Living With A New Law: The Impact Of P.L. 103-426 On Coastal Restoration And Public Construction Projects

Public Law 103-426 was signed into law in October 1994. Its provisions amended sections 8(k) and 20(a) of the Outer Continental Shelf Lands Act (OCSLA). The 8(k) amendment provides the Secretary of the U.S. Department of the Interior 001) with new discretionary authority to negotiate agreements for using Outer Continental Shelf (OCS) sand, gravel, and shell resources for certain projects of public benefit (e.g, beach, shoreline and coastal wetlands restoration that are under- taken by a Federal, State or local government agency). The new law also covers construction projects that are funded wholly or in part or authorized by the Federal Government. Under the law, the Secretary may assess a fee for use of the resource by taking into consideration the value of the resource and the public interest served. The law also requires that any Federal agency proposing to make use of OCS sand, gravel, or shell resources enter into a Memorandum of Agreement (MOA) with the DOI. An MOA would promote efficient coordination and resolution of inter- agency scheduling and issues. The law requires that Congress be notified before use is made of these OCS resources. The amendment to section 20(a) of the OCSLA clarifies that obligations concerning environmental studies extend to non- competitive lease situations and includes minerals other than oil and gas. The Minerals Management Service (MMS) is the DO1 agency responsible for interpreting and implementing the provisions of Public Law 103-426. The negotiated agreement approach is distinctly different from the competitive bidding requirements that have applied to all OCS minerals since the inception of the OCSLA. The MMS has opted to implement the new law in a nontraditional manner. Rather than issuinga body of new regulations to cover the negotiated agreement situation, or attempting to amend three sets of existing regulations, MMS is pursuing a less formal approach of providing guidelines. More weight is placed on the negotiation process itself and the legal agreement that consummates the process as the means for establishing ground rules, terms, and conditions under which qualifying projects may be conducted. This process must recognize and adhere to requirements of other laws, including the National Environmental Policy Act.