### Session No. 28

**Course Title: Coastal Hazards Management**

**Session Title: Federal Policy I: The Role of Federal Policy; National
Environmental Policy Act; Clean Water Act**

**Author: Professor David J. Brower, University of North Carolina at
Chapel Hill**

> **Time: 50 minutes**

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**Objectives:**

28.1 Understand and discuss the general role of federal policy in
managing the coastal zone, and some of the reasons for federal
involvement in mitigating the impacts of coastal hazards.

> 28.2 Understand and discuss the National Environmental Policy Act and
> its role in mitigating the impacts of coastal hazards.

28.3 Understand and discuss the Clean Water Act and its role in
mitigating the impacts of coastal hazards.

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**Scope:**

Previous sessions have discussed the existing institutional framework
(federal, state and local) that governs the coast.

The purpose of this session and the next two sessions is to understand
the role of federal policy in the governance of the coast in general, as
well as the role of specific federal policies in mitigating the impacts
of coastal hazards.

This session will deal with two national policies that do not solely
target the coastal zone, but which involve environmental issues of
importance to the entire nation \-- the National Environmental Policy
Act (NEPA) and the Clean Water Act (CWA).

**Readings:**

*Instructor and Student Readings:*

Findley, Roger W., et al. 2004. *Environmental Law in a Nutshell*, 6th
Edition. St. Paul, MN: West Publications, pp. 45-46; 21-25; 28-30;
40-44.

Beatley, Timothy, et al. 2002. *An Introduction to Coastal Zone
Management*, 2nd

Edition. Washington, DC: Island Press, pp. 101; 120-123.

Burby, Raymond J., ed. 1998. *Cooperating with Nature: Confronting
Natural Hazards with Land-Use Planning for Sustainable Communities*.
Washington, D.C.: Joseph Henry Press, pp. 57-65.

French, Peter W. 1997. *Coastal and Estuarine Management*. New York:
Routledge, pp. 191-208.

National Research Council Committee on Watershed Management. 1999. *New
Strategies for America's Watersheds*. Washington, D.C.: National Academy
Press, pp. 271-273; 283-288.

Kalo, Joseph J. 1990. *Coastal and Ocean Law*. Houston, TX: John
Marshall Publishing Co., pp. 163-167.

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**General Requirements:**

As with other session of this nature, Session 28 provides detailed
information regarding provisions in the legislation enacting NEPA and
the CWA. This material is essential to a broad understanding of these
two very important programs in coastal management. However, the
instructor may choose to assign the material as preparatory reading for
class, and/or cover the material fairly quickly during the lecture. The
instructor may then wish to devote the bulk of classroom time on
discussion and debate among the students regarding the merits and
weaknesses of the respective programs.

Alternatively, the instructor may choose to have the students (or teams
of students) make presentations on each of the policies, programs and
agencies covered during sessions 28, 29, and 30. The following outline
suggests a format for student presentations:

1.  The name of the administrating agency or agencies.

2.  The official citation of the statute and regulations.

3.  The purpose of the policy, program or agency

4.  What does the policy attempt to do? What does the policy want people
    to do differently than they have in the past?

5.  How does the policy work? How does it get people to act differently
    than they have in the past?

6.  How could the policy be used to mitigate the impacts of coastal
    hazards even though this may not have been the intent when it was
    adopted?

7.  A discussion of the viability of the policy. Has it worked in the
    past to accomplish its purpose? Can it play an important role in
    mitigating the impact of natural hazards?

The instructions for the student presentations are listed in Handout
28.1, available for copying and distribution to the students. The
handout can be found in Appendix A to this session.

**Power Point Slides:**

**PowerPoint 28.1** Multi-jurisdictional Map

**PowerPoint 28.2** The National Environmental Policy Act

**PowerPoint 28.3** Robertson v Methow Valley Citizens Council

**PowerPoint 28.4** Clean Water Act

**PowerPoint 28.5** Section 404 of the Clean Water Act

**PowerPoint 28.6** Wetlands absorb floodwaters

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**Objective 28.1 Understand and discuss the general role of federal
policy in managing the coastal zone, and reasons for federal involvement
in mitigating the impacts of coastal hazards.**

**Requirements:**

The content should be presented as lecture, supported by PowerPoint
slides. Class discussion should be encouraged. Suggested questions to
prompt class discussion are included at the end of this Objective.

The following slide will be used during this objective:

**PowerPoint 28.1** Multi-jurisdictional Map

**Remarks:**

## The Issue of Boundaries

-   **Review Session 12** to remind the students that ours is a
    **federal system of government** that involves one national
    government, fifty state governments and, through the states, a large
    number of local government.

-   **Review Sessions 13** and **26** briefly to remind the students
    that managing the coast is a complex activity and that there are a
    great **many institutions** involved.

-   Refer to **page 50** of ***Environmental Law in a Nutshell*** from
    the Readings. The authors remind us that our country is made up of a
    large number of units of government, each with its own geographic
    boundaries. For the most part, these **geographic boundaries bear no
    relationship to environmental or natural boundaries**.

-   When political boundaries do follow natural boundaries, they often
    split an ecosystem rather than isolate it (for example, a boundary
    going down the middle of a river splits the river basin into two
    political jurisdictions, rather than creating a rational integrated
    environmental unit).

-   Environmental problems generated in one jurisdiction often have
    impacts on other jurisdictions.

> **\[PowerPoint 28.1 Multi-jurisdictional Map\]**

-   Use the map in *PowerPoint 28.1* to demonstrate the multiple
    jurisdictions that exist in the coastal zone, and ask the students
    to discuss **what sorts of** **environmental problems can cross
    jurisdictional boundaries**. The most obvious problems involve
    pollutants carried by the air and by water.

-   At the **river basin scale**, environmental problems can be
    generated or exacerbated in one small area, but can affect the
    entire river basin.

    -   Ask the students to discuss some of these river basin issues.

-   Animals do not understand or heed political boundaries, and
    **wildlife** often crosses jurisdictional boundaries. Wildlife
    corridors are frequently bisected or interrupted by artificial
    barriers established by humans (for example, bridges, roads,
    fences). These obstacles can interfere with natural migration or
    patterns of movement for many species of wildlife.

-   Encourage discussion on the **\"race to the bottom\"** issue, in
    which local governments and/or states are encouraged to reduce their
    concern for the environment by their desire to attract development
    and hence enhance the tax base.

    -   The instructor might also encourage the students to discuss the
        responsibilities of states with resources such as the coast that
        are used by people from many other states.

# [A Policy Mosaic]{.underline}

-   The coast is governed by a **"policy mosaic"** made up of federal,
    state and local polices.

-   **Direct coastal policy** has been formulated to directly affect the
    coastal zone, to the exclusion of non-coastal areas.

    -   *Examples* of direct policy include

        -   Coastal Zone Management Act

        -   Coastal Barrier Resources Act.

-   Other policies are simply **connected with the coastal zone,** in
    that their affect applies generally, and includes the coastal zone
    (although not the coastal zone exclusively).

    -   *Examples* include:

        -   National Environmental Policy Act

        -   Clean Water Act

        -   Disaster Mitigation Act.

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-   **De facto coastal policy** includes those policies that have been
    formulated for a purpose unrelated to the coast (e.g. raise money,
    protect water quality, build roads, etc), but which in fact affect
    the coast in what may be quite unintended ways.

-   All of these types of policy are found at the national, state and
    local levels. This session and several subsequent sessions will
    address national policy.

Why should the federal government be concerned with mitigating the
impact of coastal hazards?

-   The instructor may wish to ask the students to offer some reasons
    why they think the federal government should be interested in
    mitigating the impact of coastal hazards.

    -   Some suggested reasons include:

1.  to protect a resource that is valued by the whole country

2.  to alleviate suffering by individuals

3.  to help state and local governments faced with fiscal problems as
    the result of a disaster

4.  to save federal dollars.

-   The remainder of this session and subsequent sessions will provide
    examples of federal policies that address these concerns.

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**Objective 28.2** **Understand and discuss the National Environmental
Policy Act and its role in mitigating the impacts of coastal hazards**.

**Requirements:**

The content should be presented as a lecture supported by PowerPoint
slides and class discussion. Alternatively, the material may be
presented as a student presentation followed by class discussion.

The following slides will be used during this objective:

**PowerPoint 28.2** National Environmental Policy Act

**PowerPoint 28.3** Robertson v Methow Valley Citizens Council

**Remarks:**

## What Does NEPA Do?

**\[PowerPoint 28.2** **National Environmental Policy Act\]**

-   The **National Environmental Policy Act** (NEPA) is probably one of
    the best known and frequently debated policies of the federal
    government.

-   The **primary purpose** of the NEPA is to require **federal agencies
    to** **take environmental issues into consideration** when they are
    making significant decisions.

-   The policy requires that the agency prepare a detailed explanation
    of the **environmental impact** of its decision and to inform other
    agencies and the public of that impact.

-   The Act is implemented by requiring federal agencies to prepare
    certain types of **disclosure documents** that describe the
    potential impacts of their proposed activity.

    -   An **Environmental Assessment (EA)** is prepared to assist the
        agency in deciding whether or not a more detailed study is
        required.

    -   An **Environmental Impact Study (EIS)** is prepared when it is
        decided that an action is likely to cause a significant impact
        on the environment.

    -   **Findings of No Significant Impact (FONSI)** is prepared if it
        is determined that an EIS is not required.

-   NEPA is intended to simply make government agencies acknowledge the
    environmental consequences of their actions, to consider
    alternatives to the proposed action, and to make the public aware of
    the potential impacts.

-   NEPA does **not preclude the agency from implementing its
    decision**, regardless of the action's impact.

**\[PowerPoint 28.3** **Robertson v Methow Valley Citizens Council\]**

-   This was made abundantly clear by the U.S. Supreme Court in their
    decision in *Robertson v Methow Valley Citizens Council*.

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-   NEPA is a policy act, and merely requires dissemination of
    information regarding potential environmental impacts, and lacks the
    regulatory muscle of other federal environmental statutes such as
    the Clean Air Act and the Clean Water Act. However, as a
    consciousness-raising device, NEPA does have the potential to
    require greater collaboration and transparency for activities that
    take place in the coastal zone (See, e.g., Beatley, et al, p.
    120-121).

-   NEPA is a significant piece of federal environmental legislation. It
    expresses an across-the-board national policy of preserving and
    protecting the environment, including coastal natural resources. It
    does not prohibit agency action that may result in environmental
    degradation, but it requires the environmental costs of any major
    agency action to be disclosed to the public and to be a significant
    consideration in the decision-making process. (Kalo)

    -   Consider, for example, activities conducted by the US Army Corps
        of Engineers in the coastal zone (excerpted from Kalo, p. 163):

        -   A major actor in the federal government's coastal
            development activities is the US Army Corps of Engineers, a
            rich, powerful, and extremely influential federal entity.
            Through its civil works program, the Corps dredges channels,
            builds breakwaters, constructs harbor facilities, and
            engages in numerous other similar activities that may
            provide significant public benefits but may also contribute
            to environmental degradation or destruction.

        -   When the federal government, through entities such as the
            Corps, plays any significant role in the encouragement,
            promotion, or implementation of coastal development
            projects, the governmental entity must abide by the mandate
            of NEPA. NEPA is one of a number of environmental statutes,
            passed in the late 1960s and early 1970s, intended to
            reshape our nation's relationship to its environment.

## Class Discussion About NEPA

-   At this point the instructor may engage the students in discussion
    about NEPA by **posing the questions**:

    -   *So what is all the fuss about?*

    -   *What good is NEPA anyway?*

    -   *How in the world can it do anything to mitigate the impacts of
        coastal hazards?\"*

-   Ask the students to divide into separate "camps" to discuss the
    merits of NEPA (refer to readings in Beatley, et al. and Kalo for
    substantive arguments):

    -   Some students may characterize NEPA as a **\"toothless\" ogre**:

        -   Arguments in this vein may indicate that NEPA may deter some
            development or other actions, but not for long. NEPA may
            delay agency activity, but does not preclude it.

    -   Other students may counter that NEPA has been very useful in
        **improving the quality of decision- making** regarding federal
        projects.

        -   Arguments for this position may include the observation that
            agencies are much more aware of the potential impacts of
            proposed projects on the environment because of the
            environmental studies that are required by the law.

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        -   Because federal agencies are required to consider
            alternatives, and because of the publicity that often
            surrounds a proposed project, actions to protect the
            environment are more often taken, whereas in the absence of
            NEPA the agency may have conducted a more intrusive action.

-   The instructor may also wish to ask the students:

    -   \"*Even if you accept the notion that NEPA is effective in
        protecting the environment, how can it mitigate the impact of
        natural hazards?\"*

    -   The answer to this lies primarily in the **scope of the
        environmental statement** prepared by the agency. If the impact
        that the proposed project may have on natural hazards is made a
        part of the requisite scope of the statement, then any
        exacerbation of that impact would necessarily be disclosed.

    -   The **publicity** surrounding the project might well induce the
        agency to **modify the project** to lessen or mitigate the
        impact.

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-   **In summary**, NEPA does not have an immediate effect on mitigating
    the impacts of natural hazards. However, the environmental impact
    statement required by NEPA will disclose whether a proposed federal
    action has the potential to exacerbate the impact of natural
    hazards. The agency will then be required to propose alternative
    actions to lessen the impact.

-   NEPA per se cannot prevent a proposed project from going forward,
    but the information regarding the impact of the project, as well as
    possible alternatives, must be disclosed. This information can then
    be used authoritatively by other agencies and the public.

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**Objective 28.3** **Understand and discuss the Clean Water Act and its
role in mitigating the impacts of coastal hazards**.

**Requirements:**

The content should be presented as a lecture supported by PowerPoint
slides and class discussion. Alternatively, the material may be
presented as a student presentation followed by class discussion.

The following slides will be used during this objective:

**PowerPoint 28.4** Clean Water Act

**PowerPoint 28.5** Section 404 of the Clean Water Act

**PowerPoint 28.6** Wetlands absorb floodwaters

**Remarks:**

## What Does the Clean Water Act Do?

**\[PowerPoint 28.4** **Clean Water Act\]**

-   The **primary purpose** of the federal Clean Water Act (CWA),
    formally known as the Federal Water Pollution Control Act, is to
    **clean up the waters** of the United States by **reducing the
    pollutants discharged** into them.

-   The CWA consists of **several programs**, many of which play a role
    in the coastal zone:

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-   a shared system of **federal/state** control of **point source
    pollution**; (pollution that is discharged from a specific definable
    source, e.g., a pipe);

-   a **local storm-water management** program, which requires local
    governments to formulate storm-water management programs;

-   a **non-point source pollution** program, (pollutants that do not
    discharge from a specific source, e.g., agricultural runoff); and

-   restrictions on **dredge and fill in wetlands** (popularly known as
    the "404 program").

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-   All of these programs play an important role in managing water
    quality in the coastal zone, but the **dredge and fill program** is
    the **most significant** for mitigating the impact of natural
    hazards.

**[Section 404]{.underline}**

-   Implementation of Section 404 involves a rather complicated
    relationship between the US **Army Corps of Engineers** and the
    **Environmental Protection Agency.**

**\[PowerPoint 28.5** **Section 404 of the Clean Water Act\]**

-   **Section 404** of the CWA requires that a **permit from the United
    States Army Corps of Engineers** be obtained in order to **discharge
    "dredge or fill materials"** into the "waters of the United States."

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-   The Environmental Protection Agency (**EPA**) also plays a role in
    the 404 program by issuing **permitting guidelines**.

-   The EPA also has the authority to **veto** the issuance of **404
    permits** by the Corps.

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-   Through a complicated series of regulations and guidelines,
    **"waters of the United States"** includes **wetlands**

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-   As a practical matter, in the process of protecting water quality,
    Section 404 limits development activity in wetlands, including
    coastal wetlands.

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-   The Corps of Engineers may issue a permit only if it finds that
    there are **no practicable alternative sites** for the proposed
    activity.

-   In addition to a permit, Section 404 requires that the **impacts**
    of the dredge and fill activity be **mitigated** to the maximum
    extent.

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-   Any wetlands that are impacted by development must be **restored**,
    or **new wetlands must be constructed** elsewhere as a form of
    wetlands **"mitigation."**

> **\[PowerPoint 28.6** **Wetlands absorb floodwaters\]**

-   While the **environmental viability** of such artificially
    **constructed wetlands** is not always on par with that of wetlands
    found in a natural state, the 404 mitigation requirements do
    acknowledge the important **role of wetlands in purifying and
    storing water**.

**[Class Discussion About the Clean Water Act]{.underline}**

-   At this point the instructor might ask the students: \"*So?\" What
    does the 404 Program of the Clean Water Act have to do with coastal
    hazards?*

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-   A very important **function of wetlands** is that, in their natural
    state, they **absorb floodwaters**, providing an area into which
    floodwaters can flow without threatening human beings and without
    damaging property. As long as wetlands are not filled in or built
    upon, they can continue to serve this important mitigation role.

-   Thus, Section 404 of the CWA makes an important contribution to
    **reducing the vulnerability** of the coastal zone to flooding.

-   In addition to flooding, discuss other coastal hazards that are
    potentially mitigated through the Section 404 permitting process:

    -   Storm surge

    -   Coastal erosion

    -   Sea level rise

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-   *Discuss some of the inherent limitations in the 404 Program*:

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-   404 permitting pertains only to "discharges"

-   The COE too readily issues permits

-   The definition of "wetland" can be problematic

-   Wetland mitigation and restoration requirements are not stringently
    enforced

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-   *Discuss some of the strengths of the 404 program*:

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-   Without the protections afforded by Section 404, a substantial
    portion of the nation's wetlands would undoubtedly have been lost to
    development.

-   What is the appropriate role of the federal government in preserving
    wetlands and other natural resources?

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**Appendix A: Handout 28.1** (Optional)

# Instructions for Student Presentations on Federal Policy

1.  PowerPoint slides, overheads, handouts and posters are all
    acceptable formats for the presentations.

2.  The presentation must cover (but is not limited to) the following
    topics:

-   The name of the administrating agency or agencies.

-   The official citation of the statute and accompanying regulations.

-   The purpose of the policy, program or agency.

-   What aspect of the coast does the policy manage?

-   What does the policy attempt to do? What is its function?

-   How does the policy work? How does it get people to act differently
    than they have in the past?

-   How could the policy be used to mitigate the impacts of coastal
    hazards even though this may not have been the intent when it was
    adopted?

-   A discussion of the viability of the policy. Has it worked in the
    past to accomplish its purpose? Can it play an important role in
    mitigating the impact of natural hazards?

3.  The following policies may be assigned for individual or team
    presentations:

-   Session 28: National Environmental Policy Act

-   Session 28: Clean Water Act Section 404

-   Session 29: Coastal Zone Management Act

-   Session 29: Coastal Barrier Resources Act

-   Session 30: US Park Service (National Seashores); US Forest Service
    (National Forests); and US Department of Defense \[Note: the
    presentation of these agencies should focus on land management
    practices and policies on federally-owned coastal property\] Session
    30: US Army Corps of Engineers (shoreline protection projects)

**Course Developer References:**

Findley, Roger W., et al. 2004. *Environmental Law in a Nutshell*, 6th
Edition. St. Paul, MN: West Publications.

Beatley, Timothy, et al. 2002. *An Introduction to Coastal Zone
Management*, 2nd

Edition. Washington, DC: Island Press.

Burby, Raymond J., ed. 1998. *Cooperating with Nature: Confronting
Natural Hazards with Land-Use Planning for Sustainable Communities*.
Washington, D.C.: Joseph Henry Press.

French, Peter W. 1997. *Coastal and Estuarine Management*. New York:
Routledge.

National Research Council Committee on Watershed Management. 1999. *New
Strategies for America's Watersheds*. Washington, D.C.: National Academy
Press.

Kalo, Joseph J. 1990. *Coastal and Ocean Law*. Houston, TX: John
Marshall Publishing Co.