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NOAA's Legal Authorities for Restoring Coastal Resources

In the past 25 years, Congress and the President have enacted a suite of environmental laws to address the degradation of the Nation's natural resources. Explicit statutory authority to restore injured natural resources began with the Clean Water Act amendments of 1977 and continued with the later enactment of the Comprehensive Environmental Response, Compensation and Liability Act (CERLCA or Superfund), the National Marine Sanctuaries Act (NMSA), and the Oil Pollution Act of 1990 (OPA) and other related laws. As the primary Federal natural resource trustee for coastal resources, NOAA has responsibility for ensuring the restoration of coastal resources injured by releases of hazardous materials and of national marine sanctuary resources injured by physical impacts. The Clean Water Act, CERCLA and OPA mandate that parties that release hazardous materials and oil into the environment are responsible not only for the cost of cleaning up the release, but also for restoring any injury to natural resources that results. The National Marine Sanctuaries Act mandates that parties who destroy, cause the loss of, or injure sanctuary resources are responsible for their restoration. Under all of these statutes, NOAA works to protect and restore coastal resources in order to preserve the Nation's natural resource heritage for Americans today and for future generations.

Clean Water Act
33 U.S.C. 1251 et seqLinking to a non-federal government web site.This link does not imply endorsement.

This is the principal statute governing water quality. The statute's goal is to end all discharges entirely and to restore, maintain and preserve the integrity of the nation's waters, with an interim goal of providing water that is both fishable and swimmable. The Act regulates both the direct and indirect discharge of pollutants into the nation's waters. It mandates permits for wastewater and storm water discharges, regulates publicly owned treatment works that treat municipal and industrial wastewater, requires states to establish site-specific water quality standards for navigable bodies of water, and regulates other activities that affect water quality, such as dredging and the filling of wetlands. The Clean Water Act was enacted in 1977 as a series of amendments to the Federal Water Pollution Control Act of 1948.

Specific Natural Resource Trustee Authorities under the Clean Water Act

Oil Pollution Act (OPA) of 1990
33 U.S.C. 2701 et seqLinking to a non-federal government web site.This link does not imply endorsement.

This is the principal statute governing oil spills into the nation's waterways. The Oil Pollution Act (OPA) was passed in the wake of the Exxon Valdez oil spill in March of 1989. The statute establishes liability and limitations on liability for damages resulting from oil pollution, and establishes a fund for the payment of compensation for such damages. In conjunction with CERCLA, it mandates a "National Oil and Hazardous Substances Pollution Contingency Plan (NCP)" to provide the organizational structure and procedures for preparing for and responding to discharges of oil and releases of hazardous substances, pollutants, and contaminants. It requires preparation of spill prevention and response plans by coastal facilities, vessels, and certain geographic regions. OPA amended the Clean Water Act and includes the Oil Terminal and Oil Tanker Environmental Oversight and Monitoring Act of 1990.

Specific Natural Resource Trustee Authorities under OPA

Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA or Superfund)
42. U.S.C. 9601 et seq Linking to a non-federal government web site.This link does not imply endorsement.

This is the principal statute governing the cleanup of sites contaminated with hazardous substances and responses to spills of those substances. The statute establishes liability for site cleanup, prescribes a procedure for identifying and ranking contaminated sites, provides funding for site cleanups, reduces uncontrolled releases of hazardous substances, establishes cleanup procedures that provide protection for humans and the environment, and restores injured natural resources through provisions administered by the natural resource trustees. In conjunction with OPA, it mandates a "National Oil and Hazardous Substances Pollution Contingency Plan (NCP)" to provide the organizational structure and procedures for preparing for and responding to discharges of oil and releases of hazardous substances, pollutants, and contaminants. The statute was amended by the Superfund Amendment and Reauthorization Act (SARA) in 1986, which adds extensive public "right-to-know" and emergency planning requirements, establishes a fund for leaking underground storage tanks, and imposes worker safety requirements for hazardous materials.

Specific Natural Resource Trustee Authorities under CERCLA

Natural Resource Damage Assessment and Restoration Federal Advisory Committee Final Report – May 2007
NRDAR Federal Advisory Committee Final Report Linking to a non-federal government web site.This link does not imply endorsement.

The Natural Resource Damage Assessment and Restoration (NRDAR) Federal Advisory Committee was chartered by the U.S. Department of the Interior to provide advice and recommendations regarding its NRDAR activities, authorities, and responsibilities.  The report identifies specific objectives for advice on actions that can be undertaken to achieve faster, more efficient, and more effective restoration of injured natural resources and to promote cooperation among natural resource trustees and potentially responsible parties.  The report focuses on four major parts of the NRDAR process: 1) Natural Resource Injury Determination and Quantification; 2) Restoration Action Selection; 3) Compensating for Public Losses Pending Restoration, and; 4) Timely and Effective Restoration after NRDAR Claims are Resolved.

National Marine Sanctuaries Act
16 U.S.C. 1431 et seqLinking to a non-federal government web site.This link does not imply endorsement.

This is the principal statute governing the designation and management of protected marine areas of special significance. The statute requires NOAA to designate National Marine Sanctuaries in accordance with specific guidelines and to develop and review management plans for these sites. It provides for the continuation of existing leases, licenses and other established rights in sanctuary areas, and for the development of research and education programs. The statute also prohibits destruction, injury or loss of sanctuary resources, and establishes liability for response costs and natural resource damages for injury to these resources. The NMSA was formerly referred to as Title III of the Marine Protection, Research and Sanctuaries Act of 1972.

Specific Natural Resource Trustee Authorities under NMSA

Anadromous Fish Conservation Act (AFCA)
16 U.S.C. 757a et seqLinking to a non-federal government web site.This link does not imply endorsement.

The AFCA authorizes the Secretaries of Commerce and/or Interior to enter into cooperative agreements with the states for the conservation, development, and enhancement of the Nation's anadromous fishery resources. Pursuant to such agreements, the federal government may undertake studies and activities to restore, enhance, or manage anadromous fish, fish habitat, and passages. The Act authorizes federal grants to the states or other non-Federal entities to improve spawning areas, install fishways, construction fish protection devices and hatcheries, conduct research to improve management, and otherwise increase anadromous fish resources. The Trustees may be able to take advantage of the provisions and funding of AFCA in order to leverage anadromous fish restoration plans and projects.

Coastal Zone Management Act (CZMA)
16 U.S.C. 1451 et seq. 15 CFR Part 923  Linking to a non-federal government web site.This link does not imply endorsement.

The goal of the CZMA is to preserve, protect, develop and, where possible, restore and enhance the nation's coastal resources. The federal government provides matching grants to states with federally-approved coastal management programs for the realization of these goals through the development and implementation of state coastal zone management programs. Most states have a federally-approved program. Section 1456 of the CZMA requires that any federal action inside or outside of the coastal zone that affects any land or water use or natural resources of the coastal zone shall be consistent, to the maximum extent practicable, with the enforceable policies of approved State management programs. It states that no federal license or permit may be granted without giving the State the opportunity to concur that the project is consistent with the State's coastal policies. The regulations outline the consistency procedures. Other provisions of CZMA provide for the development of special area management plans (SAMPs) for areas of the coastal zone of particular importance (16 USC 1456b(6)). In addition, Section 6217 of P.L. 101-508, codified at 16 USC 1455b, requires states with federally-approved CZM programs to develop programs for the control of coastal non-point pollution control.

In order to comply with the CZMA, the Trustees intend to seek the concurrence of the State that their preferred projects are consistent to the maximum extent practicable with the enforceable policies of the state coastal program.

Endangered Species Act (ESA)
16 U.S.C. 1531 et seqLinking to a non-federal government web site.This link does not imply endorsement.

The ESA establishes a policy that all Federal departments and agencies seek to conserve endangered and threatened species and their habitats, and encourages such agencies to utilize their authorities to further these purposes. Under the Act, the Department of Commerce through NOAA and the Department of the Interior through the USFWS publish lists of endangered and threatened species. Section 7 of the Act requires that federal agencies and departments consult with these departments to minimize the effects of federal actions on endangered and threatened species. Prior to implementation of any project that may potentially affect an endangered or threatened species project, the Trustees would conduct Section 7 consultations.

Executive Order 11988—Construction in Floodplains

This 1977 Executive Order directs federal agencies to avoid to the extent possible the long- and short-term adverse impacts associated with the occupancy and modification of floodplains and to avoid direct or indirect support of development in floodplains wherever there is a practicable alternative. Each agency is responsible for evaluating the potential effects of any action it may take in a floodplain.

Before taking an action, the federal agency must determine whether the proposed action will occur in a floodplain. For major federal actions significantly affecting the quality of the human environment, the evaluation will be included in the agency's NEPA compliance document(s). The agency must consider alternatives to avoid adverse effects and incompatible development in floodplains. If the only practicable alternative requires siting in a floodplain, the agency must: (1) design or modify the action to minimize potential harm; and (2) prepare and circulate a notice containing an explanation of why the action is proposed to be located in the floodplain.

Executive Order 12898—Environmental Justice

On February 11, 1994, President Clinton issued Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. This Executive Order requires each federal agency to identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority and low income populations. EPA and the Council on Environmental Quality (CEQ) have emphasized the importance of incorporating environmental justice review in the analyses conducted by federal agencies under NEPA and of developing mitigation measures that avoid disproportionate environmental effects on minority and low-income populations.

Affected Communities. The Trustees will identify whether there are any distinct, separate communities which may be potentially affected by any action under a NRDA Restoration Plan. There may be some Native American communities which rely on Treaty-reserved fish and shellfish resources for subsistence, economic and spiritual purposes; other members of low-income communities may also rely on fishery resources for subsistence purposes. The Trustees will determine whether there are any disproportionate, adverse impacts on human health or environmental effects on implementation of any preferred alternative under a NRDA Restoration Plan on members of a tribal or other minority or low income population. The Trustees will ensure that there are no low income or ethnic minority communities that would be adversely affected by the proposed restoration activities.

Fish and Wildlife Coordination Act (FWCA)
16 U.S.C. 661 et seqLinking to a non-federal government web site.This link does not imply endorsement.

The FWCA requires that federal agencies consult with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service and State wildlife agencies for activities that affect, control or modify waters of any stream or bodies of water, in order to minimize the adverse impacts of such actions on fish and wildlife resources and habitat. This consultation is generally incorporated into the process of complying with Section 404 of the Clean Water Act, NEPA or other federal permit, license or review requirements.

National Environmental Policy Act (NEPA)
42 U.S.C. 4321-4370d ; 40 CFR Parts 1500-1508  Linking to a non-federal government web site.This link does not imply endorsement.. More information is available on NOAA's NEPA website:

NEPA is the basic national charter for the protection of the environment. Its purpose is to "encourage productive and enjoyable harmony between man and the environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; and to enrich the understand of the ecological systems and natural resources important to the Nation." The law requires the government to consider the consequences of major federal actions on human and natural aspects of the environment in order to minimize, where possible, adverse impacts. Equally important, NEPA established a process of environmental review and public notification for federal planning and decisionmaking.

Generally, when it is uncertain whether an action will have a significant effect, federal agencies will begin the NEPA planning process by preparing an Environmental Assessment (EA). The EA may undergo a public review and comment period. Federal agencies may then review the comments and make a determination. Depending on whether an impact is considered significant, an environmental impact statement (EIS) or a finding of no significance (FONSI) will be issued.

The Trustees have integrated OPA restoration planning with the NEPA process to comply, in part, with those requirements. This integrated process allows the Trustees to meet the public involvement requirements of OPA and NEPA concurrently. Restoration Plans and EAs or EISs are intended to accomplish partial NEPA compliance by summarizing the current environmental setting; describing the purpose and need for restoration action; identifying alternative actions; assessing the preferred actions' environmental consequences; and summarizing opportunities for public participation in the decision process. Project-specific NEPA documents will need to be prepared for those proposed restoration projects not already analyzed in an environment assessment or environmental impact statement.

Park System Resource Protection Act
16 U.S.C.19jj

Public Law 101-337, Park System Resource Protection Act (16 U.S.C.19jj), requires the Secretary of the Interior to assess and monitor injuries to park system resources. The Act specifically allows the Secretary of the Interior to recover response costs and damages from the responsible party causing the destruction, loss of or injury to park system resources. This Act provides that any monies recovered by the NPS may be used to reimburse the costs of response and damage assessment and to restore, replace or acquire the equivalent of the injured resources.

Rivers and Harbors Act
33 U.S.C. 401, et seq. Linking to a non-federal government web site.This link does not imply endorsement.

The Rivers and Harbors Act regulates development and use of the nation's navigable waterways. Section 10 of the Act prohibits unauthorized obstruction or alteration of navigable waters and vests the Corps with authority to regulate discharges of fill and other materials into such waters. Restoration actions that require Section 404 Clean Water Act permits are likely also to require permits under Section 10 of the Rivers and Harbors Act. However, a single permit usually serves for both. Therefore, the Trustees can ensure compliance with the Rivers and Harbors Act through the same mechanisms.

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