Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990: is there any point?

• Author: Solomon, Andrew

1. INTRODUCTION

   While the Clean Water Act (CWA)(1) has achieved some measure of success at controlling point sources of pollution,(2) it contains only weak provisions specifically designed to control nonpoint sources of pollution.(3) This means that the CWA does not address significant sources of pollution, thereby allowing a large amount of pollution to be discharged unchecked into the nation's waterways.(4) Nonpoint source pollution of coastal waters results in serious problems affecting both coastal ecosystems and local economies. In 1995, 3.5 billion acres of shellfish beds were closed to harvesting.(5) According to the National Oceanic and Atmospheric Administration (NOAA), nonpoint source pollution caused eighty-five percent of these closures.(6) Recent outbreaks of the dinoflagellate Pfiesteria piscicida, responsible for recent fish kills and detrimental effects to human health on the East Coast, are linked to increased nutrient loading from nonpoint source pollution.(7) Perhaps the most striking effect of nonpoint source pollution on coastal waters is the so-called "dead zone" in the Gulf of Mexico. The dead zone is an approximately 6,000 square mile area where oxygen levels are so low during the summer that shrimp and other fish virtually disappear each year.(8) One of the causes of anoxia in coastal areas is the "buildup" of nutrients and the resulting algal blooms caused by runoff from agriculture and development.(9)

   The Clean Water Act is not the only statute that attempts to address water quality issues. Congress's primary purpose in enacting the Coastal Zone Management Act of 1972 (CZMA)(10) was to control land use activities having significant impacts on coastal waters.(11) However, by 1990 Congress had determined that the CZMA's purpose was not implemented effectively.(12) To remedy the situation and in recognition of serious coastal water quality problems, Congress enacted section 6217 as part of the Coastal Zone Reauthorization Amendments of 1990 (CZARA).(13) The goal was to "strengthen the links between Federal and State coastal zone management and water quality programs and to enhance State and local efforts to manage land use activities which degrade coastal waters and coastal habitats."(14) The heart of section 6217 provides that each state or territory with a coastal management program is to develop a plan to implement coastal nonpoint source pollution control and prevention measures.(15) If a state fails to submit an approvable plan, the statute requires that a portion of the state's federal coastal management funds under section 306 of the CZMA and a portion of the water pollution control assistance funds under section 319 of the Clean Water Act be withheld.(16) Despite high expectations for the program, implementation of section 6217 has been very slow.(17) At the time of this writing, the Environmental Protection Agency (EPA) and NOAA have given final approval to the coastal nonpoint programs of Maryland, Rhode Island, and California and are in the process of approving Puerto Rico's program.(18) However, ten years after enactment of the statute, EPA and NOAA have yet to withhold a single dollar from any state.(19)

   The CZMA is currently due for reauthorization; in 1999 three bills were pending before Congress to reauthorize the statute.(20) In light of the possibility of significant changes to the statute and the low number of states that have received final approval, this Comment examines why progress has been so slow and what can be done to persuade states to implement the coastal nonpoint source pollution control plans. Part II of this Comment presents a history of the development of section 6217, starting with enactment of the 1972 version of the CZMA and continuing through current efforts to reauthorize the program. Part III examines why the development of approvable programs has been so slow. It looks at the structure of section 6217 and the CZMA, at the implementation of section 6217 by NOAA and EPA, and at the state section 6217 program submittals. Part III concludes that the real problem lies with the structures of section 6217 and the CZMA in general. Finally, Part IV provides recommendations for improving the program so that it might someday have the significant impact on coastal water quality that its drafters intended.

2. THE HISTORY OF THE COASTAL NONPOINT POLLUTION PROGRAM

   1. The Coastal Zone Management Act of 1972

      Congress enacted the Coastal Zone Management Act of 1972 (CZMA) during the rush of environmental legislation that occurred during the early 1970s.(21) However, it is very different from the other laws passed during that period, such as the Clean Water Act, the Endangered Species Act,(22) and the Clean Air Act.(23) Unlike those acts, participation in the CZMA is entirely voluntary.(24) The CZMA places no requirements on states or individuals unless the state develops a coastal management program.(25)

      The purpose of the CZMA is "to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations...."(26) By enacting the CZMA, Congress was trying to "control land use activities which have a direct and significant impact on the coastal waters."(27) Senator Hollings, the original bill's sponsor, expressed his concern for protection of coastal waters during debate over passage of the bill when he stated "[t]he bill I propose today is aimed at saving the waters of our coasts and the land whose use has a direct, significant, and adverse impact upon that water."(28) Instead of developing a regulatory scheme similar to the Clean Water Act, Congress decided that, because many of the land use planning and management mechanisms necessary to improve coastal water quality had already been established in states, the CZMA would be an incentive based scheme that provides benefits to states that develop their own coastal management programs.(29)

      Congress created two incentives for state coastal management program development. The first incentive was federal grants for the development and administration of coastal management programs.(30) In 2000, Congress gave states and territories with active coastal management programs between $758,000 and $2.765 million dollars each for administration of their programs.(31) The second, potentially more significant incentive was the federal consistency requirement.(32) Federal consistency authority gave states with approved coastal management plans the power to object to federal actions if those actions did not comply with the enforceable policies of the state's coastal management program.(33) With certain exceptions, a state can object to permits issued by federal agencies, to federally sponsored activities, and to direct action by federal agencies.(34) States have used the federal consistency authority extensively to review Outer Continental Shelf oil and gas leases as well as dredge and fill permits under section 404 of the Clean Water Act(35) and section 10 of the Rivers and Harbors Act.(36)

      While states have a great deal of flexibility in developing coastal management programs, they still must satisfy the requirements of section 306 of the CZMA to receive program approval.(37) To satisfy section 306, states must identify coastal zone management area boundaries, describe permissible land and water uses within the coastal zone, locate areas of particular concern, establish how the state will exert control over the land and water uses in the coastal zone, and provide a description of the organizational structure of the management program.(38) Only after the state has demonstrated compliance with these and other requirements is it eligible for grants under sections 306, 306A, and 309 of the CZMA, and it is given federal consistency authority.(39) As of this writing, NOAA had approved the coastal management programs for thirty-three of the thirty-five coastal states and territories.(40)

   2. The Coastal Zone Act Reauthorization Amendments

      When Congress reauthorized and amended the CZMA as part of the Omnibus Budget Reconciliation Act of 1990,(41) it perceived that the CZMA's goal of "control[ling] land use activities which have a direct and significant impact on the coastal waters" had not been achieved.(42) To meet this goal more effectively, Congress created the section 6217 program.(43)

      Section 6217 has several purposes. Congress intended that the program enhance state and federal coordination, promote coordination between state coastal zone management programs and state water quality programs, and enhance state and local land use management efforts aimed at protecting coastal water quality.(44) The coordination aspect of the program was critical to Congress. Congress did not intend to dictate the roles of the state coastal management program or the state water quality agency; however, it did intend that they would have a dual and coequal role in the implementation of section 6217.(45) Congress wanted to encourage coordination between state coastal management programs and state water quality agencies because many states had established their coastal management programs under completely different agencies than their water quality agencies.(46) For instance, Wisconsin's coastal management program is located in the State Department of Administration, the Governor's arm of state government, but the Department of Natural Resources contains the state's water quality program.(47) Congress found a similar division in authority between NOAA and EPA.(48) Congress was concerned about this separation not only because scientific expertise is more likely to reside in the water quality agencies, but also because it wanted to avoid redundant efforts.(49) Congress designed section 6217 to complement the Clean Water Act's nonpoint source provisions, rather than to be duplicative or act as a surrogate to those provisions.(50) Congress felt that by enlisting the...