Limitations on and Exceptions to Federal Expenditures

Limitations on Federal Expenditures

Section 5 of the Coastal Barrier Resources Act (CBRA; 16 U.S.C. § 3504) prohibits new Federal expenditures or financial assistance within System units of the Coastal Barrier Resources System (CBRS).  An expenditure or financial assistance is considered “new” under CBRA (16 U.S.C. § 3504(b) if:  (1) no money for construction or purchase purposes was appropriated before the date on which the relevant System unit or portion of the System unit was included within the CBRS; or (2) no legally binding commitment for the expenditure or financial assistance was made before such date.  Except as provided in Section 6 of CBRA (16 U.S.C. § 3505), no new expenditures or new financial assistance may be made available under authority of any Federal law for any purpose within the CBRS, including, but not limited to the following:

1.  the construction or purchase of any structure, appurtenance, facility, or related infrastructure;
2.  the construction or purchase of any road, airport, boat landing facility, or other facility on, or bridge or causeway to, any System unit; and
3. the carrying out of any project to prevent the erosion of, or to otherwise stabilize, any inlet, shoreline, or inshore area, except that such assistance and expenditures may be made available on units designated pursuant to section 3503 of this title on maps numbered S01 through S08 and LA-07 for purposes other than encouraging development and, in all units, in cases where an emergency threatens life, land and property immediately adjacent to that unit.

Under CBRA (16 U.S.C. § 3502(3)), the term ‘‘financial assistance’’ is defined as any form of loan, grant, guaranty, insurance, payment, rebate, subsidy, or any other form of direct or indirect Federal assistance other than (1) deposit or account insurance for customers of banks, savings and loan associations, credit unions, or similar institutions; (2) the purchase of mortgages or loans by the Government National Mortgage Association, the Federal National Mortgage Association, or the Federal Home Loan Mortgage Corporation; (3) assistance for environmental studies, planning, and assessments that are required incident to the issuance of permits or other authorizations under Federal law; and (4) assistance pursuant to programs entirely unrelated to development, such as any Federal or federally assisted public assistance program or any Federal old-age survivors or disability insurance program.

Exceptions to Limitations on Federal Expenditures

Section 6 of CBRA (16 U.S.C. § 3505) permits certain Federal expenditures and financial assistance within the CBRS after consultation with the Service.  These exceptions are divided into two groups.  The first group only requires that the proposed funding is in fact a listed exception.  The second group requires that the exception also meet the three purposes of the CBRA.  Those purposes are to minimize the loss of human life; wasteful expenditure of Federal revenues; and the damage to fish, wildlife, and other natural resources associated with coastal barriers. 

The Federal agency that is proposing the expenditure is responsible for providing, in writing, evidence that it meets one of the exceptions in Section 6 of CBRA and, if applicable, providing evidence that the project is consistent with the purposes of CBRA.  The Service’s response should provide technical information and an opinion as to whether the activity is allowed under CBRA’s exceptions.  If applicable, the Service should also comment on the consistency of the proposed activity with the purposes of the CBRA.

A Federal expenditure is allowable within the CBRS, if it meets any of the following exceptions (16 U.S.C. § 3505(a)(1)-(5)):

• Any use or facility necessary for the exploration, extraction, or transportation of energy resources which can be carried out only on, in, or adjacent to a coastal water area because the use or facility requires access to the coastal water body.
• The maintenance or construction of improvements of existing Federal navigation channels (including the Intracoastal Waterway) and related structures (such as jetties), including the disposal of dredge materials related to such maintenance or construction.   A Federal navigation channel or a related structure is an existing channel or structure, respectively, if it was authorized before the date on which the relevant System unit or portion of the System unit was included within the CBRS.
• The maintenance, replacement, reconstruction, or repair, but not the expansion, of publicly owned or publicly operated roads, structures, or facilities that are essential links in a larger network or system.
• Military activities essential to national security. The construction, operation, maintenance, and rehabilitation of Coast Guard facilities and access thereto.

Additional information on the exceptions applying to Federal navigation channels, highways in Michigan, and CBRS Unit T11 are listed under 16 U.S.C. § 3505 (b), (c), and (d).  

A Federal expenditure is allowable within the CBRS, if it meets any of the following exceptions (16 U.S.C. § 3505(a)(6)) and is also consistent with the three purposes of the CBRA:

• Projects for the study, management, protection, and enhancement of fish and wildlife resources and habitats, including acquisition of fish and wildlife habitats, and related lands, stabilization projects for fish and wildlife habitats, and recreational projects.
• Establishment, operation, and maintenance of air and water navigation aids and devices, and for access thereto.
• Projects under the Land and Water Conservation Fund Act of 1965 (16 U.S.C. § 4601-4 through 11) and the Coastal Zone Management Act of 1972 (16 U.S.C. § 1451 et seq.).
• Scientific research, including aeronautical, atmospheric, space, geologic, marine, fish and wildlife, and other research, development, and applications.
• Assistance for emergency actions essential to the saving of lives and the protection of property and the public health and safety, if such actions are performed pursuant to sections 5170a, 5170b, and 5192 of title 42 and section 1362 of the National Flood Insurance Act of 1968 (42 U.S.C. § 4103) and are limited to actions that are necessary to alleviate the emergency.
• Maintenance, replacement, reconstruction, or repair, but not the expansion (except with respect to United States route 1 in the Florida Keys), of publicly owned or publicly operated roads, structures, and facilities. 
• Nonstructural projects for shoreline stabilization that are designed to mimic, enhance, or restore a natural stabilization system.