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 seq. 
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 seq.
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.
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
National Marine Sanctuaries Act
16 U.S.C. 1431 et seq.
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 seq.
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
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 seq.
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 seq.
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 . More information is available on NOAA's NEPA
website: http://www.nepa.noaa.gov
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.
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.
