A federal act to promote integrated water management: is the CZMA a useful model?

• Author: Thompson, Barton H., Jr.
• Position: Coastal Zone Management Act

1. INTRODUCTION II. FRAGMENTATION AND INTEGRATION A. The Problem of Fragmentation B. State Efforts to Promote Integration III. THE CZMA AS A POTENTIAL MODEL A. The History and Provisions of the CZMA B. Should the National Government Take a CZMA-Like Approach to Integrated Water Management? IV. STATUTORY PROVISIONS A. What Federal Agency Should Administer SWIM? B. Management by States or Water Basins C. The Best Geographic Scale for Integration D. Substantive Integration E. Interstate Integration V. INCENTIVES A. Federal Funding B. Federal Consistency C. Federal Technical Assistance D. Streamlined Permitting E. Federal Delegation VI. CONCLUSIONS I. INTRODUCTION

   This Article examines whether the federal Coastal Zone Management Act (CZMA) (1) provides a useful model for national encouragement, support, and oversight of more integrated management of freshwater resources in the United States. The last several decades have seen increasing interest in such management, from informal watershed planning to the more formal and ambitious concept of integrated water resource management (IWRM). (2) Such approaches have sought to surmount the significant fragmentation that historically has existed in the water arena and sometimes stymied effective water governance. This fragmentation is both substantive--with separate agencies holding responsibility over different but often closely related substantive issues--and geographic--with a single watershed or water basin often crisscrossed by multiple geopolitical boundaries.

   The fragmentation that has historically plagued water management resembles the state of coastal management prior to the CZMA. Critics of mid-twentieth century coastal management worried that the nation's coasts were at risk and would remain at risk so long as control over coastal zones remained highly fragmented. (3) In response, Congress in 1972 passed the CZMA to promote the development and implementation of comprehensive state-level coastal plans. (4) The CZMA differed from other major national environmental laws passed during the same period, such as the Clean Air Act (5) and Clean Water Act, (6) by not mandating any specific state action but instead encouraging voluntary state planning through two principal incentives: matching federal funds and a promise of federal consistency. (7)

   The history of the CZMA suggests that it might be a model for similar national legislation encouraging more integrated management of water resources. The national government would appear to have as much of an interest today in enabling and ensuring sustainable management of water resources throughout the United States as it did in promoting effective coastal management in 1972. Because of the national government's existing role in water management, integrated management requires the participation of the national government. (8) Poor water planning in one region, moreover, can impact national water needs, the water management of neighboring areas, and national economic markets. (9) However, Congress is unlikely to pass a national directive for integrated, regional water management in today's political landscape. Not only has Congress shown little interest over the last two decades in adopting major new legislation addressing either water or the environment, (10) but states have always carefully and generally successfully guarded their discretion over nonquality issues in water management." The need for a direct and universal congressional mandate is also unclear. The complexity and cost of integrated watershed planning in many regions may exceed the benefits, undermining any argument for a universal requirement. (12) And many watersheds have already voluntarily embarked on integrated planning, undermining the need for a direct mandate. (13) In this setting, voluntary incentives might be both an attractive and the only available approach. Matching funds and federal consistency could be attractive incentives for more integrated water management, just as it was for coastal planning. (14) Given the significant role of federal agencies in water management, federal consistency also is necessary to effective and integrated management, just as it was in the coastal context. (15)

   The superficial attractiveness of the CZMA as a model for federal support and encouragement of more integrated watershed management disguises several important issues that any new federal legislation would need to address. First, what type and scope of integration would the legislation require? While the CZMA had a fairly clear goal in mind--state management of coastal zones (16)--IWRM is a vague and complex concept that has proven difficult to define and equally difficult to implement. (17) In promoting more integrated management, Congress would need to address such questions as the required geographic scale of integration and the issues to be integrated. Second, would the type of incentives offered by the CZMA--matching funds and consistency assurances (18)--be enough in today's environment to convince a significant number of states to embark on more integrated planning and management of their water resources? Commentators have criticized the CZMA for failing to provide sufficient incentives to fully encourage widespread and effective state coastal management. (19) Federal funding today is far more limited, and Congress has already instructed many federal agencies to defer to state policies. To promote more integrated water management, Congress therefore may need to look beyond the CZMA for other potential incentives.

   This Article considers these and other questions in evaluating the potential for new CZMA-like legislation to promote more integrated and effective management of water resources. Part II of the Article overviews the fragmentation that historically has plagued freshwater management, particularly in the western United States, and the need for more integrated management. Part II also looks at the effort by some states, such as California, to encourage such management. Part III then considers the opportunity for using the CZMA as a model for new federal legislation--what I will refer to as the Sustainable Water Integrated Management Act, or SWIM for short--to encourage greater use of integrated water management in the United States and ensure effective implementation. Part IV looks in more detail at the potential provisions of such legislation, with a particular emphasis on the required scope of integration. Part V considers the question of what, if any, incentives the national government might provide beyond matching funds and federal consistency. Finally, Part VI provides a brief conclusion.

2. FRAGMENTATION AND INTEGRATION

   1. The Problem of Fragmentation

      Fragmentation, both substantive and geographic, has long undermined effective water management in the United States, particularly in the West. (20) Governments ideally would manage water resources on a holistic basis. Decisions regarding surface water and groundwater withdrawals would account for the fact that surface water and groundwater are often interlinked. (21) In deciding whether or not to permit water diversions, water managers would consider the potential impact on water quality. They also would look at options for using reclaimed wastewater or storm water to supplement other local or imported supplies. Land-use managers would examine the impact of their decisions on water demand, groundwater infiltration, water quality, and other water-related concerns. Flood control and water supply would be closely integrated. Despite the need for such integration, different governmental agencies handle these various substantive issues in most jurisdictions today, and the varying agencies often do not work together to solve problems on a more holistic basis. (22) Within any one watershed, moreover, multiple agencies often divide authority geographically, making it difficult to integrate management across the entire watershed. (23)

      To see the problems of substantive fragmentation, consider the physical connection between groundwater and surface water. (24) Groundwater and surface water are often hydrologically coupled. (25) Groundwater provides approximately 40% of the nation's surface water flows, and surface water in turn often feeds groundwater aquifers. (26) As a result, groundwater withdrawals can reduce surface water supplies, and surface diversions can reduce groundwater availability. (27) Groundwater also supports the healthy functioning of a variety of aquatic, coastal, and terrestrial ecosystems, supporting the fish, fauna, birdlife, and vegetation reliant on them. (28) Groundwater-dependent ecosystems (GDEs) include such diverse freshwater systems as wetlands, springs, seeps, and fens. (29) Overpumping of groundwater can harm or destroy GDEs. (30)

      Effective water management thus requires the integrated administration of both groundwater and surface water. Conjunctive management of surface water and groundwater, in which users can switch from one source to another and in which surface water can be stored in groundwater aquifers, can significantly increase overall yield and thus water availability. (31) However, many state agencies with responsibility over surface water historically managed groundwater only in the limited circumstances where courts concluded that the groundwater constituted the "subflow" of a surface waterway--a purely legal construct with no hydrologic relevance. (32) While this caused few problems so long as groundwater extractions were minimal, growth in groundwater use has increasingly brought groundwater and surface water users into conflict in the West, particularly during prolonged droughts. (33) As water has grown increasingly scarce, conjunctive management and its promise of increased yield also have increased in importance.

      About two-thirds of the eighteen western states have responded by integrating a broader set of groundwater and surface water rights...