APPENDIX
C: STATE AND FEDERAL AUTHORITIES APPLICABLE TO THE
MONTEREY BAY AREA
Section II: State Authorities
II. State Authorities
The State's jurisdiction in the area under consideration extends 3 nm (5.6 km) offshore from the mean high tide line. State authorities range in approach and scope from broad regional management programs such as the California Coastal Act to laws intended to control specific threats or protect specific resources. The authorities with broad jurisdiction are described first, followed by those addressing a specific threat or resource.
A recent initiative by the Governor of California (April, 1991) proposed to combine a number of existing agencies, and created one new Agency, the California Environmental Protection Agency, a new cabinet level agency designed to streamline and coordinate the state's environmental programs. The new agency combines the Air Resources Board, that regulates automobile emissions and assists local governments in regulating air emissions from stationary sources; the Integrated Waste Management Board, to help local governments meet waste reduction goals of 25 percent by 1995 and 50 percent by 2000; the State Water Quality Resources Control Board that governs state water rights and oversees state water pollution controls; the Department of Toxic Substances, that assess various methods for cleaning up toxics in the air, water and land; the Department of Pesticide Regulation, that sets, monitors and enforces the use of pesticides for agricultural purposes; and the Office of Environmental Health Hazard Assessment that ascertains the environmental risks from chemicals in the air, water, food, solid and hazardous waste, sediment and various consumer products.
A. California Coastal Act of 1976 [Cal. Pub. Res. Code 30000 et seq.]
The California Coastal Act of 1976 (the CCA) is the foundation of the California Coastal Management Program. It establishes a comprehensive set of specific policies for the protection of coastal resources and the management of orderly economic development throughout the coastal zone. The CCA defines the coastal zone as the land and water area of the State, extending seaward to the outer limit of the State's jurisdiction (3.0 nm or 5.6 km, including all offshore islands), and extending inland generally 1,000 yards from the mean tide line. In significant coastal, estuarine, habitat, and recreational areas, it extends inland to the first major ridge line or 5 nm (8 km) from the mean high tide, whichever is less.
Activities in State waters must comply with the policies established by the CCA. In addition, seaward of state jurisdiction Federal activities affecting any land or water use or natural resource of the coastal zone must be conducted in a manner which is consistent with these policies to the maximum extent practicable and activities which require a federal license or permit must be conducted in a manner consistent with the enforceable policies (16 U.S.C. § 1456)
Provisions of the CCA which address activities or concerns relevant to the consideration of a marine sanctuary include:
1) Article 4, Section 30230 granting "special protection to" areas and species of special biological or economic significance and requiring uses of the marine environment to be carried out so as to maintain biological productivity.2) Article 4, Section 30233 limiting dredging and filling in coastal waters to situations where "there is no feasible less environmentally damaging alternative" and the activities are related to specific listed purposes.
3)Article 5, Section 30240 protecting sensitive habitat areas against "any significant disruption of habitat values" and against impacts from adjacent development which would "significantly degrade" the area.
4) Article 7, Section 30262, regulating oil and gas development.
The CCA establishes the State Coastal Commission to implement the Act, granting it permit authority until such time as local governments adopt local plans approved by the Commission. In marine areas the Commission will continue to be the State permitting agency and be responsible for reviewing consistency for Federal activities and Federally licensed activities including OCS activities, which are of particular importance to the area under consideration. Local governments with jurisdiction over areas affected by OCS activity are invited by the CCC to participate in the public hearing process, and CCC deliberations, and to present determinations of whether OCS activity is consistent with the local coastal plan. Local coastal plans are presently being prepared throughout the study area. Most of the counties and cities within the study area have fully certified local coastal plans. These include San Mateo, Santa Cruz and Monterey Counties, and Santa Cruz, Capitola, Watsonville, Marina, and Sand City. Communities still requiring certification for portions of their plans include Seaside, Monterey, Pacific Grove and Carmel. To facilitate early containment of an oil spill, the CCC has required one lease holder (Exxon, for exploratory drilling on certain tracts in the Santa Barbara Channel) to have certain minimum oil spill containment and cleanup equipment on drillships or at the site at all times, e.g.,: 1) 1500 feet of open ocean containment boom and a boat capable of deploying the boom, 2) one oil skimming device capable of open use, and 3) fifteen bales of oil sorbent material. Also, the CCC has determined that, for reasons of navigation safety and environmental protection, the placement of drillships in or within 500 meters of sea lanes established by the U.S. Coast Guard is inconsistent with the Coastal Plan.
With regard to public trust lands, i.e. State tidelands and submerged lands, a significant role is also played by the State Lands Commission (SLC). Prior to certification, the SLC may review and comment on any aspect of a proposed Local Coastal Plan that could affect State lands (Cal. Pub. Res. Code § 30415). In addition, as the State agency with sole responsibility for administering the trust, the SLC has adopted regulations for the protection and use of public trust lands in the coastal zone.
The CCA also requires that diking, filling or dredging in open coastal waters, wetlands, or estuaries shall be permitted only for certain listed purposes, and only where there is no feasible less environmentally damaging alternative, and where mitigation measures have been provided (California Coastal Act §30233). Finally the CCA requires the CCC to designate "Sensitive Coastal Resource Areas", which must then be acted upon by the Legislature within two years.
In addition, the recent law amending the Coastal Zone Management Act (CZMA) requires the State, in coordination with the State Water Quality Resources Control Board, to prepare and submit to the Administrator of EPA and the Secretary of Commerce for approval a Coastal Non-point Pollution Control Program.
B. California Environmental Protection Agency
California State Environmental Protection Agency was created by Governor Wilson in April 1991 to streamline and coordinate the state's environmental programs. The new Agency creates an Office of the Secretary which serves as the primary point of accountability, reporting directly to the Governor, for the management of environmental programs and brings together the functions which cut across the various programs designed to address pollution in a specific medium, e.g., air, surface water, ground water, land disposal, ocean disposal, etc.
It specifically, incorporates the following State Environmental Agencies: (1) The Air Resources Board, (2) the Integrated Waste Management Board, (3) The State Water Quality Resources Control Board, (4) The Department of Toxic Substances Control (including the Toxic Substances Control Program), (5) The Department of Pesticide Regulation and, (6) The Office of Environmental Health Hazard Assessment.
C. Water Quality Control Act (California Water Code §13300 et seq.)
The Porter-Cologne Water Quality Control Act is designed to enhance and maintain water quality in State waters, including ocean waters, under the jurisdiction of the state. The State Water Resource Control Board and the nine regional water quality control boards have primary authority for regulating water quality in California.
The Water Quality Control Plan for Ocean Waters of California (1988), which set standards for water quality characteristics for ocean waters within state jurisdiction, places particular emphasis on maintaining water quality in Areas of Special Biological Significance (ASBSs). To be classified as an ASBS, an area of ocean water must be considered to contain biological communities of such extraordinary value that no risk of change in their environments resulting from man's activities is considered acceptable (California Water Resources Control Board, 1988). Wastes must be discharged a sufficient distance from designated ASBSs to ensure that natural water quality conditions within the area are maintained. This is accomplished (i.e., administered) by Regional Water Quality Control Boards (RWQCBs) which, via a permit procedure, set waste discharge restrictions upon:
a) elevated temperature wastes;b) discrete, point source or industrial process wastes; and
c) non-point source wastes such as, but not limited to, storm water runoff, silt, and urban runoff.
ASBS designations have no impact on vessel wastes, dredging control, or dredge spoil deposition because the California Ocean Plan, of which ASBSs are a part, is not applicable to those activities.
Finally the SWRCB, responsible for developing part of a joint Coastal Non-Point Source Program, in cooperation with the CCC (§ 6217, Coastal Zone Act Reauthorization Amendments of 1990) (in conjunction with Regional Boards) and submitting the program for approval to the Administrator of EPA and the Secretary of Commerce.
D. Fish and Game Code
The California Department of Fish and Game, under the Fish and Game Code (and Chapter 14 of the Administrative Code), regulates and manages a wide variety of activities affecting the fish and game resources found on the land and in water areas under state jurisdiction. The Department of Fish and Game programs can be placed into four categories: 1) enhancement of environmental quality necessary for the maintenance of fish and game resources, 2) habitat protection through both regulations and property ownership, 3) prohibition of activities which may cause direct harm to individual species, and 4) management of fish and game stocks for commercial and recreational use. Specific programs of relevance to the study area other than ecological reserves (discussed above) are regulation of sport and commercial fishing, protection of endangered species, protection of migratory birds, and coordination of the oil spill contingency plans.
1. Regulations of Sport and Commercial Fishing
The Department of Fish and Game regulates sport fishing through license and bag limit systems. A sport fishing license is required for the taking and possession of fish for any non-commercial purpose (California Fish and Game Code §7100).
Commercial fishing, including the taking of tidal invertebrates for commercial purpose, is also governed by a licensing system. Certain species found in the study area are protected from commercial take; all other species may be taken in season (California Fish and Game Code §8140). Species found in the study area include: striped bass, kelp bass, sand bass, spotted bass, yellowfin croaker, spotfin croaker, sturgeon and California corbina (California Fish and Game Code §§8370-8373). The above species are reserved for recreation taking only. Several other species are subject to minimum size, seasonal and volume limitations.
Every person who operates or assists in using any boat or gear to take fish for profit must procure a license (California Fish and Game Code §7580); party boat operators must get special licenses (California Fish and Game Code §7920 et seq.). Vessels used in commercial fishing operations must also carry a Department of Fish and Game registration number (California Fish and Game Code §7880). Fishing reports, described in Section 8010 et seq., must be supplied by buyers, processors, and anyone else who receives fish from fishermen. These reports form the basis of Department of Fish and Game statistics used in formulating fishery management policies.
Licenses must also be obtained by any person engaged in the business of mariculture (California Fish and Game Code § 6480) or oyster culture (California Fish and Game Code § 6510). State water bottoms may be leased for this purpose by the Fish and Game Commission.
Under the Submerged Lands Act of 1953 [43 USC § 1301 et seq.], California has jurisdiction over kelp within state waters as a seabed resource. A license is required to harvest kelp for profit (California Fish and Game Code §6650). As with other commercial fisheries, a record book must be maintained (California Fish and Game Code §6652). The Department of Fish and Game retains the power to close any kelp beds if harvesting results in destroyed or impaired beds (California Fish and Game Code §6654).
2. Endangered Species (California Fish and Game Code §2050 et seq.)
The California Department of Fish and Game maintains a list of endangered and threatened species. It is unlawful within the state to take or possess any listed species. "Taking" is defined (California Fish and Game Code §2050 et seq.,) in a manner analogous to the interpretation under the federal act (see below). Listed species found in the study area are the California Clapper Rail, California brown pelican, the California Least tern, the light-footed clapper rail, and the Southern sea otter.
3. Protection of Migratory Birds (California Fish and Game Code §355 et seq. and 3500 et seq.)
In accordance with the Migratory Bird Treaty Act, California has provided protection for migratory birds, their nests and eggs by fixing areas, seasons, and hours plus bag and possession limits by species for migratory game birds (California Fish and Game Code §356). Of the birds found in the study area, the peregrine falcon, brown pelican, California clapper rail, California least tern, light- footed clapper rail and Southern bald eagle (California Fish and Game Code §3511) have all been accorded "fully protected" status, which protects these birds from taking except as authorized for scientific research.
4. Oil Spill Contingency Plans California Fish and Game Code §5650 et seq.)
It is unlawful to "Deposit or permit any petroleum to pass into the waters of the state" (California Fish and Game Code §5650). The California Department of Fish and Game together with an Interagency Committee coordinates the state's oil spill contingency plan. Because federal law preempts state regulations of oil spill cleanup operations, the state's role is that of observer, assistant, and advisor--with the important exception that the state has veto power over the use of chemical agents in state waters. In practice, State Department of Fish and Game personnel: 1) investigate all spills in state waters and many spills in federal waters; 2) monitor, assist, and advise federal and industry cleanup operations; and 3) maintain liaison between various government agencies and industry.
E. SB 2040, Lempert-Keene Oil Spill Prevention and Response Act, 1990
SB 2040 establishes a comprehensive oil spill response and prevention program for the State of California. The major provisions do the following:
1) Provides the Governor with the overall responsibility for oil spill response in the State.2) Requires any person who causes an oil spill to begin an immediate cleanup, follow approved contingency plans, carry out the directions of the administrator, and fully mitigate for adverse impacts to wildlife.
This Act requires the Governor to appoint an administrator for oil spill response as a Chief Deputy Director in the Department of Fish and Game. The Administrator is to:
a) Develop an oil spill response training program;b) Study and evaluate dispersants, new oil spill response equipment and techniques, and determine use of dispersants;
c) Conduct periodic drills to test oil spill response;
d) Coordinate Federal, State and local planning and preparation for oil spill response;
e) Negotiate with Alaska, Oregon, and Washington to develop an interstate compact regarding tanker safety and oil spill response and prevention;
f) Insure that trained persons are at the scene of an oil spill as quickly as possible;
g) Determine the cause of any spill; and h) Establish rescue and rehabilitation stations for wildlife.
SB 2040 is divided into two main categories: Prevention and Response. Prevention measures include:
* Expanded oil tanker safety inspection programs * Comprehensive oil spill prevention plans required for all tankers and terminals * Vessel traffic monitoring and surveillance program * Tugboat escorts in hazardous waters * Emergency stations along the coast for disabled tankers * Cease and Desist authority to enforce spill prevention measures * Prevention and response based on "Best Achievable Protection" standards.
Response measures include:
- New State oil spill response unit
- Mandates massive oil industry oil spill cleanup capability
- $100 million Emergency Fund for cleanup
- Unlimited State borrowing authority for cleanup, funded by a 25 cent per barrel oil industry fee
- Comprehensive oil spill cleanup plans for all tankers
- Unlimited qualified immunity for "good samaritan" respondents to spills
- 60 day qualified immunity, with possible 30 day extension for professional respondents to spills
- Extensive wildlife rehabilitation programs
- $500 - $1 billion mandatory financial assurance requirements for tankers.
By regulation, the State Interagency Oil Spill Committee (SIOSC) consisting of 18 State agencies, develops the State Oil Spill Contingency Plan. SB 2040 mandates additional representatives on the Committee and establishes the SIOSC review subcommittee (SRS) to review and make recommendations on regulations drafted by the Administrator.
F. Cunningham-Shell Tidelands Act, as Amended (California Public Resources Code §6850 et seq.)
The State Lands Commission has jurisdiction over all state owned lands and State submerged lands extending to 3 nmi (5.6 km) from the mean high tide line. Administration of state lands includes leasing of these lands for various legislatively authorized purposes; in particular, oil and gas exploration and development. The Public Resources Code specifically requires that development of publicly owned mineral resources not be undertaken at the expense of environmental values. The State Lands Commission, together with the Coastal Commission, regulates activities pursuant to leases for oil and gas development to ensure that they proceed safely and that marine resources are adequately protected. In this regard, the State Lands Commission enforces requirements similar to those of MMS concerning blowout prevention, drilling practices, production procedures, pollution control, and oil spill prevention, containment and cleanup.
In order to protect particularly sensitive marine areas, the California State Legislature may designate Oil and Gas Sanctuaries in which petroleum development within submerged lands is prohibited. Oil and gas sanctuaries are established in all State waters in the proposed Sanctuary area (California Public Resources Code §6871.2 (d)). Although leasing is normally excluded from the sanctuaries, should underlying oil and gas deposits risk being drained by wells located on adjacent federal lands--thereby threatening the state's proprietary interest in the resource--the state legislature may open up affected sanctuary areas for a drainage sale.
G. Control of Oil Discharges from Vessels (California Harbors and Navigation Code §133)
The California Harbors and Navigation Code generally applies to the activities of vessels operating in state waters. One of its purposes is to prevent the activities of vessels from adversely affecting the marine environment.
Any person who intentionally or negligently causes or permits any oil to be deposited in the waters of the state is liable for cleanup costs and subject to a $6,000 civil penalty (California Harbors Code §151).
H. Air Resources (California Health and Safety Code §3900 et seq.)
The California Air Resources Board (ARB) is charged with the maintenance and enhancement of the ambient air quality of the state. The ARB has set air quality standards designed to meet National Ambient Air Quality Standards and delegated their implementation to local Air Pollution Control Districts (APCDs). The proposed Sanctuary is located partly within the following APCD's: Santa Cruz County, Monterey County, and San Mateo County.
Generally, offshore oil and gas development facilities located within state waters must both obtain a permit from the appropriate APCD and meet ARB omission standards. ARB emission standards are also applicable to sources of emissions located beyond state waters that are related to an onshore facility. In essence, the permit for the onshore facility covers both. Emissions from offshore sources are considered together with those of the related onshore facility. The total emissions level must meet standards set by ARB as implemented by the appropriate APCD.
Emissions from tankers which dock at onshore facilities located in California are also considered together with those of the related onshore facility. As with onshore oil and gas development facilities, the total emissions level of the tanker and the related onshore facility must meet standards set by the ARB as implemented by the appropriate APCD. Unlike for other offshore facilities, however, neither the ARB nor an APCD has authority to issue permits solely for tanker emissions.