside reference, unsupportable , or simply inaccurate. The list is intended to be illustrative, not exhaustive. NEPA quite clearly mandates sound scientific inquiry in environmental impact statements, not unsupported rhetoric. As the First Circuit has stated proposition: "A conclusory statement 'unsupported by empirical or experimental data, scienti- fic authorities, or explanatory informa- tion of any kind' not only fails to crystallize issues, [citations omitted] but 'affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives.'"^/ The balance of this memorandum discusses the failure of the DEIS to engage in the type of inquiry required by NEPA. FAILURE TO ASSESS THE PROBABLE IMPACTS OF CALIFORNIA'S ENERGY ATTITUDES Undoubtedly due to the current unfinished state of the California program, the subject DEIS is heavy on conclusory statements and light on factual support. Contrary to carefully couched implications in the DEIS that the California program is designed to give appropriate weight to other than local or statewide interests, the fact is that the state in recent years has consistently opposed both energy resource development on the OCS and the transshipment of petroleum products for use elsewhere in the nation. Neither the California Act nor anything cited in the DEIS provides any reason to believe this pattern will change in the future. In light of California's recent performance with respect to such energy development, the failure of the Cali- fornia Act to accord proper weight to the national interest in 8/ NRDC v. Callaway , 8 ERC 1273, 1284 (2nd Cir. 1975) 9/ Silva v. Lynn , 482 F.2d 1282, 1285 (1st Cir. 1973) - 6 - these areas raises the very distinct probability that, if California program is approved as it currently stands, the state will use the "consistency" provisions of the CZMA to obstruct, rather than facilitate, the pursuit of greater energy self-sufficiency in direct contravention of the stated Congressional purpose for adopting the "76 amendments "to encourage new or expanded oil and natural gas production in an orderly manner from the Nation's outer Continental Shelf. . . . "10/ Further, the failure of the DEIS to deal in any realistic fashion with the social, economic, and environmental implications of this likelihood render it fatally defective for purposes of NEPA — wholly aside from the failure of the California Act to satisfy the CZMA. The Council on Environmental Quality's guidelines for the preparation of Impact Statements pursuant to NEPA11/ expressly require the preparing agency "to assess the positive and negative effects of the proposed action as it affects both the national and international environment." (40 C.F.R. § 1500. 8 (a) (3) (i) . ) The guidelines also direct that "[s]econdary or indirect, as well as primary or direct, consequences for the environment should be included . . . , " giving as examples of such indirect consequences "... associated investments and changed patterns of social and economic activities." (Id. § 1500.8(a) (3) (ii).) Impact statements should also contain "an indication of what other interests and considerations of federal policy" might offset the proposed action and alterna- tives. (Id. § 1500.8(a)(8).) It is hard to imagine a single factor which could have a more profound impact on "patterns of social and economic activities" locally, regionally, or nationally than failure of the nation effectively to pursue adequate energy supplies, and yet the DEIS simply does not address the distinct probability that approval of the California program in its current state could significantly impede both OCS development and the importa- tion and processing of energy resources from abroad, of the environmental implications of this likelihood. If there could be any doubt that issues such as the nation's energy supply must be considered in the subject state- ment that doubt is dispelled by Appendix II to the guidelines, to which the guidelines refer in the following fashion: 10/ Joint Statement, supra at 1821. 11 / 40 C.F.R. Part 1500 (hereafter "EIS guidelines" or "guidelines" )'. - 7 - "Among factors to consider should be the potential effect of the action on such aspects of the environment as those listed in Appendix ii. ..." (40 C.F.R. § 1500.8 (3) (i) .) Prominent among the factors listed in Appendix II is "Energy- Supply and Natural Resources Development," under which heading appear, inter alia , "Petroleum Development, Extraction, Refin- ing, Transport, and Use"; Natural Gas Development, Production, Transmission, and Use"; and "Coal and Minerals Development, Mining, Conversion, Processing, Transport, and Use." NEPA case law, too, makes it quite clear that analysis of the impact of federal agency decisions on "the energy crisis" is called for by NEPA. 12/ Indeed, while we may disagree with the conclusion and result, one federal court has expressly held that failure carefully to consider the possi- bility of coastal state opposition to offshore energy develop- ment in an offshore lease-sale EIS violated NEPA. Wrote the court: "... passing references to, and abstract listings of, state and local authority is only the beginning and not the end of the NEPA required inquiry. The next, and by far more crucial step is a projection of the site-specific, pragmatic, empirical effects of the likely exercise of such power. It is the impact of local authority, not its mere existence , that must be studied and evaluated. "Environmental impact statements are neither academic exercises nor abstract dissertations on general environmental problems. They must be specific, pragmat- ic, serious studies of actual projects with real environmental impact aspects. It is not sufficient to cram an enormous volume full of generalities, or to consider in depth irrelevant, tangential or marginal factors. "13/ (Emphasis in original.) 12 / NRDC v. Morton , 458 F.2d 827, 835 (D.C. Cir. 1972). 13 / New York v. Kleppe , 9 ERC 1798, 1803 (E.D. N.Y. 1977) Nowhere in the DEIS is such consideration accorded the failure of the California Act to deal with the "energy crisis" or the probability that it will be used to impede, rather than enhance, pursuit of the nation's energy policy. As a consequence of our current energy shortage, there are various and sundry moves afoot to reduce the stringency of air and water quality legislation, increase mining for and the use of coal, and numerous other ally alternatives which demand consideration before a balanced, well-reasoned decision can be reached regarding the approvability of the California program in its current unfinished state. As already suggested, the law clearly requires that Impact Statements "be sufficiently detailed to allow a respon- sible executive to arrive at a reasonably accurate decision regarding the environmental benefits and detriments to be expected from program implementation. "14/ While NEPA most assuredly does not require "crystal ball" inquiry, it just as assuredly does require such statements to contain information sufficient to permit a reasoned choice of alternatives. . . . "15/ As we have illustrated in the appendix hereto, the subject DEIS simply does not meet this standard. The reason for this insufficiency is as obvious as it is understandable. The California Act provides for the preparation of local coastal programs, by each local government lying in whole or in part within the coastal zone, and their subsequent submission to a state commission for approval. This scheme is intended to implement the finding of the Cali- fornia legislature that "to achieve maximum responsiveness to local conditions, accountability, and public accessibility, it is necessary to rely heavily on local government and local land use planning procedures and enforcement." The notion well may be a good one, but these local programs will not be due until July 1, 1980 nor need they be certified by the state commission until December of 1980. Of course, until the local plans actually come into existence, it is idle to speculate as to their form and impossible to assess their social, economic or environmental impacts. In our judgment, that impossibility lies at the root of the undeniable deficiencies of the DEIS. Stated simply: Because the local programs mandated by the California Act have yet to come into being, it is clearly premature to grant the program blanket approval with all its attendant consequences. Similarly, because it is impossible to rationally assess the 14/ EDF v. Hardin , 325 F.Supp. 1401, 1403 (D.C. D.C. 1971). 15/ NRDC v. Morton, 458 F.2d 827, 836, 837 (D.C. Cir. 1972). - 9 - impacts of a program which is so incomplete it is too early to prepare a satisfactory — and legally sufficient — Environmental Impact Statement. CONCLUSION We certainly do not dispute the proposition that the California coast is a valuable national resource, as are the coastlines of all the coastal states. But the oil and gas in the OCS are valuable national resources as well, belonging to the nation as a whole — not just to coastal states. Further, orderly development of these resources is absolutely indis- pensable to the nation's economic health and security, as is proper provision for the transshipment and processing of energy resources from other parts of the world. Because certain negative impacts are unavoidable in the development or transshipment of energy resources, many coastal states have been reluctant to bear those impacts for the benefit of their sister states not blessed with coastal access. In recognition, on the one hand, of the need for overcoming this form of parochialism and, on the other, of the justice and practicality of compensating the coastal states for such negative impacts, Congress amended the Federal Act expressly so that "the national objective of attaining a greater degree of energy self- sufficiency would be advanced. . . ," a goal identified by the drafters of the Act as "a recognized national objective of the highest importance and priority. "16/ We think it contrary to the CZMA to approve a plan which does not specifically and in detail serve that objective. We likewise think it contrary to NEPA to omit from the subject Impact Statement careful consideration of the probable economic, social, and environmental impacts of such a deficiency. 16 / Joint Statement, supra at 1821 - 10 - APPENDIX "A 1 This appendix is intended to provide examples, in outline form, of statements contained in the DEIS which are unsupported in the statement, unsupported by outside reference, unsupportable, or simply inaccurate. It also attempts to illustrate certain deficiencies in the statement. The list is intended to be illustrative, not exhaustive and focuses pri- marily on the national interest in energy. Page DEIS Heading Comments PART I Introduction A. The Federal Coastal Zone Manage- ment Program A. The Federal Coastal Zone Manage- ment Program B. OCZM Requirements for Program Approval The DEIS correctly states that the CZMA "was substantially amended on July 26, 1976." The statement does not, however, recognize or reflect that Congress expressly amended the Act "... to encourage new or expanded oil and natural gas produc- tion in an orderly manner from the Nation's outer Continental Shelf (OCS). . . . "*/ Apparently for this reason, the energy issue and its environmental, economic, and social impacts are not appropriately dealt with anywhere in the document. Reference is made to 15 CFR Part 923, promulgated on January 9, 1975, which sets forth criteria to be employed in reviewing state coastal programs for approval pursuant to § 306 of the Act. Those regulations were promulgated prior to passage of the 1976 amendments. They conse- quently do not deal at all with the requirements of those amendments. Nor have proposed amendments thereto yet been finally promulgated. As stated above, the referenced regulations were promulgated prior V Joint Explanatory Statement of the Committee of Conference, 3 U.S. Code Cong. & Admin. News 1821. Page DEIS Heading Comments (Section 306) to California's Coastal Submission to the adoption of the 1976 CZMA amendments and, hence, fail to deal extent reference is made to proposed regulations, such as §§ 923.18, 923.19, and 923.20, rulemaking procedures are incomplete and reliance thereon premature. Further, references to such provi- sions as § 923.42 are confusing since it is unclear whether such reference is to the existing section or to the proposed section of the same number. C. Summary of the California Coastal Management Program The DEIS asserts that "Effective January 1, 1977, California has a permanent comprehensive coastal management program based on the Coastal Act." This is untrue. The California Coastal Act provides a framework for the preparation of plans by local authorities. As can be seen from the schedule estab- lished by the California Act for the preparation, adoption, and submission for approval of such plans (set forth below) the process is far from complete. Date Section # 1/1/77 1/02/77 1/11/77 1/30/77 3/15/77 4/01/77 30311 30304.5 30305 30620(a) 30501 California Coastal Commission activated, State and regional commissioners appointed Regional commissions meet to select State Commission representatives Commission to have prepared interim procedures for submission, review and appeal of coastal development permit applications and claims of exemption Coastal Commission to adopt official coastal zone map Commission to have adopted proce- dures for preparation, submission, approval, appeal, certification and amendment of local coastal programs - 2 - Date Section # 5/01/77 30701 30338 Commission to have adopted, certified, and filed map of each ports juris- dictional boundary Commission to have adopted regulations for timing of review of State Water Resources Control Board proposed treatment works 6/01/77 7/01/77 30501 30620(b) 30521 30417 Regional commissions, if any, to have established schedule for processing of local coastal programs Commission to have adopted permanent procedure for development permit applications Regional commissions, if any, to have commenced formal review of model local coastal programs Commission to have identified special forest treatment areas 9/01/77 30500 30502 Local Governments ' request for Com- mission preparation of local coastal programs due Commission to have designated sensi- tive coastal resource areas 1/01/78 30413 7/01/78 8/01/78 30410 30415 30620.6 Commission to have designated locations where placement of energy facilities would prevent achievement of objectives of the division BCDC - Commission joint review of division and recommendations for Legislature due OP&R review of division policies and recommendations for state agency cooperation and coordination due Commission to have adopted public notice and appeal procedures for review of appealable development projects (sections 30306 and 30615) - 3 - Date Section # 1/01/79 6/30/79 1/01/80 7/01/80 1/01/81 30342 30300 30501 30501 12/01/80 30501 30518 Page Heading 5 2. Policies Commission to evaluate its progress and submit report to Governor and Legislature biennially Regional commissions terminate Local coastal programs prepared by local governments must be submitted for approval Local coastal programs prepared by the commission to be completed Local coastal programs prepared by the commission to be certified Local coastal programs certified and effective or specified sanctions take effect Comments Mention of or reference to the 1975 California Coastal Plan is misleading Except as adopted in the California Coastal Act , the policies proposed in the plan were expressly rejected by the California legislature. (Calif. Coastal Act § 30002(b).) PART II Description of the Proposed Action The California Coastal Management Program The bulk of our comments regarding the deficiencies in the California coastal program, as it currently exists, appear in the covering memorandum and the "Memorandum with Respect to the California Coastal Act of 1976 and the Federal Coastal Zone Manage- ment Act, dated May 18, 1977" previously submitted by WOGA. The comments set forth below have consequently been limited to providing specific examples of deficiencies discussed in greater detail elsewhere. Page Heading 22 Industrial Develop- ment, Energy Facili- ties, and Ports Comments The DEIS asserts that "the Coastal Act established many specific, detailed policies" regarding the - 4 - Page DEIS Heading Comments need for industrial facilities and energy-related developments in the coastal zone. It is true that the Act contains statements of general policy objectives. However, pro- visions of law implementing those policies do not yet exist, and it is thus impossible to evaluate their probable impact, locally, regionally, or nationally. Further, the policy provisions cited make no provision for the consideration of "the national interest involved in planning for, and in the siting of, facilities . . . which are necessary to meet requirements which are other than local in nature as expressly required by the Federal Act." To the contrary, only two considerations are listed in the California Act as justifying the location of such facilities as refineries, or offshore petroleum and gas development, and liquified natural gas facilities in the coastal zone: (1) The preservation of "inland as well as coastal resources" and (2) Orderly economic development " within the state . " (California Act § 30001.2.) Other sections list additional policy considerations applicable to specific classes of facilities but nowhere does the California legislation meet the express requirements of the Federal Act that adequate consideration be given to greater than statewide interests. 56 Chapter 9 - Managing the Coast (4) : Energy Facility Impacts, Public Access, and Shoreline Erosion The failure of the Cali take into account inter than those of the state or its subdivisions has repeatedly and in detai Despite strong efforts contrary implication in sections cited here, as nothing to remedy that fornia Act to ests other of California been discussed 1 elsewhere. to raise the the DEIS, the elsewhere, do deficiency. - 5 - Page DEIS Heading 57 Comments The DEIS quotes the requirements of § 305(b) (8) of the Federal Act that, in order to qualify for program develop- ment grants under § 305 state programs establish " [a] planning process for energy facilities ..." and so on. Based upon these criteria the statement then goes on for almost three pages to discuss the energy issue under a variety of headings. However, since the subject of the DEIS is the approval of the California program pursuant to § 306, not funding of develop- mental efforts pursuant to § 305, the controlling provisions regarding the siting of facilities of greater than local importance appear in § 306(c)(8), which reads as follows: "The management program provides for adequate consideration of the national interest involved in plan- ning for, and in the siting of, facilities (including energy facili- ties in, or which significantly affect, such state's coastal zone) which are necessary to meet require- ments which are other than local in nature. In the case of such energy facilities, the Secretary shall find that the state has given such consideration to any applicable interstate energy plan or program." The distinction between § 305(b)(8), upon which the DEIS analysis is predicated, and § 306(c)(8), upon which it should have been based, is subtle but important. Indeed, it runs to the heart of the deficiency in the California program as it currently exists. § 305 establishes a basic framework for developing state plans. § 306 , on the other hand, establishes criteria which finished plans must meet in order to be approved . The California Act clearly establishes an elaborate - 6 - Page DEIS Heading 57 Energy Facilities Planning Process 58 Comments developmental framework. Because the mechanism provided by the California Act has not yet produced a coastal program, however, approval under § 306 is premature in any event, and improper for its failure, inter alia , to satisfy § 306 (c) (8) . Wholly apart from the application of the wrong statutory standard, the bulk of the observations and assertions contained in the analysis regarding energy facilities are without legal or factual foundation. For example: The study asserts that "many of the overall energy planning matters will be undertaken by the Coastal Commission and regional commissions with cognizance of the extensive work done by other California agencies. ..." This may or may not be true, but neither the California Act nor any other legislation or regulation cited in the DEIS mandates, or provides a standard for, the exercise of that "cognizance. " The process described in this section simply is not provided for in the California Coastal Act. To the extent reference is made to the Coastal Plan, recommendations not expressly incorporated in the Act were not adopted by the California legislature as a part of the California coastal program. The DEIS asserts that "the Coastal Commission will review all local coastal programs and port plans to insure that, in total, they include adequate provisions for the siting of energy facilities to meet the energy demand as determined by appropriate State and Federal agencies." This requirement does not appear in the California Act. - 7 - Page 58 DEIS Heading State Agencies Con cerned with Energy Facility Planning 59 Identification of Energy Facilities Likely to Affect Coast Comments This discussion describes the cur- rent state of the California program, referring to the "commencement of study"; "requesting assistance" respecting the siting of energy facilities; "establishing liaison for formulating a process" for review of energy siting decisions; and adopting a memorandum of under- standing between the California Coastal and Energy Commissions regarding energy facilities. While such projects are undoubtedly necessary steps in the formulation of a coastal program for California, they hardly satisfy the express requirement of 40 CFR § 923.15(b) that "... national concerns over facility siting IbeJ expressed and dealt with in the - development and implementation of State coastal zone management programs." As with its predecessors, this por- tion of the DEIS merely identifies the issue rather than meeting it. No parameters for assessing perfor- mance are provided, or even hinted at, in the California program as it now stands, even though federal regulations expressly require the "formulation of measurable objectives," at least with respect to such considerations as energy facilities requirements. The following comment from the Coastal Zone Management Approval Regulations makes this requirement clear: "The Secretary encourages the States to develop objectives toward which progress can be measured and will review program submissions in this light. While it is recognized that many essential coastal zone management objectives are not quantifiable (e.g. public aspira- tions, 'quality of life'), others - 8 - Page DEIS Heading Comments 60 Assessment of Energy Facility Impacts Managing Energy Facility Impacts are, and should be set forth in measurable terms where feasible (e.g. shore erosion, beach access, recreational demand, energy facility requirements) . Identifying and analyzing problems and issues in measurable terms during the program development phase will facilitate the formulation of measurable objectives as part of the approval submission. " 40 CFR § 92 3.4, comment. The discussion under these headings suffer the same absence of substance as those preceding, stating, for example, "that the Coastal Act . . . requires identification of [energy facility] impacts and requires that decision-making take the impacts into account." However, no standards, no priorities, no guidance as to how these impacts must be accounted for are cited in support or, indeed, provided in the California Act. In their absence, only ad hoc , case- by-case decisions can be experts — exactly the result the Federal Act was intended to avoid. 69 Chapter 11 Managing the Coast (6) : The National Interest and The Consistency of Federal Actions A. The National Interest in The California Coastal Zone The California Coast is most assuredly a national resource— one of immense value. But so is oil and gas on the OCS. Congress has expressly declared that both resources be carefully weighed in managing the nation's coastal zone. In pursuit of these mutual goals, as the DEIS correctly asserts, the Federal Act expressly requires state management programs to provide "for adequate considera- tion of the national interest involved in the siting of facilities necessary to meet requirements which are other than local in nature" (§ 306(c)(8)) and to provide "a method of assuring that local land and water use regulations within the - 9 - Page DEIS Heading Comments coastal zone do not unreasonably restrict or exclude land and water uses of regional benefit." (§ 306(e)(2)). The suggestion that the California Coastal Act meets either or both of these requirements, however, is patently incorrect. Neither factual nor statutory support is provided in the DEIS for its broad assertions that, "[Recog- nizing its responsibilities to the rest of the nation, California in its coastal planning has made every effort to consider the national interest in issues affecting the coast, . . . [t]he Coastal Act's energy policies . . . take into account California's role in national energy supply;" and, "[t]he energy policies are based on a willingness to respond with a broader state role in meeting the nation's energy requirements if such a need is clearly identified and if California's environmental [, ] economic, and legal interests are properly planned for and protected." The California Act contains no provisions reasonably capable of being so construed and the state's past performance belies such conclusion. In short, the California Act does not provide for consideration of national interests or policies. 71-76 B. Consistency of Federal Actions C. Administration of the Federal Consistency Provisions The statement accurately summarizes the Federal Act's requirements that federally conducted or supported activities in the coastal zone be "to the maximum extent practicable, consistent with approved state management programs." However, while it is true that the California Act vests in the Cali- fornia Coastal Commission plenary - 10 - Page DEIS Heading Comments power to exercise the "certification" powers set forth in § 307 of the Federal Act, the DEIS cites no statute or regulation in support of the assertions that the Commission will monitor and review Federal activities, enter into memoranda of understanding with regard thereto, or follow the procedures outlined in the DEIS. In the absence of state laws of some form requiring such activity, it cannot be assumed that the Commission will so act. 90 PART III Probable Impact of the Proposed Action on the Environment In the absence of a plan implementing the general policies outlined in the California Coastal Act, it is impossible to realis- tically assess the environmental, economic or social impacts- positive or negative — of the Act's eventual implementation. The difficulties inherent in analyzing the program at its current stage of development as expressly recognized in the following excerpt from the introductory comments to this part of the DEIS. "In an attempt to fully understand the impacts associated with Federal approval, it was determined there should be an explora- tion of the impacts which have resulted from the implementation of Proposition 20 as well as what may happen under the California Coastal Management Program. However, the experience of the Coastal Commission and regional commissions under Proposition 20 is not necessarily guiding as to the impacts that may occur under the proposed California Coastal Management Program. This EIS is based on a comprehensive program which will be implemented over many years. It is impossible to assess discrete impacts that may occur over time, but a few points can be made . " (DEIS, p. 90.) - 11 - Because the California Act speaks in generalities to be implemented in local plans, the impact analysis in the DEIS is necessarily limited to generalities, as clearly illustrated by the following passages from the DEIS: "Both beneficial and adverse environ- mental and socio-economic effects will result from Federal approval and State implementation of the California Coastal Management Program. The fundamental cri- terion for assessing these impacts should be the CZMA's declaration of policy "to achieve wise use of land and water resources of the coastal zone giving full considera- tion to ecological, cultural, historic, and aesthetic values as well as to needs for economic development. " "Protection of the coastal zone may be viewed as beneficial to the environment and to the public welfare for many reasons, but it also may have adverse socio-economic effects on property owners and would-be property owners whose plans are limited or curbed by the program. " (DEIS, p. 90.) As we perceive the Federal Act, it was intended to induce the coastal states to translate these generalities into enforceable criteria so that regulators and regulated alike would have a solid frame of reference within which to work in seeking an optimal balance among environmental, economic, and social needs. This has not yet been completed in California. This problem aside, Part III wholly fails to consider the distinct likelihood that California will use the consistency provisions of the Federal Act to impede, rather than enhance, the production of energy resources on the OCS, or the trans- shipment and processing of such resources from elsewhere. The negative impacts of such an eventuality, in terms of the upland environment as well as from economic and social standpoints, could be devastating. Yet they simply have not been addressed in the DEIS. It would appear, at the very least, that the state- ment should include consideration of the possibility that California will use its § 307 consistency powers at every possible occasion in order to frustrate and prevent offshore - 12 - development. Such a discussion is necessary, particularly in view of the history of opposition by the State. The dis- cussion, in order to be complete, necessarily should include consideration of the delays which would result from appeals to the Secretary of Commerce on such decisions and take up alternatively the effect, if the Secretary should sustain operations, or sustain the State. It would also appear that the statement, in order to be adequate, should consider the effect on Outer Continental Shelf operations of various restric- tions which the State has indicated a disposition to impose, such as pipeline transportation only, as opposed to use of tankers where economically more desirable; requirements that tankers be partially loaded only; limitations on the number of tankers that could operate in a given period of time, etc. The State has taken enough actions in this direction so that these concerns are not speculative, and should be addressed. The DEIS is also inadequate in that it does not discuss the effect of possible use of the consistency powers to hinder or prevent installation of necessary support facili- ties, harbor facilities, and other necessary onshore facilities with respect to offshore and onshore energy operations. The Act adopted by California, in its present form, is sufficiently general so that it is conceivable that the State Commission might use its powers either (a) totally to inhibit development of such facilities; (b) to allow such facilities but under restraints which would add greatly to the cost thereof, thus making some offshore and onshore operations uneconomic, bringing about a reduction in ultimate production; or (c) allowing full- scale operations, unlikely though that presently appears. The effect of each of these patterns of activity ought out to be discussed. None is. Further, the statement contains essentially no dis- cussion of negative environmental consequences of approval of the Plan given the regulatory rigor that can be anticipated from California. Significant restraint on OCS development necessarily carry the consequence of further oil imports; a higher risk of oil spills; additional demands for coal, perhaps oil shale, perhaps nuclear sources of energy, all of which have significant environmental effects. The effective elimina- tion of the Coastal Zone as an area for the erection of new residences and for much of industry carries with it signifi- cant economic burdens and also has the effect of forcing such development into other locations. The environmental effect of that sort of diversion of development is nowhere mentioned. As pointed out in the accompanying memorandum, under applicable regulations, a discussion of the offsetting policy considerations involved and pluses and minuses either way is essential. - 13 - The present California Coastal Zone legislation specifically authorizes only one LNG facility. The statement is inadequate in that it does not discuss the effect of that requirement and does not discuss the hazard that no such facility might be permitted or the possible need for more than one such facility. The statement is also inadequate in that it appears to contemplate substantial restraints on development within the Coastal Zone, but nowhere really discussed in any detail the difference between patterns of development which might be expected under such restraints, as opposed to those which would exist without. Questions not directly related to the oil industry are numerous. For example, the operation of the permit process under the activities of the interim Commission has been a major restraint on housing construction in Orange County and in other areas within the Coastal Zone. This in turn is probably a factor in escalating the present astronomi- cal levels in value of housing anywhere in the vicinity of the coast. This in turn has made such housing unavailable to many citizens. There should be a full discussion of the economic and social pluses and minuses of such restraints, both as applied to residential development and to industrial development. All the statement contains is a few generalities on this topic. Nor does it appear that the appropriate review criteria are being applied. Under the heading "Industrial and Energy Development" the DEIS asserts that, "what must be analyzed in this EIS is whether [the] policies and objectives guiding facility siting decisions are exclusionary or by their very nature arbitrarily exclude facilities which are in the national interest or of more than purely local concern." (DEIS, p. 128.) This is not the statutory standard . The Federal Act expressly requires that state plans provide "adequate consideration of the national interest involved in planning for, and in the siting of facilities (including energy facili- ties in, or which significantly affect . . . [the] coastal zone) which are necessary to meet requirements which are other than local in nature." (CZMA § 306(c)(8).) This the California Act simply does not do. It makes no provision, one way or the other. Consequently, it does not meet the statutory standard. Interestingly, the DEIS recognizes the ongoing conflict between California policies—as actually implemented—and national energy needs, stating that, "Disagreement will continue and possibly even litigation over specific issues." Nowhere, however, does the statement assess the probable impacts of this continuing conflict. - 14 - 137 PART IV Alternatives to the Proposed Action The most appropriate alternative to § 306 approval, additional funding pursuant to § 305 (d) , is barely mentioned — and not analyzed at all — in the statement. We believe that, in providing for § 305(d) grants, Congress anticipated precisely the type situation which exists with respect to the California program: Indeed, the section expressly provides for grants "for the purpose of assisting [coastal] state [s] in the comple- tion of the development, and the initial implementation, of its management program. ..." (§ 305(a) (2).) The California program is undeniably still being developed — just as some portions of it are now being implemented. It is significant to note that § 305 (d) was added by the 1976 amendments, which also added the program requirements which included the energy facilities planning process. The most reasonable inference to be drawn from the simultaneous addition of these provisions is that Congress recognized and provided for the need for additional time and funding to comply with the substantive requirements added by those amend- ments. Precisely the instant state of affairs. As a practical matter, applying § 305(d) would fund the major portions of both the continuing developmental efforts and the initial stages of the program's administration. Section 306 funding, on the other hand, is limited by statute to defraying costs of administration. Consequently, it is not at all clear that § 306 funds properly could be applied to the development of local plans. - 15 - PART FIVE COMMENTS FROM OTHER PARTIES I League of Women Voters of California VMM M^Aw942\ Market St., Suite 505, San Francisco, CA 941 02 (41 5) 986-1 532 Joan Rich, President STATEMENT ON THE REVISED DRAFT ENVIRONMENTAL IMPACT STATEMENT PREPARED BY THE OFFICE OF COASTAL ZONE MANAGEMENT ON THE CALIFORNIA COASTAL MANAGEMENT PROGRAM May 20, 1977 The League of Women Voters of California believes the California Coastal Management Program should receive final Federal approval. Final approval will qualify the State for Federal matching funds with which to continue in its current planning efforts and to administer the Program. Members of the League of Women Voters of California supported passage of Proposition 20 in 1972 and took active roles as citizen participants in preparation of the Coastal Plan. The Coastal Plan followed closely many of the standards for sound land use planning that were adopted by the League of Women Voters after a two-year state and national land use study. One of League's primary criteria for responsive and responsible land use planning was met by the massive and widely diversified public participation that began in the early stages and continued throughout the process of preparing the Coastal Plan. During consideration of the policies to be included in the Plan and review of permits, the Coastal Commission was mindful that land along the coast is a limited resource, not just a commodity — the basic premise, the League believes, upon which land use decisions should be made. The League of Women Voters has long-standing commitments to human and natural resources. As a result, we believe a balance must be struck among social, economic and environmental goals. We are gratified that policies in the Coastal Act aim at achieving such a balance, with conflicts between policies to "be resolved in a manner which on balance is the most protective of significant coastal resources." (Section 3007.5 of the Coastal Act) The League of Women Voters believes the following major policies are essential in the implementation of the California Coastal Act: o Public access to the coast should be assured for all citizens regardless of income, for recreational us§ n /housing that includes a balanced protection of existing and provision of future low and moderate income housing and/or facilities (visitor camp- grounds, trails, moderate eating facilities, etc.), contingent upon the carrying capacity of coastal areas. o Fragile coastal areas and coastal agricultural lands must be identified and preserved and development on natural hazard land controlled. California Coastal Management Program page 2 o An orderly progression of development must occur, giving priority to infilling of present urban areas in order to assure less energy consumption, preserve open space and allow people to live near their jobs, while maintaining inherent community characteristics and, again, to include facilities for low and moderate income persons. o Public transportation should be developed to utilize present road systems rather than expanding existing road systems or undertaking new construction. o Coastal development must be consistent with the attainment and maintenance of ambient air and water quality standards and wise utilization of energy. o The public must continue to participate in the coastal imple- mentation process. The remainder of our statement will expand upon this point. Both the Federal and State Coastal Zone Acts have the same goal: establishing a sound management program for the coastline, utiliz- ing the coordinated efforts of all appropriate governmental agencies, with management programs based on a comprehensive coastal plan evolved through a process that employs maximum public participation . The League of Women Voters believes this goal has been achieved in preparation of the California Coastal Plan. We are now turning much of our attention to attainment of an effective structure for citizen involvement in implementation — including monitoring and enforce- ment — of the Coastal Act. The League believes no governmental land use program can succeed without a strong citizen role. It is the citizen who is ultimately affected by land use decisions, who must elect responsible leaders, who supports responsive legislation, administration and enforce- ment, and who must pay the cost — financial, or otherwise. Because land use decisions involve weighing and balancing values, noij merely technical decisions, the citizen has a right and an obligation to make his or her views known. Citizens without a direct profit interest must also be heard . The League believes it is not enough that citizens be provided the opportunity to review and comment on an option which is, in many cases, already de facto, in the eyes of the state or local governing body. We believe public involvement should include requirements for citizen access to alternative proposals and choices. We believe that receipt of continuing grants by the Federal government to the State for administration of the coastal management program should be conditioned upon processes that have been developed and set in motion for realistic citizen participation. The League believes those processes must assure that citizens have an opportunity to be well-informed, that they have access to basic information and alternative choices — and that this be done in a timely manner. The League concurs in suggestions in Appendix B of the Revised Draft Environmental Statement that it would be helpful to have an on-call pool of staff members or consultants available to advise California Coastal Management Program page 3 interested citizens on coastal issues and related technical matters. The Appendix also correctly points out that effective coastal monitoring makes heavy demands on volunteer groups. Public funding and other support for citizen groups is urged as a possible way of ensuring effective perpetuation of these activities on a long term basis. The precedent for such procedures has been set by the Federal Trade Commission and is currently under consideration (we are told) by eight other Federal agencies. It may be that public funding and other support for constituency groups is the most effective way to encourage adequate and responsive implementation of the Act by the Coastal Commission and the most effective means to guard against client co-option, i.e., the eventual domination of an agency by the interests it is supposed to regulate. The League of Women Voters supported provision for a Public Advisor in the California Coastal Act. Such an Advisor would serve to ensure that full and adequate participation by all interested groups and the public at large is secured. The Advisor would work within the Commission to create and maintain the mechanisms by which public input would be received and simultaneously take full advantage of the opportunities for that public participation. The Advisor should be able to advise the Commission on issues of participation, not necessarily in response to the Commissianfe will, but in response to the needs and interests of the public as the Advisor perceives them. In restating League support of a Public Advisor in the California Coastal Commission, we suggest that examples of other states, the Federal agencies and the California Energy Resources Conservation and Development Commission be studied as to mechanisms for carrying out the duties of Public Advisor. The League of Women Voters is pleased to note on page 83 of the revised DEIS that the Coastal Commission will have on its staff a professional experienced in working with the general public whQ."will be assigned the responsibility of ensuring the requirements of Coastal Act Section 3050 3, which states that "During the preparation, approval, certification and amendment of any local coastal program, the public, as well as all affected governmental agencies, including special district, shall be provided maximum opportunities to par- ticipate." The California Coastal Management Program is devised to offer the maximum in responsiveness to local conditions, accountability and public accessibility, while assuring that local decisions will pro- tect statewide concerns. Since local governments will have the major responsibilities for the Coast, it is especially important that effective processes for citizen participation be developed and set in motion at the local level. We realize citizen participation cannot change the State's coastal policies as set forth in the Coastal Act but, as stated in the Draft Local Coastal Program Manual, "...within the flexibility allowed in applying those policies at the local level, public involvement will be an important factor in planning and implementing California's coastal conservation and development program." California Coastal Management Program page h The League agrees with the Draft Local Coastal Program Manual that important as public hearings are, full public participation as en- visioned by the Coastal Act should begin much earlier in the plan- ning, with informational meetings, advisory review and other such means of giving the widest possible range of interests an opportunity to participate in the plan preparation. The League of Women Voters of California urges the Coastal Commission to provide all possible assistance to local governments with their citizen participation efforts through such methods as publishing a newsletter and providing assistance in organizing public forums on regional issues, efforts which should be included in future budget proposals. We are pleased at the inclusion in the Local Coastal Program Manual of the useful checklist of citizen participation techniques for local governments to consider in preparing their participation pro- grams . The League strongly urges the Coastal Commission, in' its funding review of local work programs, to assure a commitment to citizen participation in the local governments 1 Local Coastal Programs preparation process and make, if necessary, additional recommenda- tions to state and local agencies to assure maximum public partici- pation as required under the Coastal Act. While League asks government to make adequate provision for citizen participation, we realize that such provision carries with it a high degree of citizen responsibility . It is up to us, the citizens, to become familiar with the Coastal Act, particularly those policies to which Local Coastal Programs must conform; to encourage our local governments to explore and use a wide variety of ways to involve the public and take part in them ourselves; to find out where and when public hearings will occur; and to urge other citizens and organizations in our communities to participate. Citizen participation in government is fundamental to the democratic process and is the cornerstone of the political purpose of the League of Women Voters. We are determined to make every possible effort to encourage our own members, as well as other concerned citizens, to become actively involved in effective implementation of the California Coastal Management Program. y\ MALIBU TOWNSHIP COUNCIL, Inc. ""P.O. ^W^aW, Ca 90265 TESTIMONY TO THE OFFICE OF COASTAL ZONE MANAGEMENT NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION U.S. DEPARTMENT OF COMMERCE ON STATE OF CALIFORNIA COASTAL MANAGEMENT PROGRAM AND REVISED DRAFT ENVIRONMENTAL IMPACT STATEMENT Los Angeles California May 19, 1977 BY THE MALIBU TOWNSHIP COUNCIL, INC. Walter F. Keller, President Prepared by Faye S. Hove Mr. Chairman and gentlemen of the Hearing Board, I am Faye Hove, 6922 Wildlife Road, Malibu, representing the Malibu Township Council, an organiza- tion of 750 property owners and residents spanning the 27-mile-long Malibu community, h% of the California coastline. It is our custom to make a consoli- dated presentation to avoid a long line of individual speakers. At the May 16, 1977 Directors' meeting, our Board passed a unanimous resolution authorizing the following testimony. Our organization supported Proposition 20, provided review and input to all of the California Coastal Plan Elements, has given testimony to the South Coast Regional and State Commissions at every possible opportunity, and sup- ported the California Coastal Act of 1976. Only six weeks ago, we gave testi- mony on the draft "Interpretive Guidelines" and will continue to follow Cali- fornia Coastal Commission policies and procedures with interest. MALIBU TOWNSHIP COUNCIL TO OCZM t NOAA t U.S. DEPARTMENT OF COMMERCE. 3/19/77 2 We have a major concern, A MAJOR CONCERN , that the objective of "saving" the California coastline for future generations is being subverted by an all- out emphasis on public access without recognition that high density public de- velopment and public use can be as damaging as private development. A strong positive commitment to, and implementation of, a program to protect the marine habitat and natural values of our Pacific Ocean resource is sadly lacking in the State's "Interpretive Guidelines," and in the OCZM Draft Environmental Im- pact Statement. We further feel that the objectives of achieving low- and moderate-income housing and of minimizing traffic impact are not addressed realistically. We have a fewmajor points to make. First , NOWHERE in the DEIS do we find emphasis on protection of the marine habitat in areas of uniquely biologically healthy condition nor consideration for carrying capacity. On Page 77 of your very thorough analysis of the Cali- fornia Coastal Act, the Federal funds mentioned are available for plan prepara- tion, ministerial conformance, development, and acquisitions. BUT, WHATEVER HAPPENED TO RESOURCE MANAGEMENT AND PRESERVATION? Implementation of a Preservation Management Program should be a TOP PRIORITY! The predecessor South Coast and State Commissions recommended that the coastal area from Point Mugu in Ventura County to Topanga State Beach in Los Angeles County be designated a "Marine Reserve." If it takes Federal action to achieve this objective, it should be accomplished with great haste. This is an area of the healthiest marine habitat in three Counties: Ventura, Los Angeles, and Orange. Because relatively little development has taken place in the coastal Santa Monica Mountains, the sandsheds are still intact. A continuing sand supply is mandatory for a biologically healthy marine environment (See Exhibits). To date, we have had no protection program. Second, the Malibu Township Council has long been on record in opposition to "access for access' sake," and first presented a statement to the South Coast Regional Commission on October 29, 1973 * and subsequently to the State Commission. I'll quote in part: "At a series of areawide community meetings in February 1973» we found wide acceptance of the principle that our Malibu community possesses unique public values, and a willingness on the part of the participants to share the community with the public. However, we also found that spot access to the beach one or two miles distant from sanitary facilities and remote from protective services has led to excessive litter, vandalism, whole- sale collection of rare species, and destruction of marine life and habi- tat." MALIBU TOWNSHIP COUNCIL TO OCZM. NOAA. U.S. DEPARTMENT OF COMMERCE .5/19/77 3 Relative to access for the public, especially in residential neighborhoods, the California "Interpretive Guidelines" and the DEIS fail to place any responsi- bility on state and local agencies, nor any responsibility on the part of the public, for protecting the marine habitat in exceptional natural areas. We urge a clear statement REQUIRING ADMINISTRATION OF PUBLICLY -OWNED BEACHES, ACCESSWAYS, AND TIDELANDS, BY TRAINED NATURALISTS AND RESOURCE MANAGEMENT PERSONNEL WHO WILL PREVENT REMOVAL OF MARINE LIFE AND VEGETATION, AND WILL EDUCATE THE PUBLIC TO RESPECT THE NATURAL VALUES THEY ARE PRIVILEGED TO ENJOY. On Pages 112, 123, and 125 of the DEIS, under "Management Issues," only private development is cited. WHY ISN»T DAMAGE BY THE PUBLIC ADDRESSED? On Page 126, the DEIS admits, "Policies and guidelines in the Coastal Management Program are intended to make construction of new developments environ- mentally sound." Yet it is the policy of the State of California to turn over all beach acquisitions and accessways in Los Angeles County to the County De- partment of Beaches which only has personnel and funds for lifeguard service and maintenance. We feel the Federal Government should MANDATE AND FUND a program similar to the N a tional Park Service, to protect ecologically sensitive coastal areas. If you wish, have Rangers patrolling the natural areas in forest-green bikinis, wearing armbands with a patch, and a sunshade hat with badge. At least these Rangers can teach children not to take the starfish from the tidepools, and will have the authority to admonish grownups not to throw beercans into the tidepools. Third , relative to Section 30010 of the California Coastal Act, as men- tioned on Page 80 of the DEIS, we have long been on record that we oppose indis- criminate demands for narrow public access corridors from streets and highways, an lateral beach access across private property, UNTIL provision is made for compen- sation, lifeguard service, sanitary facilities, parking, police protection, and protection of the tidepools, kelpbeds, and other rare and dwindling resources. If the State does not enforce Section 30010 which calls for compensation, we feel the Federal government should. Fourth , we have carefully analyzed the Acquisition Priority lists, and have given testimony as to specific parcels we feel should be given TOP PRIORITY, and specific proposals which we feel should be removed from the list or given a lower priority. For every parcel considered by the State in our area, we have given our reasons, based on technically competent input, for or against acquisition. I will had in our February 3» 1976 recommendations with this testimony. The main emphais is that we are as opposed to piecemeal beaches as we are to piecemeal planning, and would like to see an orderly, long-term acquisition program. MALIBU TOWNSHIP COUNCIL TO OCZM. NOAA, U.S. DEPARTMENT OF COMMERCE. 5/19/77 k Fifth , we are concerned that the California Coastal Commission espouses low- and moderate-income housing, but continues to grant permits for *fOOO- to 9000-sq-ft homes along the coast. We feel the latter is a perversion of princi- ple and will only aid in making communities like Malibu havens for the wealthy. The only slowdown in this so-called "Coastal Management Program" has been denial of massive or densely concentrated developments. The cumulative impact of many, many permits granted every week, has accelerated the pace of building in our community over the last 3# years. The DEIS should address Federally-regulated lending practices under the section on "Management Issues," or perhaps the sec- tion on "Funding." Sixth , relative to limiting growth on the basis of traffic impacts, we feel that substitution of public parking will not lessen destruction of coastal resources, but WILL IMPACT MORE HEAVILY. Statements about view sites, picnic areas, accessways, and public beaches MUST be accompanied by strong provisions for bus turn-arounds. The capacity of the Pacific Coaat Highway through the coastal area of the Santa Monica Mountains is already taxed intolerably on summer and holiday weekends. The only solution to prevent a demand in the immed- iate or long-term future for freeway-capacity highways is a VERY STRONG STATEMENT IN FAVOR OF MULTIMODAL TRANSPORTATION, AND A REJECTION OF PUBLIC PARKING ON Paci- fic Coast Highway or on beach parking lots. AGAIN, the Federal government can contribute to these objectives. We urge Federal support for an extension of bus service beyond Trancas Canyon, all the way to Point Mugu State Beach. It is highly likely that some of the funding for L.A. County and RTD buses i8 al- ready coming from the Federal government. In the future, it should be made available in coastal areas with very strong "conditions" attached. Why not a FEDERAL MANDATE and funds for buses and trams to areas of special biological significance, and to public parks and beaches. The buses should be equipped with carriers for bicycles and surfboards. We would save energy, decrease air pollu- tion and protect coastal resources simultaneously. Seventh , Page 8l refers to long-term losses. We are concerned about Malibu Lagoon, the last fresh-water — salt-water estuary in the 78-mile-long Los Angeles County coastline. It is partially owned by the State, and hopefully will come into total State ownership with three additional acquisitions. But we are having to fight for the very lives of nesting birds, marine life, and habitat. Why must it be implicit with every acquisition there must be a "development" plan? Why parking lots? Why not a FEDERALLY -MANDATED AND PROTECTED SANCTUARY? We feel that Federal agencies handing out grant monies for sewage treatment plants should also consider the impact of development outside the coastal zone on coastal re- MALIBU TOWNSHIP COUNCIL TO OCZM, NOAA, U.S. DEPARTMENT OF COMMERCE, 5/19/77 5 sources (Page 131 of DEIS) as are state agencies supposed to do. Malibu Lagoon is threatened by year-round discharge of treated effluent from a treatment plant upstream which serves rapidly growing interior valley developments. Two other Malibu coastal areas which should be protected from public development as much as from private development are the tidepools below Point Dume, and the natural beaches of West Malibu from Trancas Canyon to the Ventura County line. We could make many other comments, but should get to the question, "What is the Bottom Line?" The Alternatives posed on Page 137 to approval of the California Coastal so-called "Management Program" are to delay or deny if certain conditions are not met. I would suggest first that the Draft Environmental Impact Statement must address some of the deficiencies I have pointed out above. Most of all, a FOURTH ALTERNATIVE shaould be added, namely, that the Federal government delay or deny approval: "k. IF the State does not take urgency action to protect, PROTECT, fragile, biologically significant areas of the California coast." Hopefully, the Congress and the President will take immediate urgency action to fund a Resource Management Program and a monitoring system to ensure State of California compliance with this mandate. We support the efforts to date of all of the persons trying very hard to "save" our coast. We feel the inventory is complete, the planning is underway, but the actual protection is nowhere in sight. We thank you for holding an evening hearing to enable the working class to give testimony. Exhibits: Cover - Malibu Lagoon and Point Dume Tide pools Maps 1 through 6 at end May 19, 1977 MALIBU TOWNSHIP COUNCIL TO OCZM, NOAA, U.S. DEPARTMENT OF COMMERCE MALIBU TOWNSHIP COUNCIL TO OCZM 03 r i 03 3 O O O 0) .2 g» 00 03 <3J O c SI Q£ 03 fli •" > V. 03 J? I S 03 II en MALIBU TOWNSHIP COUNCIL TO OCZM i 6 -8 c TO 00 0> a _o 00 "ro *-> (Q o o 3 -Q 3 MALIBU TOWNSHIP COUNCIL TO OCZM CO *- C 3 O o 0) > c O O O fl> (J "U c 0) ro > fc *-> 1_ Li. 0) > *- o s CO «J O o MALIBU TOWNSHIP COUNCIL TO OCZM i a fO E -C o 00 3 LL TO o o 3 .a 3 O) MALIBU TOWNSHIP COUNCIL TO OCZM o -p-p go cs a m o •H.d 4- eg a 5*«m a o xtx) i O CD « co a) o o 4> u a coco o o f 0) o c CO o c co "re o o o5 8 a CO CO •a CD re c Q CD 3 MALIBU TOWNSHIP COUNCIL TO OCZM 3 J2 C 05 c V E c o '> c LU c "a /Is* * wrt-* A subsidiary of Dun & Bradstreet made a study of the business climate in the 48 contiguous states for attracting business. California was forty- seventh, next to last. Some of the obvious reasons are (1) lengthy and obstructionist procedures for obtaining permits. (2) Second highest taxes per capita. (3) Second highest unemployment tax charge to employers because of the giveaway eligibility standards. (4) Double tax on dividends received by a holding company from out-of-state subsidiaries. (5) Increasing property taxes on business. Etc, etc. DS C F BRAUN & CO J A Curran Dow Chemical canceled a $340 million chemical complex after spending $4.5 million and over two years to get four permits out of 65. The state lost a tax source, employment for thousands of construction workers and 1,000 industrial workers. This, in a state whose unemployment, 9.4 percent, is greater than the national average of 7.6 percent. Dow's withdrawal has made shock-waves throughout the nationwide business community. What board of directors in its right mind would decide on a project in California under the present administration? Greyhound and FMC have moved their headquarters out of the state. The Governor's reaction to the Dow affair was to produce lapel pins that read, "California Means Business." They should read, "California is Mean to Business." He should have fired Tom Quinn, the unqualified and obstructionist chairman of the Air Resources Board, as a meaningful gesture to the business community. Practically no one is unaware of the desperate need of the nation and the state for oil and gas. California is the nation's largest consumer of gas, using it for some 50 percent of all non-transportation energy needs. Deliveries have declined about 20 percent since 1972. A Stanford Research Institute study estimates that 76,000 jobs have been lost in California since 1972 as a result of the decreased gas supply. SRI predicts a loss of 800,000 jobs in the state by 1980 if new sources of gas are not found quickly. Oil needs are well known by every American. What is being done by our California bureaucrats to solve these problems? They are expending maximum efforts to worsen the situation. The oil and gas we need are in Alaska and offshore California. There are 26 trillion cubic feet of proven natural gas reserves in Alaska's North Slope as well as the many million barrels of oil. Can industry get anywhere with requests for LNG terminals and oil tanker terminals? Progress to date is minimal. As a result of pressure from California, Secretary of Interior Andrus just announced that lease of federal lands offshore California will be delayed until 1980 and one big area probably canceled. The May 18 edition of the Los Angeles Times quotes Bill Press, director of Governor Brown's Office of Planning and Research as saying, "They did everything California wanted them to do. It's like a breath of fresh air." I wonder whether the 800,000 that SRI predicted would be unemployed by 1980 will endorse that statement. I wonder whether the motorists lining up for $2 gasoline will agree. If the Department of Commerce wants a State Plan that will support the national interest, it should first of all reject the plan presently proposed. It should then put pressure on the Governor to replace the present commissioners with people who will give fair consideration to the interests of the United States, the energy needs of the country and state, and the employment needs of the state as well as the environmental needs. Then let this group prepare a plan with specific guidelines and principles. Failing this, California will become a sanctuary for blind spiders and rare species of mosquitoes, but no place for human beings to enjoy the standard of living we have today. DS C F BRAUN &. CO J A Curran C F Braun & Co feels that the Coastal Zone Management of the Department of Commerce •will be doing a disservice to the nation and to the people of California if it approves this State Plan as presently written. ^° C F BRAUN & CO ©c. ^J| X/s C. Norman Peterson Contractors May 23 , 1977 Ms. June Specht National Oceanic and Atmospheric Administration Office of Coastal Zone Management 3300 Whitehaven Street N. W. Washington, D. C. 20235 Subject: California Coastal Zone Environmental Impact Program Dear Ms. Specht: A recent notice was given in the Federal Register that the National Oceanic and Atmospheric Administration is receiving public and written comments regarding California's request for approval of its Coastal Zone Management Program. As Dillingham's West Coast industrial contractor, our firm is vitally interested in the balanced development of the California Coastal Zone. We have read the referenced environmental impact statement and strongly urge that you do not consider approval of the California Coastal Zone Program until clearer difinitions of the national interest and the siting of facilities necessary to meet other than local requirements are included. The State is currently following a "no growth" policy at all levels of government and we believe the administrative policies that the local A DILLINGHAM COMPANY 2430 WEST THIRD STREET LOS ANGELES CALIFORNIA 90057 (213) 388-1275 C. Norman Peterson Contractors Ms. June Specht Page 2. commissions must go through to produce a workable plan will provide business and other interests a much needed opportunity to produce a more balanced approach. A premature approval by your department would, we believe, have the effect of approving this no growth policy. We respectfully urge that you do not consider approval of the Coastal Zone Management Program on the basis of the very brief and preliminary environmental impact statement. Very truly yours, C. NORMAN PETERSON CONTRACTORS ftuart M. Butler Executive Vice President SMB/mth HOBBS-BANNERMAN CORPORATION ENGINEERS - CONSTRUCTORS 10332 PAINTER AVENUE. SANTA FE SPRINGS. CALIFORNIA 00670 TELEPHONE 213-944.0881 May 19, 1977 Department of Commerce United States of America My name is William B. Snyder, a native son of this area of Southern California, resident of the Whit tier area, Los Angeles County, employee of the Hobbs-Bannerman Corportion, an engineering and construction company for whom I speak tonight, as well as for myself, an individual. The records will show that I requested permission to speak before you ahead of this meeting date. My state - California - is asking for your approval of its Coastal Zone Management Program - so that it may go forward in conducting the affairs of business in this state, as stated in the California Coastal Act of 1976. To my knowledge, this act, as written at the present time, was only made available to the public to read about the first part of last month, April, and it is subject to change as it now stands before it becomes law. For this Federal body to approve this plan, as it is presently written, in my opinion, would be a mistake and the Department of Commerce should not grant its approval. Just one point - the national interest - is not spelled out clearly enough to comply with the federal act to justify its approval. This one point alone will open up the flood gates for numerous law suits that will surely result if approval is granted at this time. Not only is national interest slighted but economic interest is of little interest in this act. California is only a part of these United States and while it is an important state, Page 2 we are not fully independent of the other states and the world, so as to not recognize industry must not be crippled any more than it is in trying to improve its facilities for future growth by lack of our state government cooperating. I believe I am a part of a large group of citizens who protest the negative approach some of our state leaders have taken especially to our national and state energy needs we face today and tomorrow in our country. To approve this act of my state as it now stands, I repeat, would be a mistake on your part. This will only add to the excessive restrictions that already are discouraging to both the big and little business concerns that are battling to stay alive. A prime example of this is the recent attempt by a major oil company to bring ashore discovered outer continental shelf oil and gas in Santa Barbara County, even after a special county election approved its actions. While it is a recognized fact that the OCS field, off southern California and the Santa Barbara Channel can be a very productive area, those oil companies holding leases are being denied help, much less any cooperation, from state authorities. We can use the oil and gas that is there - right in our own back yard - to help our shortages today and in the future. Yet, our state government, so far, has not been willing to recognize or admit it can be produced for the benefit of national interest. Sure, we all know eventually the Alaskan Oil will be coming down to the lower states, but we should recognize that much of this will be sold to inland states, badly in need of more oil and gas. Page 3 We all want clean air, blue clear waters and we will have these conditions in the near future if we have faith in business leaders. The Coastal Commission powers are unbelievable, as is, and in its present thinking can and will set this state and our national interest back many years. Yes, there is a growing number of concerned citizens who are starting to stand up and are willing to fight hard, if necessary, to restore not only a healthy environment, but a business climate that should be more attractive to all. Frankly, at the present time, the federal government would be unwise to approve a partnership with my state, under existing conditions, until more consideration is given to uniting federal and state lands. Too many industrial developments could be slowed, if not stopped, by such action. As a citizen I am not here to apologize for my country's progress in the past, nor am I willing to accept less if we can provide more by constructive thinking, planning and working for a greater America. Again, I urge your supporting our national interest by withholding approval of our present Coastal Zone Management Program, as it is presently presented to you. Respectfully yours, William B. Snyder 10332 South Painter Avenue Whittier, California 90670 TESTIMONY FOR DEPARTMENT OF COMMERCE PUBLIC HEARING ON THE COASTAL ZONE PROGRAM FOR THE STATE OF CALIFORNIA by Gene Bowman Vice President of Operations Drilling Fluid Specialists, Inc. El Segundo, California I'm Gene Bowman, Vice President of Operations for Drilling Fluid Specialists, Inc. of El Segundo, California. We are a service group to the oil and gas drilling industry. My understanding of this hearing is that it is to help you gentlemen of the Department of Commerce decide whether or not to grant Federal approval of the State of California Coastal Plan. Most of us look at projects and make decisions according to the background of our work. When I am presented with a contract for approval, my first question is, what are the terms of the contract? Therefore, in looking at the California Plan, I attempted to answer this question. The Department of Commerce published it's Environmental Impact Statement around the 10th of April, 1977. That statement is the basis of our hearing today. But , subsequent to that Environmental Impact Statement, I find that on April 27, 1977, the State circulated a Revised Draft of Local Coastal Program Regulations, Appendix 7 . Page two Then , even later on May 10, 1977 , there was another rewrite of Appendix 7, called the Final Revisions to Draft Local Coastal Program Regulations. I call your attention to the fact that even this last rewrite clearly states a revision to a draft - it is not even a revision to a regulation. Again , on May 2, 1977 we find more changes to the Program. The State revised the Interpretive Guide- lines in Attachment E. Guidelines 1, 2, 5, 6 and 7, were revised. There are only 7 guidelines and 5 of them were revised. The revision I saw had lined-out sections, typed-in inserts, and hand-written correc- tions. It didn't look too final to me. Even this version was not approved by the State Coastal Commission. It may have been approved day-before-yesterday at the Coastal Commission's meeting at 2:00PM in the Hilton Hotel in Long Beach. It must be concluded that I cannot answer the question - what are the terms of this Coastal Program. The Environ- mental Impact Statement was made on one stage of evolution of the California Plan, but not the current plan because it has changed. Gentlemen, I'm not too sure what Federal procedures are, but if one of our salesmen laid a contract on my desk for approval, then told me that he could not tell me what the major provisions were, I would laugh him out of the room. Likewise, it does not seem prudent to me for you to approve a plan that is undefined. How can you determine if the Federal interest will be protected when you can't determine the plan? v.- Page three From a business man's point of view, the California Coastal Plan looks like it will be unduly restrictive. Many small businesses will perish because they cannot cope with the very general policy statement and wait the long delays for approval on a case by case exam- ination. Big business, which provides many of the jobs and subcontracts for the area, will have a much reduced activity, especially if operations involving Federal lands and the O.C.S. are stopped. If you give Federal approval at this time, the State will have no incentive to make their policies show a positive national interest and you would make Federal lands subject to regulations which were not even issued at the time of this Environmental Impact Statement. I ask that you not approve the California Coastal Program. 'hOrx4i^> Gene Bowman /7, /f 7? DaVe MY NAME IS GENE BOWMAN. I AM HERE TODAY REPRESENTING THE LONG BEACH ARfA CHAMBER OF COMMERCE. THE CHAMBER IS A STRONG ADVOCATE OF "HOME RULE" AND IT IS VERY REFRESHING TO US TO NOTE THAT THE PROGRAM ALSO EXPRESSES THIS VIEWPOINT AND LISTS, IN CHAPTER 7, PAGE 47, FOUR VALID REASONS WHY. BEGINNING ON PAGE 48, WE ARE TOLD HOW TO GO ABOUT PREPARING OUR LOCAL PLAN AND THE OPTIONS THAT ARE AVAILABLE. HOWEVER, WHEN IT COMES TO THE TIMING, UNDER SUBHEADING "SCHEDULE" ON PAGE 48, IT STATES, "THE COASTAL COMMISSION WILL ADOPT A SCHEDULE FOR PROCESSING LOCAL COASTAL PROGRAMS WHICH CANNOT BE REQUIRED TO BE SUBMITTED BEFORE JULY 1, 1978, OR AFTER JANUARY 1, 1980. PROGRAMS ARE TO BE COMPLETED NO LATER THAN JULY 1, 1980, AND CERTIFIED NOT LATER THAN DECEMBER 1, 1980." YOU ARE SITTING HERE TODAY CONTEMPLATING WHETHER OR NOT TO APPROVE A PLAN WHICH GOVERNS THE DESTINY OF OUR COMMUNITY. A PLAN WHICH: FIRST, THE COMMISSION IS STILL REVIEWING AND HAS NOT ADOPTED THE "DRAFT LOCAL COASTAL. PROGRAM MANUAL" (APPENDIX 7) WHICH IS SUPPOSED TO TELL US HOW TO PREPARE A LOCAL PLAN; SECOND - OUR COMMUNITY HAS NOT EVEN STARTED TO DRAFT ITS PLAN; THIRD - THE EARLIEST OUR PLAN CAN BE SUBMITTED IS JULY OF NEXT YEAR; AND FOURTH - THE PLAN IS NOT REQUIRED BY THE COMMISSION BEFORE JANUARY OF 1980, OVER TWO AND A HALF YEARS AWAY, AND DOES NOT HAVE TO BE APPROVED BEFORE DECEMBER OF 1980, OVER THREE AND A HALF YEARS AWAY. PAGE 2 GENTLEMEN, THE FIRST RULE THAT YOU LEARN AS A LOCAL INDEPENDENT BUSINESSMAN IS - THOU SHALT NOT WRITE BLANK CHECKS! IF YOU APPROVE THE CALIFORNIA COASTAL MANAGEMENT PROGRAM BEFORE OUR LOCAL PLAN IS SUBMITTED AND APPROVED, YOU HAVE GIVEN THE COMMISSION A STRANGLE HOLD AND COMPLETE POWER OVER OUR COMMUNITY. THE PLAN SAYS THAT THE COMMISSION MUST - AND I QUOTE, "EITHER APPROVE OR DISAPPROVE THE PLAN, IN WHOLE OR IN PART." IT IS RECOGNIZED THAT CALIFORNIA PROGRAMS IS ALREADY FULLY IMPLEMENTED AND WORKING AND FEDERAL APPROVAL WILL NOT CHANGE THIS. HOWEVER, IT IS ALSO REALIZED THAT FEDERAL APPROVAL CARRIES WITH IT 50% FEDERAL FUNDING OF THIS STATE PROJECT. AS BUSINESSPEOPLE IT SEEMS ALMOST CIRMINAL TO US FOR YOU TO USE OUR FEDERAL TAXES TO SUPPORT AN UNDEFINED STATE PROGRAM WHICH IS WRITTEN IN SUCH A MANNER THAT IT MUST WORK TO THE DETRIMENT OF ALL CALIFORNIA BUSINESSES. THE LONG BEACH AREA CHAMBER OF COMMERCE REQUESTS THAT YOU NOT GIVE THE CALIFORNIA COASTAL COMMISSION A BLANK CHECK TO CONTROL OUR COMMUNITY. WE REQUEST THAT YOU NOT APPROVE THE CALIFORNIA COASTAL MANAGEMENT PROGRAM. orient by George Castagnole 3C0 Jinerio Dr . be lit c Br rDcrs. , Cci My name is George Castagnola. I am from. Santa Barbara, and I come from a family that has fished the Santa Barbara Channel commercially for three genera- tions — and still does. I am here to ask you not to approve the Coastal Zone Management Program as it now exists. In fact, I hope you never approve anything that will give the State Coastal Commission any control over commercial fishermen. Or any other kind of fishermen, for that matter I I can understand that there must be rules and regulations that control fishing in federal and state waters . Fishermen have lived and worked with such regulations for years. We have not always agreed with every section of every law. But, for the most part, we could see that the laws were essentially fair and necessary. And, for the most part, the regulations were imposed by agencies that knew something about fishermen and the fishing industry. I want to point out, however, that the State Coastal Commission is something else.' It has no knowledge or experience with the fishing industry. 'But I am sure they would declare that activities of the fishing iadusi;ry would have impact on the Coastal Zone — and thus would insist that concurrence by the Coastal Commission be required before any federal license or permit was issued. Page 2 You must not accept the vague and general guidelines the Coastal Commission submitted as a so-called Plan for your approval. Instead, you must delay any approval until a clear and complete Plan is developed — a Plan that spells out exactly what the Coastal Commission can and cannot do, particularly as it affects the fishing industry. In the current tuna controversy, we have seen how an entire segment of the fishing industry can be wrecked by precipitous action brought on by pressures from well-meaning but economically blind environmentalists. Judging from past actions of the State Coastal Commission, I am sure there would be perpetual controversy if they had to approve the permits and licenses required by com- mercial fishermen. It is obvious that the Coastal Commission has not completed its Plan. Until they do — until their involvement in controls affecting the fishing industry is clearly limited and defined — I urge you not to give them the pig-in-a-poke approval they are asking for. Thank you. C r 'i STAL Z .hL" rROGFv/'J' I'd Ii!~ STATU ' I" CALIFORNIA I;--a;;,.i: ct c"::.L':e - lay 1- . ?.77 Gentlemen: Ay name is Like Cha ; man and I am a Technical Service Engineer for the V.'estern Area, Oilfield 1'roducts Division of Dresser Industries 1 am here as a concerned American citizen, not speaking on behalf of Dresser Industr5.es. The Federal act as amended in 1 70 states in section 306 c (5) that prior to the Secretary of Commerce granting approval of a state coastal program, he shall find, among other requirements, that the state program provides for adequate consideration of the national interest . As a national interest it makes rpecific reference to having an adequate process to site energy facilities and to consider interstate energy plans. Adequacy in plans to protect the national interest in energy and trade is an extremely important element of the state coastal plan because once there is federal approval, no federal permits or licenses needed for activity in the state or in federal waters offshore can be obtained from any federal agency unless the application first certifies compliance with the approved state ccastai program. Also a copy of this certification must be furnished to the state, who has the opportunity to disagree, thereby stopping the federal permit. I would like to point out that there are about 7* pages in the 430 plus page environmental impact statement devoted to national interest; from page 69 to 76. Uhen this section is read there is only one basis for considering national interest in the California law. That reference is to Chapter 1 of the California law which is only the findings of the legislature^ and Chapter 3, which is the state policy chapter, does not mention protecting the national interest. Six pages of the 7-2 pages are devoted to discussing the National Coastal Zone Act rather than compliance by the state. l.ere arc the regulations of the State Coastal Zone Commission saying certain things will be cone to protect the national interest: There are ruite a number of items discussed to protect the state's interest. -On page 7 J it says even though federally owned lands are excluded from State management they must be managed so that they are consistent with the State Plan. -On page 73 it says the state will monitor all activities of the government on federal lands that may effect the coastal zone. -On page 74 it has a long list of all the federal licenses and permits that cannot be issued without state certification. -On page 75 it makes certain no local plan will be approved by the state unless they incorporate state air standards in their programs. And I could go on and on. But looking at the other side of what it does say about protecting the national interest on its energy requirements : -On page 7 it reads, and I quote, "The Coastal Act's energy policies, especially important because of the Department of the Interior's leasing of outer continental shelf (CCS) areas for oetroleum exploration and extr-cticn, take into account California's role in national energy supply. The energy policies are based on a willingness to respond to a broader state role in meeting the "ation's energy requirements if such a need is clearly identified and if California's environmental, economic, and legal interests are properly olannec for and protected." Those po-icies fall under Chapter 3 Article 7 of the l c ;76 California Act. I wish there was time to go through the whole thing point by point but in the interest of time, let me just cover ci 1 and gas development. This policy exoands to a greater role for the state when national need is shown and is conditioned upon. (1) Co soiidation c c facilities to the maximum extent possible unless it TTouTc! ca^rs^e adverse environmental effects. ( M I ! s ;ig environmentally safe and fe.-sible subsor con r 1c Lions when driving platforms would degrade coastal visual quali ties . Nowhere does the policy on industrial development affecting the coastal zone say that national need will be considered, but it does condition this development upon consolidation of facilities and the visual quality of the coastline for the benefit of the state. It may turn out that the California program does protect the national interest but when the national need for energy is conditioned upon the visual qualities of the coastline I would like to think the Secretary of Commerce would want to see something more positive and concrete than what is in this impact statement and the California law. 1 think this is especially true considering that the Department of Commerce has the basic responsibility of assuring the minimum need for overriding the state where the controversy can create mixed views between federal agencies and no permit even if he does override the state. In summary I would like to say, in real estate nothing is ever agreed upon by the parties concerned unless it is in writing. The California Lnvironnental Impact Statement protects the state's interest in writing but does not do the same for our national interest. I do not icnov; about the Secretary of Commerce, but I, as an American citizen, do not hand out signed blank checks to provide funds for something that will be used against me. Thank you for the opportunity to provide testimony here today. -- / MY NAME IS ARNE KALM, CHAIRMAN OF OCEAN SCIENCE & ENGINEERING, INC. IN LONG BEACH. AS AN INDEPENDENT BUSINESSMAN, I FEEL IT IS IMPERATIVE THAT I HAVE A REASONABLE VOICE IN HOW MY COMMUNITY IS RUN. EVIDENTLY MOST OF THE CALIFORNIA COMMUNITIES AGREE ON THIS MATTER. PAGE 48 CONTAINS AN OFFER FOR THE COASTAL COMMISSION TO PREPARE OUR LOCAL PLAN. IT STATES. "A LOCAL GOVERNMENT HAS THE OPTION REQUESTING ... ITS PROGRAM PREPARED BY THE COASTAL COMMISSION." PAGE 53 LISTS 68 CITIES AND COUNTIES THAT, ACCORDING TO THE LAW, "WILL PRODUCE A LOCAL COASTAL PROGRAM" OR WILL ASK THE STATE FOR HELP. TO MY KNOWLEDGE, ONLY ONE CITY (MARINA IN MONTEREY COUNTY) HAS EVEN EXPRESSED AN INTEREST IN STATE HELP. I AM NOT A TOTAL BACK-TO-NATURE ADVOCATE NOR AM I A TOTAL INDUSTRIALIST. I BELIEVE THAT THE INDEPENDENT BUSINESSMAN REPRESENTS THE MEDIAN AND BACKBONE OF OUR SOCIETY. WE MUST HAVE SOME INDUSTRY AND BUSINESS IN ORDER TO MAKE A LIVING. WE MUST HAVE RESIDENTIAL AREAS WITHIN A REASONABLE DISTANCE OF OUR WORK. THERE MUST BE FARMLAND TO PROVIDE FOOD. AND, WE APPRECIATE RECREATIONAL AND NATURAL AREAS TO BE ABLE TO ENJOY WITH OUR FAMILIES. IF THE ECONOMY OF OUR LOCAL COMMUNITY CHANGES AND WE NEED AN INDUSTRIAL AREA NOT PREVIOUSLY CONTEMPLATED, OUR COMMUNITY COULD DIE. IF WE ARE FORCED TO ACCEPT IMUSTRHTO-QUR ECONOMY IS PRIMARILY NON-INDUSTRIAL, PAGE 2 WE WILL SUFFER. I AM NOT WILLING TO CONCEDE THAT THE COASTAL COMMISSION CAN MANAGE A LOCAL COMMUNITY BETTER THAN ITS RESIDENTS, FEDERAL APPROVAL OF THE CALIFORNIA COASTAL MANAGEMENT PROGRAM,BEFORE A SINGLE COMMUNITY HAS DRAFTED OR SUBMITTED A LOCAL PLAN, ENDORSES THE PLACEMENT OF THE ENTIRE CALIFORNIA COASTLINE IN THE HANDS OF THE COASTAL COMMISSION AND NOT IN THE HANDS OF LOCAL GOVERNMENTS. ONCE YOU APPROVE AND GIVE THE STATE 50% FEDERAL FUNDING PLUS COMPLETE CONTROL OF FEDERAL LANDS, THERE IS NOTHING LEFT. YOUR APPROVAL AT THIS TIME LEAVES LOCAL COMMUNITIES WITH ABSOLUTELY NO BARGAINING POSITION WITH THE STATE. WITHOUT FEDERAL APPROVAL THERE ARE AT LEAST A FEW PROJECTS INVOLVING FEDERAL LANDS THAT MIGHT PROCEED WITH ONLY FEDERAL PERMITS ( IN NATIONAL PARKS AND REFUGES, NATIONAL FORESTS OR SMALL FEDERAL TRACTS IN EACH CITY AND AROUND FEDERAL BUILDINGS, AND OFFSHORE LANDS IN FEDERAL WATERS) Mil II B l l 'i/ I M S INVOLVE SUCH T4II.WGS- AS Wm a&BEE&B£& mM&& s AN D F X PftlWIfMM Khl.KbAIH.IN hA CILITICS A ND B E ^MM^l ^ ^ MEaEB MIM E. I URGE YOU NOT TO LEAVE US TO THAT FATE, NOT TO APPROVE A PLAN WHICH HAS NOT BEEN WRITTEN - I URGE YOU NOT TO APPROVE THE CALIFORNIA COASTAL PROGRAM AT THIS TIME. May 19, 1977 Mr. Grant Dehart Pacific Regional Manager Office of Coastal Zone Management 3300 Whitehaven Street, N.W. Washington, D.C. 20235 Dear Sir: The people of this state have paid a very considerable sum to these commissions over the past four years for a coastal plan and they deserve one promptly. The excess requirements and regulations of this document seem designed to harass, to obstruct and to impede the rapid production of a coastal plan rather than to expedite the development of one. Until a plan is developed, the commission's decisions should be based on statewide significance, not the biased whimsy of a few commissioners. Yours truly, / Charles R. Nelson 6935 Pacific Playa del Rey, California 90291 t /T^ May 19, 1977 Mr. Grant Dehart Pacific Regional Manager Office of Coastal Zone Management 3300 Whitehaven Street, N.W. Washington, D.C. 20235 Dear Mr. Dehart, The D.E.I.S. prose and ideas are beautiful. The problem is in the facts and the record. The record is four years of these commissions protecting the wealthy, the special interest (He can't build across the street from me type) , the selfish interest (No more people on my beach type) , the elitist and the professional poverty types from new neighbors and the public along their coastline. Plus zoning the coastline to wealthy residential with all manner of phony gimmicks, excuses and harrassment of the property owner. Also, they were paid for four years to produce a coastal plan. They did not do so. Deliberately so we feel. So, if the Federal government is to be part of this charade, the act should be cleaned up thoroughly. Now to just one item. The parking requirement appendix on page E 46 . These requirements are based on bias and ignorance and for collusion and should be eliminated completely and immediately. Herbert Eilertsen 112 Culver Boulevard Playa del Rey, California 90291 JOHN R. SWANSON P. O. Box 922 Berkeley, California 94701 H*A 3-i, V\ry (^^(^Ja^avv^aa-4^ 4-e-tfaX <6" &U/>JujiU^ Mm#\, &t ^U\«,Wa *i */vUt>*U\ -^, "^ WW ^mJL m*0 J««^#^A>oujl Juuv+hL S^h) gjtxU. /tvu-yv W Mo %fcww*k ^Juikw. «<&£»£. ^ ^*M*H(/ " k Address reply to: 19 May 1977 P.O. Box 1533 Beverly Hills, California 90213 Mr. Grant Dehart Office of Coastal Zone Management Department of Commerce 3300 Whitehaven Street, N.W. Washington, D.C. 20235 Dear Mr. Dehart: The Draft Environmental Impact Statement on the California Coastal Management Program (CCMP) has overlooked a significant Federal agency inconsistency. An essential element of the CCMP is the planned research on the sea otter (Enhydra lutris) by the California Department of Fish and Game (CDFG). The Marine Mammal Protection Act of 1972 placed E. Lutris under the control of the Fish and Wildlife Service (FWS) of the U.S. Department of the Interior. The CDFG requested a research permit on E. lutris in 1974. The Federal government has to this date not resolved that request to the satisfaction of the State of California. In fact, the U.S. Marine Mammal Commission (MMC) has recommended to the FWS that E. lutris be reintroduced into two or more locations in the State of California, completely contrary to the desires of the people of the State of California. Such action would be a disaster to the CCMP and to fishery resources which are important to the people of the State of California. These resources are important for recreational and/or commercial reasons and consist of abalone, Pismo clam, urchin, oyster rack, red and rock crab fisheries. Other important resources which may be precluded by the spread of E. lutris are Dungeness crab and spiny lobster fisheries. It is imperative that the MMC and the FWS allow the CDFG to perform research on E. lutris so that the people of the State of California will have the scientific knowledge necessary for wise management of our own resources. It is equally imperative that the FWS make no translocations of E. lutris individuals until sufficient data are available to allow informed decisions to be made. It is urgent that the Office of Coastal Zone Management take the necessary action to insure consistency of Federal agency action. I would appreciate being advised of what your actions will be and when you plan to initiate those actions. Sincerely, f ZPxuJL *YU^eU~- Paul Nordin, PhD, Executive Secretary -HOOD CORPORATIO FELINES PLANT PIPING CONDUIT CONSTRUCTION INTERNAL PIPE CLEANING P.O. BOX 4368 • 8201 SO. SORENSEN AVE. • WHITTIER, CALIFORNIA 90607 AREA CODE 213 685-5640-945-1411 • California State License No. 186761 A TELEX 67-7664 May 27, 1977 Mr. Grant Dehart Office of Coastal Zone Management 3300 Whitehaven Street, M.W. Washington, D.C. 20235 Dear Mr. Dehart: This letter furnishes to you our comments on the Department of Commerce's Environmental Impact Statement on the State of California Coastal Management Program. We urge you NOT TO APPROVE the California Coastal Program. Your approval will provide Federal funds to support a California Law which is anti-business, anti-national interest, and anti-competitive enterprise system. Your approval will also give the law increased scope, stature and jurisdiction since it will subject all Federal Lands, onshore and offshore, to State approval and regulations. We do not desire to see the California Plan in its present form extended to Federal Lands. The Hood Corporation is one of the State and Nation's largest specialty construction groups. Although we are commonly termed a pipeline contractor, the bulk of our work is for State, municipalities, counties, and utility companies, in installing underground systems. Included are sewer plants and lines, water lines, cables for power and communication, water pump stations, and complete underground utility systems for new housing and commercial developments. The adverse effects of your approval of the California Coastal Plan on our type of business are discussed below. I understand that at the Department of Commerce Hearing in Los Angeles on Thursday, May 19, 1977, that the City of Los Angeles testified against approval of the State Coastal Program. One of their reasons was that the Environmental Impact Statement prediction of added costs to the City of Los Angeles by this plan v/as $100,000 per year. The city did it's own estimate of increased expenses involved and their estimate was $500,000. The City of Los Angeles is one of our most active and largest accounts. Transcribing this into its effect on our business, one would have to expect that there will be roughly five times the cost and delays in approval and permitting projects which will result in fewer of these important community projects being done. Should you approve the California Plan, you would be condoning excessive control and red tape procedure, subjecting the Federal OOD CORPORATION Grant Dehart Page two Lands to similar treatment, and supporting these inequities with Federal funds. There would be no incentive for a simpler and less restrictive implementation on the part of the State. We also do work for some of the California petroleum energy supplying groups such as refineries, product lines, and processing facilities. But, because the California Coastal Plan essentially disregards the nations energy situation, very little of this work is being done today. The California Coastal Plan goes into great detail to tell you what you can not do. Before approving this plan as being satisfactory on a national basis, you need a contract that also specifies the State's specific intent and positive action that will be taken toward protecting our national interest. With the minimum and inadequate wording now in the Plan, the State can, will, and has used their own diverse interpretation of national interest. As an example of the above, may I refer you to the testimony of Bill Press, Director, Governor's Office of Planning and Research, State of California, which he gave before the Senate Energy and Natural Resource Committee on April 25, 1977. Under subsection "California's Position" in reference to development of offshore oil and gas resources, he states " — such development may be necessary-", "OCS development must proceed in a manner consistent with... a States Coastal Planning Program"; "consistent with environmental programs". To me he is stating very plainly that State programs and environment get 100% priority; the President of the United States is wrong; we only may need energy; the State of California will interpret and decide that. What happened to the national interest that is required by the Federal Coastal Plan prior to approval of a State Plan? We respectfully request that you not approve the California Coastal Plan at this time. This plan is in the early development stage and will not be complete in it's major provisions for at least two years. It is unduly restrictive, and does not have adequate national interest provisions and should not be applied to Federal lands. Mery truly yours, HOOD CORPORATION / , R. E. McGraw Vice President REM/ by May2U, 1977 Mr. Grant Dehart Coastal Zone Management 3390 Whitehaven Street, N. W. Washington, D.C. "0235 Dear Sir» Please do not approve the California Coastal Management Program it its present form. It is evident the California Coastal Com- mission has not followed its own guidelines and either is not capable of doing so or is not dedicated to its own objectives. Our beaches, our marine life, our beach flora and our tidal waters must be protected. The present plan does not make pro- vision to effectively provide such protection. There has been a greatly increased number of developments and individual houses built during the past five years under Coastal Commission permits. To my best knowledge there has been little or no effort made to protect the beaches and marine environment in the immediate area of the new building where access has been newly opened to the public. One has only to walk along our beaches as I have for many years to see the increased debris, oil and tar to realize the full extent of the pollution and fouling of our shores. It is sad to see the deterioration. It (our beaches) is in the worst con- dition of my life. It is my recommendation that serious consideration be given to a Condemnation-Purchase plan to acquire all water front property starting at San Pedro and Long Beach for the State of California. All private property to be condemned along (continuous) the coast from San Pedro north and from Long Beach south simultaneously and progressively as funds are available. Land and water ways necessary for shipping, fishing and transportation industries to be excepted. This plan would make available land which could be reclaimed and developed for public use. It would be centrally located for maxi- mum access and useage. The same plan could be used in all metro- politan areas along all of the United States coast lines. Part of the plan must include supervision and maintenance of all areas open to the public. Public education is critical, if we are to preserve the fragile shore and marine environment. Obviously overburdening the beaches with an unsupervised public can be equal- ly destructive as over development by private interests. sincerely 1036 Carol Drive Los Angeles, Calif. 90069 VtJtri*- v i 1 s o n PENN STATE UNIVERSITY LIBRARIES DDDD7D c iMDD3