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

I. 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.

II. THE HISTORY OF THE COASTAL NONPOINT POLLUTION PROGRAM

A. 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)

B. 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 land use capabilities of coastal management programs in conjunction with the powers of the water quality agencies, the creation of section 6217 would "advance the national goal of protecting our coastal resources."(51)

To achieve the purposes of section 6217, Congress required that every state with an approved coastal management program develop and submit a Coastal Nonpoint Pollution Control Program (CNPCP) to NOAA and EPA for review.(52) Congress further required that the program submittal provide for implementation of EPA developed management measures.(53) To that end, the states were to identify enforceable policies and mechanisms that would allow them to implement the management measures.(54)

In 1993, NOAA and EPA jointly issued the Coastal Nonpoint Pollution Control Program Development and Approval Guidance (Program Guidance) to assist states in the development of program submittals.(55) NOAA and EPA designed the Program Guidance to clarify the statutory requirements of the CZMA. The statute requires a state to make revisions to the coastal zone boundary that are "necessary to control the land and water uses that have a significant impact on coastal waters of the state."(56) NOAA and EPA were to review the coastal zone boundary and then provide recommendations to the state regarding boundary modifications.(57) The Program Guidance provided that NOAA and EPA would expect the state to incorporate the recommendation into its program submittal unless the state could demonstrate that a different boundary was warranted.(58) Given NOAA and EPA's power to approve program submittals, these recommendations effectively resulted in a requirement for boundary modification, unless the state could demonstrate that the agencies were wrong.(59)

As specified in the CZMA, EPA issued its Guidance Specifying Management Measures for Sources of Nonpoint Source Pollution in Coastal Waters (Management Measures Guidance) in 1993.(60) The statute defined management measures as "economically achievable measures for the control of the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution, which reflect the greatest degree of pollutant reduction achievable through the application of the best available non-point pollution control practices...."(61) Congress selected this technology-based approach over a water-quality-based approach because it was concerned about the difficulty of establishing a causal relationship between land use practices and water quality.(62) According to the statute, the Management Measures Guidance must contain the management measures, identify activities for which the measures were appropriate, determine which pollutants the measures would control, evaluate the pollution reduction of each measure, estimate the cost of each measure, describe considerations for adapting each measure to specific sites, and develop monitoring techniques necessary to determine the success of the measures.(63) Congress wanted the Management Measures Guidance to be flexible so the states could adopt the measures that would best fit the local conditions and adapt them to their needs.(64)

The Management Measures Guidance identifies six categories of land use activities that could contribute to nonpoint source pollution: agriculture, forestry, urbanization, marinas and recreational boating, hydromodification, and wetland and riparian area protection and restoration.(65) Within these categories, the Management Measures Guidance identifies a number of subcategories of activities and associated management measures.(66) The Program Guidance requires that each state program submittal identifies how it would implement management measures to address each subcategory identified in the Management Measures Guidance.(67) The state could get an exemption from a subcategory if it could demonstrate that the subcategory or category was not present and was not anticipated to be present within the state's coastal zone.(68) The state could also get an exemption if it could demonstrate that the category or subcategory "[did] not and [was] not reasonably expected to, individually or cumulatively, present significant adverse effects to living coastal resources or human health."(69)

To have an approved program, a state must commit to implementing the management measures regardless of the quality of their coastal waters.(70) Congress intentionally established the program this way because of the perceived failures of the nonpoint provisions of the Clean Water Act, which require that states identify waters where water quality standards could not be met because of nonpoint sources of pollution.(71) Congress felt that a water-quality-based system like the one in the Clean Water Act would require the expenditure of too much money. Moreover, it felt that the money could be better spent on implementing management measures.(72)

The statute requires that every participating state submit a CNPCP to NOAA and EPA for review within thirty months of publication of the Management Measures Guidance.(73) The agencies have six months to review the proposal.(74) During that period, the agencies must consult with the states and permit them to amend their submittal to attain approval.(75) Both NOAA and EPA must approve a submittal for it to be incorporated into the state's coastal management program.(76) In addition to providing for informal and formal review of CNPCPs prior to submittal, the Program Guidance permits conditional approvals under limited conditions.(77) The Program Guidance allows states to receive conditional approval if they either can demonstrate an ability to adopt the necessary regulations or can ensure that local governments would adopt the necessary regulations.(78) The states would then have one year from the conditional approval to satisfy the conditions.(79) Conditional approval is not supposed to alter the timetable for the implementation of the management measures.(80)

Once a program receives approval, either conditional or final, the state is supposed to implement the management measures within three years.(81) The Program Guidance requires that states implement some of the management measures as soon as NOAA and EPA approve the program.(82) It also requires that states implement the management measures for new sources of nonpoint source pollution as soon as approval is granted, but it gives states three years to implement measures for existing sources.(83) Under the Program Guidance, the program submittal must contain benchmarks against which implementation can be measured, allowing EPA and NOAA to determine whether the state would achieve full implementation and to make adjustments if necessary.(84)

Under section 6217, failure to submit an approvable program by certain dates subjected states to a loss of federal funds.(85) If a state did not submit an approvable program by 1996, NOAA was required to reduce the state's administrative grants under section 306 by ten percent.(86) The amount withheld increased each subsequent year up to a maximum reduction of thirty percent.(87) In addition to a reduction of section 306 funds, the statute also provided for an equivalent percentage reduction of funds awarded under section 319 of the Clean Water Act.(88) EPA and NOAA were to make the withheld funds available to states with approved CNPCPs.(89)

C. Implementation of Section 6217

Although the Coastal Zone Act Reauthorization Amendments of 1990 set out a fairly clear process for implementation of section 6217, NOAA, EPA, and the states have not adhered to that process. Almost from the date Congress enacted the statute, states have pushed to alter its implementation. In response to pressure from the states, NOAA and EPA have changed the implementation of section 6217 from the requirements set out in the statute and in the Program Guidance.

The states resented section 6217 because they viewed it as an unfunded mandate.(90) This is an absurd view because participation in coastal management is voluntary, not mandatory. However, the states did have a legitimate concern. In section 6217, Congress only provided funding for development of CNPCPs. It did not provide funding to the states for implementation of the CNPCPs nor did it provide funding to offset the costs of compliance with the management measures.(91) In 1993, Congress only budgeted $1.8 million for development of CNPCPs, but the estimated yearly cost of compliance with the section 6217 management measures was between $390 and $590 million.(92)

During the 1994 congressional hearings regarding the reauthorization of the Coastal Zone Management Act, representatives of coastal states lobbied for relief from the requirements of section 6217.(93) They argued that the timetable established in the statute was impossible to meet, there was no federal funding to support implementation of the management measures, the program provided a disincentive to participate in the coastal management program for states not already participating, and the program in general was too inflexible.(94) They recommended that the program be altered to 1) increase the length of time for development of programs, 2) allow for more state flexibility in development of management measures, 3) permit voluntary measures to be included, and 4) eliminate the funding reduction for failure to submit an approvable program or create a conditional approval process that would not result in the reduction of funding as long as a state was making reasonable progress.(95) Even certain environmental organizations agreed with some of the states' concerns, supporting the states' requests for additional funding, changes in the timeframe for program submittal, and creation of incentives for state participation.(96) However, the environmental organizations opposed the states' proposal to use voluntary measures; they were adamant that Congress maintain the federal funding reduction provisions.(97) None of these suggestions were ultimately enacted in the Coastal Zone Protection Act of 1996, which reauthorized the Coastal Management Act.(98) The law made only a few minor changes to the CNPCP.(99)

After they failed to instigate changes to the Coastal Management Act as part of the reauthorization process, the states did not give up their attempts to alter or eliminate the CNPCP. In 1995, House Bill 961 was introduced to reauthorize the Clean Water Act.(100) One provision of that bill would have repealed section 6217, while incorporating some of its provisions into section 319 of the Clean Water Act.(101) The bill did not succeed, but it did receive support from some of the coastal states.(102)

Amid complaints by the Coastal States Organization and threats by states like Wisconsin to withdraw from the coastal management program because of section 6217, NOAA and EPA decided to retreat from the program approval standards in the Program Guidance.(103) In March 1995, NOAA and EPA published a document entitled Flexibility for State Coastal Nonpoint Programs (Flexibility Guidance), which contained significant revisions to the Program Guidance.(104) First, it expanded the scope of conditional approvals. The Flexibility Guidance provided that if a state submitted a conditionally approvable program by July 1995, then EPA and NOAA would not reduce the state's funding as long as it fulfilled all of the conditions within five years of conditional approval.(105) The Flexibility Guidance deleted the Program Guidance requirement that the state be able to demonstrate its ability to ensure adoption of the necessary regulations or ordinances in order to obtain conditional approval.(106)

The Flexibility Guidance also greatly expanded the timeframe for implementation of the management measures. The Program Guidance originally provided states three years after program approval to implement the management measures.(107) The Flexibility Guidance extended the deadline to the year 2004 for implementation of the management measures and 2009 for full program implementation.(108) This schedule was adjusted again in 1998 to provide that states had to establish five-year implementation plans and fifteen-year program strategies.(109) EPA and NOAA anticipated full implementation to occur within fifteen years of program approval.(110)

In 1998, EPA and NOAA issued the Final Administrative Changes to the Coastal Nonpoint Pollution Program Guidance (Final Administrative Changes).(111) This document essentially finalized the Flexibility Guidance. Importantly, the Final Administrative Changes clarified the voluntary measure approval standards initially established in the Flexibility Guidance. The Final Administrative Changes established that NOAA and EPA would approve voluntary or incentive-based measures when those measures are backed by existing state enforcement authorities. However, the state must provide a legal opinion that proves both that the state has back-up authority to enforce the management measures and that it commits to using those enforcement authorities where necessary.(112) This appears to be a stricter requirement than the one in the Flexibility Guidance. The Flexibility Guidance only required states to provide an explanation of how they proposed to use existing state authorities as a backup to the voluntary program.(113)

Even with NOAA and EPA's retreat from the requirements of CZARA, the coastal states continued to push for further weakening of section 6217. In 1998, the Coastal States Organization (CSO) sent a letter of response regarding the proposed administrative changes.(114) While the letter generally supported the changes, it pushed for more flexibility in using voluntary mechanisms.(115) The CSO wanted EPA and NOAA to approve both voluntary mechanisms that have demonstrated their effectiveness and backup mechanisms enforceable at the local level.(116) The CSO also objected to setting a definite deadline for full program implementation, even though the deadline had been extended to fifteen years.(117)

The National Governors' Association also expressed its support for further relaxation of the section 6217 requirements.(118) Its Natural Resource Policy #10 asked Congress and the President to make voluntary mechanisms the first step in addressing nonpoint problems.(119) It asked that state watershed programs be allowed to satisfy the section 6217 requirements and that states that were "working in good faith to complete development of their coastal nonpoint pollution control programs should not be subject to the penalty provisions of section 6217."(120)

D. State Coastal Nonpoint Pollution Program Submittals

Although the Flexibility Guidance deadline for program submittal was July 1995, all twenty-nine states and territories with approved coastal management programs did not submit nonpoint source programs until July 1996.(121) NOAA and EPA did not reduce the funding of any state that missed the deadline.(122) Once states submitted programs, EPA and NOAA reviewed them for compliance with the requirements of section 6217. Between October 1997 and July 1998, all twenty-nine state and territorial coastal programs received conditional approval of their nonpoint programs.(123) The majority of the submittals were deficient in almost every regard.(124) Most of the state submittals did not provide for implementation of the management measures or identify enforceable authorities for their implementation.(125) The conditions placed on the program submittals routinely required states to develop those mechanisms and authorities.(126) In essence, these were not conditions but actually rejections of the state submittals because they merely required the states to submit an approvable program within three years, as defined in the statute. EPA and NOAA may have been willing to call these rejections "conditional approvals" because they were afraid the states would follow through on their threats to withdraw from the coastal management program.(127)

Maryland and Rhode Island were the only states that came close to satisfying the Flexibility Guidance's weakened requirements. NOAA and EPA placed few conditions on those submittals, and by 1999 Maryland was able to satisfy all of the conditions to NOAA's and EPA's satisfaction.(128) In October 1999, EPA and NOAA published a notice of intent to grant Maryland full approval of its Coastal Nonpoint Pollution Control Program.(129) It had taken only nine years for a program to be approved(130)--four years after the deadline set in section 6217.(131)

E. Reauthorization of the Coastal Zone Management Act

The Coastal Zone Management Act is currently due for reauthorization, and in 1999, three separate bills were pending before Congress to do just that. The two bills in the Senate were very similar with respect to section 6217(132); however, the House Committee on Resources passed a bill that could have severely affected implementation of section 6217.(133) The bill that contained a property rights provision that had the potential to destroy the entire CZMA, rather than just section 6217.

The key issue both Senate bills addressed was implementation of the CNPCPs. Section 6217 does not authorize grants to the states for implementation of the CNPCPs(134); rather, it simply authorizes grants for the development of the CNPCPs.(135) The CNPCPs need implementation funding to offset program administration, enforcement, and monitoring costs.(136) Both Senate bills and an earlier House bill authorized this funding by permitting states to use sections 306 and 306A funds to implement their CNPCPs.(137)

As initially drafted, the Coastal Community Conservation Act of 1999 (CCCA) did not contain a mechanism for funding CNPCP implementation; however, during the House Subcommittee on Fisheries Conservation, Wildlife and Oceans mark up of the bill, it was amended to allow the use of 306 and 306A funds for CNPCP implementation.(138) Unfortunately, the House Committee on Resources subsequently repealed this amendment; when the bill was finally passed out of the committee, it did not contain a mechanism for providing funds for CNPCP implementation.(139) Perhaps more significantly, the full committee added a property rights amendment (the "Pombo amendment") to the bill.(140) The Pombo amendment stated:
 The Secretary--(1) shall not require a State, as a condition of any grant
 of funds under this title or the approval of a State plan under section
 306, to take any action that would constitute a use of non-Federal property
 for a public purpose without payment of just compensation; and (2) shall
 not under this title take private property for public use without payment
 of just compensation.(141)


The second clause appears to be superflous because it basically repeats the federal constitutional prohibition against taking without just compensation. Moreover, NOAA does not generally "take" property under this title.(142) However, the first clause had the potential to destroy the entire CZMA because it would have required compensation for "action that would constitute use" rather than requiring compensation for "taking for use." Democratic members of Congress expressed their concern that this provision would mean that "if grant approval conditions impose any restrictions on non-Federal property, payment of just compensation must occur in every case.... The practical effect would be to nullify or inhibit state and local implementation of coastal programs...."(143) The Department of Commerce also expressed similar concerns and stated that "[t]he Pombo amendment would ... render the national and state CZMA programs nonexistent and ineffective."(144) EPA similarly stated that it would push for a presidential veto of the bill if Congress passed it with the property rights amendment.(145)

Obviously, the property rights amendment, if enacted, would have had serious implications for section 6217. In fact, the first clause appears to be directed at eviscerating section 6217. The Pombo amendment would likely have required compensation to landowners for the use of their land to implement management measures, thereby making implementation prohibitively expensive. The House bill, like the two Senate bills, did not pass during 1999. In March 2000, out of frustration over the changes to the bill made by the Committee on Resources and his inability to introduce amendments that would reestablish funding for CNPCP implementation, the bill's author withdrew the bill from consideration.(146) Whatever form reauthorization finally takes, it seems unlikely that Congress or the President would allow a provision that undermines the entire CZMA, like the Pombo amendment, in the reauthorization of this statute.(147)

III. WHAT IS WRONG WITH SECTION 62177

While it may be an overstatement to call section 6217 a failure, it is clear that implementation has proceeded much more slowly than its creators envisioned when they determined that states that had not received approval of their programs by 1999 would have thirty percent of their coastal management and section 319 funds withheld.(148) Why has implementation taken so long? Is it a problem with the structure of the CZMA, a problem with the structure of section 6217, a problem with the implementation of the program by EPA and NOAA, or the result of intransigent behavior by the states? While the slow pace of implementation is probably the result of a combination of these factors, ultimately the fundamental problem is with the structure of section 6217 and the CZMA as a whole because they are the cause of the other problems.

A. Structure of the Coastal Zone Management Act

The structure of the Coastal Zone Management Act presents a difficult balance for implementing section 6217. Because participation in the CZMA is voluntary, any new requirements placed on states may cause them to withdraw from the federal coastal zone management program. Therefore, it is necessary to ensure that any new requirement does not burden states so much that it outweighs the benefits of having a coastal management program. If the requirement does overly burden a state, then even a state that is committed to protection of coastal resources may withdraw from the federal program and simply implement its own coastal management program under state authority.

The financial incentive for participation in the federal program may not be sufficient to keep states from leaving the program if they are forced to implement the management measures. The $758,000 to $2.765 million that each state receives to fund its coastal management program is a paltry sum when compared to the economic impact of compliance with the management measures.(149) Even those states that are enthusiastic about implementing a CNPCP may find that it makes financial sense to withdraw from the federal coastal management program rather than comply with the letter of the statute.

The consistency authority is a useful tool; however, it may also be insufficient incentive to keep states from withdrawing from the coastal management program because of statutory limitations on its effectiveness. First, a state must already have an enforceable policy in place in order to use its consistency authority.(150) The CZMA defines an enforceable policy as one that is legally binding; therefore, a state cannot object to something simply because it is contrary to the state's coastal management plan.(151) The state can only object when the policy is somehow given the force of law. Second, there are provisions that allow federal agencies to override state consistency objections.

Direct federal agency actions may only be consistent with a state's coastal management program "to the maximum extent practicable," and the President can override even inconsistent actions if "the activity is in the paramount interest of the United States."(152) The federal agency makes the determination as to whether its direct actions are consistent with a state's coastal management program; under the Administrative Procedure Act,(153) its decision is subject to the deferential "arbitrary and capricious" standard of review.(154) Therefore, even when a state believes a direct federal action is inconsistent with its coastal management plan, it is unlikely to win a case against a federal agency that believes otherwise.(155)

When a federal agency is issuing a permit or license rather than directly acting, a state has more control over the activity; however, even this control is limited.(156) Applicants for federal permits and licenses must certify that their projects are consistent with the state's enforceable policies, but the state may object to that certification.(157) The Secretary of Commerce may override the state's objections only if he finds "the activity is consistent with the objectives of this chapter or is otherwise necessary in the interest of national security."(158) The Secretary's decision to override a state objection is reviewed by courts under an arbitrary and capricious standard. Accordingly, the state bears a heavy burden to show that the Secretary did not consider relevant factors or that he made a clear error in judgment when making his decision.(159)

The consistency authority is redundant with authority given to states under the Clean Water Act. For instance, states frequently use consistency review when the U.S. Army Corps of Engineers issues dredge and fill permits under section 404 of the Clean Water Act or section 10 of the Rivers and Harbors Act.(160) Given the wide scope of state water quality review permitted under PUD No. 1 of Jefferson County v. Washington Dept. of Ecology (Jefferson County),(161) coastal consistency review of these permits serves little purpose. Under Jefferson County, if a state has concerns about the effects of a project, it can use its authority under section 401 of the Clean Water Act(162) to veto or condition the project even if the effects are not a result of the discharge that triggered the permit application.(163) In addition, a state may use its section 401 authority to review non-CWA federal permits and licenses in the coastal zone when there is a discharge into waters of the United States.(164) States also have the authority to enact laws that are stricter than the Clean Water Act.(165) Therefore, they may conceivably enact statutes that prevent many activities in coastal waters that do not comply with the state's coastal management program regardless of whether the state has federal consistency authority.(166)

B. Structure of Section 6217

The structure of section 6217 does not promote participation by states reluctant to develop a CNPCP because the funding reduction provisions are not sufficiently significant. EPA recognized this problem during the early phases of section 6217 implementation. EPA's Acting Assistant Administrator for Water, Martha Prothro, stated that, "given these state budget constraints, the penalty provision is not enough for a state to want to develop a nonpoint source program."(167)

The funding reduction provision applies only to grants under section 306 of the CZMA and section 319 of the Clean Water Act.(168) In 2000, states received between $766,000 and $2.765 million each under sections 306 and 306a of the CZMA.(169) The maximum funding reduction is a thirty percent reduction in section 306 funds;(170) therefore, states stand to lose between $230,000 and $830,000 per year in coastal management funds. When compared to the implementation and compliance costs of a CNPCP, this is hardly enough to push a reluctant state to develop a CNPCP. If a state wants to continue its coastal management program even after funding is reduced, it could make up the difference through funds from its state treasury.

While the section 319 funding reduction provisions provide a potentially more significant financial incentive for state CNPCP development, they are still insufficient to persuade reluctant states to develop CNPCPs. For fiscal year 2000, Congress appropriated $200 million for state section 319 programs.(171) States do not automatically receive all of that money. The first $100 million is automatically dispersed to states; however, for a state to access the remaining $100 million, it must meet the section 319 program upgrade requirements.(172) The section 319 program applies to all states and territories, not just the coastal states; therefore, the $200 million must be divided between all the states and territories.(173) Assuming EPA approves a state or territory's upgrade, the funds potentially available range from $533,600 for the territories to $10.6 million for California.(174) Therefore, the maximum funding reduction for failure to develop a CNPCP would be a loss of $3.2 million for the State of California. Even when combined with a maximum loss of $830,000 in CZMA section 306 funds, the potential loss to California of just over $4 million per year in federal funds probably does not represent a significant incentive to develop a CNPCP. The costs of compliance and implementation are simply too great for the loss of such small amounts of funding to provide a significant incentive for development of a CNPCP.

Another potential problem with the structure of section 6217 is that it provides a disincentive for new states to develop coastal management programs. If a state does not have a coastal management program, it does not have to implement a CNPCP with its attendant costs and requirements.(175) Non-participating states may not want to risk losing a percentage of their section 319 funds by not gaining approval for their CNPCP, so they may opt not to participate. However, this problem has not developed. When Congress passed section 6217, six coastal states had not developed coastal management programs.(176) Since passage, all of the states except Illinois and Indiana have developed approved programs, and Indiana is in the process of gaining approval.(177) States may develop coastal management programs in the face of disincentives because non-approved states do not have the same CNPCP timing requirements as the already approved states,(178) or states may make a calculated judgment that the program will not survive or will be so thoroughly weakened that the requirements will be easy to satisfy.

C. NOAA and EPA Implementation of Section 6217

As discussed above, the structure of the Coastal Zone Management Act and section 6217 creates a situation in which NOAA and EPA are afraid to put too much pressure on the states for fear that the states will withdraw from the entire CZMA program.(179) As a result, NOAA and EPA have repeatedly succumbed to state threats and have consistently failed to use the section 6217 funding reduction provision.(180) By not reducing state funding for failure to comply with section 6217, NOAA and EPA have encouraged states not to take the program requirements seriously and to push for further delays.

The lack of enforcement of the funding reduction provision has encouraged states to delay further development of programs. By delaying the development of a program, a state gives itself more time to decide whether to withdraw from the program or incur the expense of implementation. If a state ultimately withdraws from the program, it still retains the funding received from the federal government during the delay. If, on the other hand, a state decides to implement a program, it delays both the expense and the potential political fight associated with program implementation and compliance.

Delay also increases the chance that Congress will make sweeping changes to the CNPCP, which will relieve the states of the burden of implementing the program in its current form. Given the current conservative Congress, it is likely that whatever reauthorization bill Congress enacts will either weaken the CNPCP or leave it unchanged.(181) If the CNPCP is unchanged during reauthorization, it is probably because Congress views the current CNPCP as too weak to be worth changing.

NOAA and EPA's repeated acquiescence to the coastal states' lobbying also encouraged states to push for further administrative weakening of the program. When NOAA and EPA issued the Program Guidance, the states immediately began pressing for changes to the program.(182) In response, NOAA and EPA published the Flexibility Guidance, which significantly diminished the effectiveness of the program by expanding the conditional approval program.(183) However, the states continued to ask for relaxation of the provisions.(184) NOAA and EPA responded by publishing the Final Administrative changes, which diluted the effect of the program even further.(185) This did not mark the end of the state's push for weakening of the program, as demonstrated by the letter from the Coastal States Organization to NOAA and by the National Governors Association Natural Resources Policy Paper #10, which also pressed for the use of purely voluntary and incentive based measures.(186) Although NOAA and EPA did not weaken the CNPCP in response to the Coastal States Organization letter and have not responded to the National Governors Association, continued pressure on the agencies is perhaps inevitable given their willingness to acquiesce on prior occasions.

In addition to being unwise, NOAA and EPA's implementation of section 6217 has not conformed to the requirements of the statute. In the Flexibility Guidance, NOAA and EPA revised the timetables for program submittal.(187) Under this new timetable, the agencies determined that they would not reduce a state's funding unless it did not have final program approval by 2001.(188) This is in direct conflict with the statute, which requires that funding be reduced for failure to submit an approvable program by 1996.(189) To deal with this statutory provision, NOAA and EPA required the states to submit conditionally approvable programs by 1995.(190) The statute contains no reference to conditional approvals. It states that NOAA and EPA shall withhold funds if they find that a state "has failed to submit an approvable program as required by this section."(191) Section 6217 further provides that a CNPCP "shall provide for the implementation, at a minimum, of management measures...."(192) The "conditionally approvable" programs as defined by EPA and NOAA are not approvable programs as defined in section 6217 because they do not provide for implementation of the management measures.(193) Only after satisfaction of the conditions will they provide for the implementation of the management measures. Therefore, NOAA and EPA's implementation has not conformed to the requirements of the statute.

Although NOAA and EPA's administration of section 6217 has encouraged state delay, the agencies are constrained by the CZMA because it forces them to strike a delicate balance between imposing requirements on coastal states to achieve the CZMA's goals and avoiding state withdrawal from the program. If the requirements are too difficult for a state to meet, then it is liable to withdraw from the coastal management program. The only way to ensure that NOAA and EPA will be able to effectively respond to pressure from the states is for Congress to alter either section 6217 or the structure of the entire CZMA.(194)

D. State Coastal Nonpoint Pollution Control Program Submittals

The states have taken full advantage of the problems with the structure of section 6217 and NOAA and EPA's implementation of the program. In addition to the aforementioned legislative and administrative attacks on section 6217,(195) the states also have contributed to delaying implementation of section 6217 by submitting programs that clearly did not comply with the section 6217 requirements.(196) The requirements of the program are clearly set out in the statute and the Program Guidance, yet the states submitted programs that did not comply with those requirements.(197) The reasons for the insufficient submittals are varied. For some states, it is likely that the state simply could not change its statutes and regulations in time to meet the requirements. For others, it was possibly a desire to minimize the effects of the CNPCP on the state while still doing enough to avoid losing funding, at least for the time being.(198) Some states may not have cared to comply with the statutory requirements, either anticipating that the program would be changed or deleted during reauthorization or preparing for withdrawal from the program if their funding is actually reduced in 2001 as NOAA and EPA have threatened.(199)

States tried to avoid the program submittal requirements in several ways: 1) they attempted to alter the program boundary; 2) they tried to use purely voluntary measures; 3) they attempted to get exemptions from certain categories of management measures; 4) they failed to develop enforceable mechanisms of any kind; and 5) they proposed the use of management measures that did not conform to the Management Measures Guidance.(200) Many of the state submittals contained some aspects of all of these factors.

Perhaps the most obvious and frustrating way that states attempted to avoid the program requirements was by submitting programs with boundaries that did not comply with NOAA and EPA's recommended boundary modifications. For instance, Alabama tried to establish a very limited program boundary that included only "the waters ... and adjacent shorelands lying seaward of the continuous 10 foot contour."(201) NOAA and EPA had determined that Alabama's boundary should include the entire area of Alabama's two coastal counties.(202) Given that NOAA and EPA were required to recommend revisions to the state's coastal management boundary prior to program submittal, Alabama cannot claim that it simply did not understand what its boundary should be.(203) Similarly, Maine's submittal attempted to exclude areas from the coastal zone requirements.(204) It proposed to include in its boundaries only "those land areas that drain to waters downstream of lakes that flush less than 50 times per year or drain to the `major' rivers at or below specific locations listed by the state."(205) Likewise, Oregon attempted to exclude areas of the Umpqua, Rogue, and Columbia basins from its CNPCP boundary.(206) The boundary determination provision has been controversial since the passage of section 6217, and states have lobbied for more flexibility to set program boundaries.(207) However, it is clear that unless a state can demonstrate that NOAA and EPA's boundary recommendation is incorrect, it must incorporate that recommendation into the CNPCP to gain approval.(208) In light of this explicit requirement, the submittal of programs with boundaries other than the recommended boundaries demonstrates the states' unwillingness to comply with the statute.

Some states continue to insist on the use of solely voluntary measures to implement aspects of their programs. Louisiana proposed using education, technical assistance, and voluntary initiatives to implement aspects of the agricultural management measures.(209) While Louisiana has identified back-up authority that might apply if the voluntary program does not work, it is not clear that these back-up authorities would effectively implement the management measures.(210) Mississippi also proposed implementing its agricultural management measures through solely voluntary mechanisms.(211) It identified back-up mechanisms for implementing management measures if the voluntary measures fail; however, it has not demonstrated how these back-up mechanisms would be used to ensure implementation of the management measures.(212) The problem with allowing voluntary mechanisms is the difficulty in measuring their success. It is clearly unreasonable to expect that all states will voluntarily comply immediately. There must be a period of development. Therefore, it is difficult to determine whether the program has failed or if it just needs more time to develop. If a state waits too long, it will fail to address the nonpoint pollution problem. If the state resorts to the back-up mechanism too quickly, it is not really a voluntary program. To ensure an effective nonpoint program, NOAA and EPA should require states to use enforceable mechanisms as a first step, supported by voluntary and educational programs that can aid in developing new approaches to the nonpoint pollution problem and ensure that citizens understand and support the CNPCP.

Even when states did not rely solely on voluntary measures, their program submittals frequently did not contain enforceable mechanisms. For example, Oregon's program submittal proposed to implement its New Urban Development Management Measures through local governments; the submittal, however, did not demonstrate how the state would get local governments to enact changes to their plans to implement those measures.(213) There are numerous other examples of states failing to include enforceable mechanisms for the implementation of management measures.(214)

The states may not have had time to change their regulations and statutes to satisfy the Program Guidance requirements. EPA and NOAA published the Management Measures Guidance and the Program Guidance in January 1993, and the program submittals were due in July 1995.(215) Although two years may have been too little time to fully develop statutes and regulations, one would expect that NOAA and EPA would not have had to condition quite so many of the programs if the states had been serious about complying with the guidance. The lack of concern for developing programs should be evident by the rate at which states have obtained final approval. The fact that only Maryland, Rhode Island, and California have received final approval indicates that most states are not very serious.

The Flexibility Guidance permits a state to obtain exemptions if certain categories of pollution do not exist within a state's coastal zone or if the state can demonstrate that the category will not significantly effect coastal water quality.(216) States have used these exemptions in an attempt to avoid the statute's requirements. States filed exemption claims most frequently in the forestry category.(217) NOAA and EPA granted categorical or subcategorical exemptions in a few states like New York and Pennsylvania.(218) However, a number of states whose coastal waterbodies are impaired by forestry practices, including Louisiana, Mississippi, and Maine, also claimed the forestry exemption.(219) NOAA and EPA rejected their proposals and conditioned the states' program approvals on the development of enforceable mechanisms for forestry.(220) It may seem ridiculous for a state such as Louisiana to request an exemption for forestry; however, it makes more sense when one remembers the dispute over the setting of the CNPCP boundaries. If a state takes a narrow view as to what its CNPCP boundary should be, then it is reasonable for it to request an exemption for activities not located in that narrow zone. Of course, the Louisiana timber lobby is rather strong, so it may be that the state had to try for a forestry exemption to avoid being forced to withdraw from the program.(221)

States also attempted to avoid the section 6217 requirements by submitting programs that did not follow the Management Measures Guidance. For instance, Wisconsin proposed to implement an agricultural management measure that only limited the application of nitrogen, while the Management Measures Guidance specified that the management measure should address phosphorus as well.(222) In freshwater aquatic ecosystems, phosphorus is frequently the limiting nutrient, which means that increases in algal blooms and the resultant decreases in oxygen content are the result of phosphorus pollution. Therefore, managing only for nitrogen in the Great Lakes Basin is not nearly as effective as managing for nitrogen and phosphorus.(223) Most of the other states also have submitted programs that contain management measures not in conformance with the Management Measures Guidance.(224) These deficiencies may be the result of genuine disagreements about the best way to manage nonpoint pollution; however, EPA and NOAA requirements generally call for stricter measures, such as designing urban water quality facilities to handle larger storm events than states presently require.(225) As with states' failure to develop enforceable mechanisms, one possible reason for the lack of proper management measures may be that states ran out of time to change regulations and statutes to meet the Management Measures Guidance requirements.

IV. IMPROVING SECTION 6217

While it is certainly easy to criticize a program like section 6217, it is much more difficult to design a successful program. Congress is constrained not only by constitutional limitations on its ability to act but also by political realities. The recommendations that follow are an attempt to improve the program while recognizing current political realities.

A. Targeted Participation Incentives

The federal funding reduction provision of section 6217 punishes states that do not submit approvable programs by reducing their coastal management and CWA section 319 funding.(226) In addition to not providing a significant program participation incentive,(227) this provision, if it were ever enforced, would do more harm to the environment than good because it takes away funding from programs that may be helping the environment. By reducing a state's coastal management funding, the provision would decrease the state's ability to implement the other aspects of its coastal management program.(228) Even more absurd is the provision that reduces a state's section 319 funding. If NOAA and EPA actually enforced this provision, the CNPCP could have a net negative effect on nonpoint source pollution because the states would lose money they would otherwise have available to address nonpoint pollution.(229)

Instead of provisions that punish state environmental programs, Congress should include provisions that target budgets and programs promoting activities that contribute to nonpoint pollution. One of the categories of activity subject to management measures is forestry.(230) Rather than punish the state by reducing coastal management funding, it would be more sensible to reduce the number of National Forest timber sales in the coastal zone. This would have the dual effect of reducing the amount of nonpoint pollution coming from timber lands and of encouraging timber interests to lobby for the development of a CNPCP so that they could return to previous harvest levels.(231) Reducing harvest levels until the state develops a CNPCP would have the negative political effect of encouraging timber interests to lobby against section 6217 and for withdrawal from the coastal management program. However, without development and implementation of CNPCPs, there is little point to having section 6217.

To reduce agricultural nonpoint pollution, federal agencies could reduce federal agricultural subsidies and programs or could change the priorities for subsidy allocation in the coastal zone of states that do not develop CNPCPs.(232) To reduce other types of pollution, such as those resulting from marina development and the filling of wetlands, EPA could limit the issuance of National Pollution Discharge Elimination System permits and section 404 permits that would affect pollution in the coastal zone.(233) This would require not only amendment of the CZMA to permit EPA to impose these kinds of limitations for non-compliance with section 6217, but also amendment of the Clean Water Act to enable these limitations.

Another potential participation incentive is a reduction in federal transportation funds. For states that fail to develop a CNPCP, Congress could reduce the availability of coastal zone highway funds. A similar participation incentive provision is already in place under the Clean Air Act.(234) Under section 179 of the Clean Air Act, EPA can cut off transportation funding of states that fail to submit or enforce a State Implementation Plan. EPA has been successful in motivating states to comply with certain mobile source requirements under the Clean Air Act by using its statutory sanction of withholding federal transportation funds, which demonstrates the effectiveness of that type of provision.(235) In 1979, EPA successfully prodded Colorado and California into developing mobile source inspection and maintenance programs by threatening to withhold transportation funding.(236)

While targeted participation incentives are a more effective way of encouraging states to develop CNPCPs than reductions in CZMA and section 319 funding, Congress is not unfettered in its ability to develop such incentives. The Spending Clause of the U.S. Constitution restricts Congress's use of these incentives.(237) The Spending Clause requires that conditions placed on the receipt of federal funds must be 1) for the general welfare, 2) unambiguously expressed, and 3) related "to the federal interest in particular national projects or programs."(238) The targeted participation incentives suggested in this Comment should satisfy the first two conditions with little debate. The effects of nonpoint source pollution on the general welfare are well documented,(239) and given the deference Congress has in this area, it is unlikely that a court would overturn a congressional finding of a general welfare effect.(240) Satisfaction of the second condition is merely a matter of legislative drafting and therefore, should be easy to satisfy. Compliance with the third condition may be slightly more difficult, although courts generally have been unwilling to restrain congressional power under the Spending Clause.(241) Congress should be able to reduce agricultural subsidies without violating the third condition because of the natural resource protection provisions that already cover agricultural production.(242) While reducing transportation funding should still be possible under the Spending Clause, it may be slightly more difficult to justify than agricultural limitations. This is particularly true in light of Justice O'Connor's dissent in South Dakota v. Dole(243) in which she warned against a relaxed approach to the Spending Clause because it could result in Congress "effectively regulat[ing] almost any area of a State's social, political, or economic life on the theory that use of the interstate transportation system is somehow enhanced."(244) However, in the Intermodal Surface Transportation Efficiency Act of 1991,(245) Congress recognized the important connection between transportation and the environment when it stated that one of the act's purposes was "to develop a National Intermodal Transportation System that is economically efficient and environmentally sound."(246) Therefore, it should not be too difficult to demonstrate that control of nonpoint source pollution is related to the federal interest in funding transportation projects.(247)

B. Changing the Framework of the Coastal Nonpoint Pollution Program

As long as participation in the coastal management program is voluntary, the targeted participation incentives suggested above do not conflict with the Tenth Amendment restriction on federally mandated state governance because they do not require the states to regulate.(248) However, because these incentives have a potentially larger impact on state economies than reductions in CZMA or section 319 funds, they may upset the balance and cause states to withdraw from the coastal management program as a whole. The only way to ensure that state withdrawal from coastal management would not result in the collapse of section 6217 and possibly the CZMA would be to create a program that more closely resembles the Clean Water Act (CWA). Under the CWA, states have the option of implementing the program or allowing EPA to implement the program.(249) The best solution might be to entirely incorporate section 6217 into the CWA. In this way, the established infrastructure of the CWA can be used for efficiency. Unfortunately, considering its reluctance to give any of the existing CWA nonpoint pollution provisions teeth, Congress is unlikely to incorporate any mandatory nonpoint source programs into the CWA.(250)

C. Improvements to the Existing Program

While the revisions to section 6217 suggested in the previous two Parts might be politically too difficult to achieve, some minor changes could be made to section 6217 to make it more effective. The most obvious change is to set a concrete deadline for final program submittal and implementation so states know that they risk adverse consequences if they do not develop a program. NOAA and EPA must stick to that deadline and implement the funding reduction provisions if the states fail to comply. Otherwise, states will continue to delay for as long as they can to get the maximum amount of cash out of the coastal management program. The question is how to compel NOAA and EPA to stick to the deadlines. One solution is to threaten to cut the budget of the two agencies, although this might impair the agencies' ability to administer other important environmental programs.(251) Another possible solution is to threaten to take the CZMA program away from NOAA and give it to EPA if the funding reduction provisions are not implemented; neither agency would like to see this happen.(252) NOAA would not want to lose any authority or funding, and EPA would not want to be burdened with yet another program.(253) Of course, forcing NOAA and EPA to implement the funding reduction provisions may have some negative effects, such as causing states to withdraw from the federal coastal management program.(254)

Another change that could be made to the CZMA to help speed program development and implementation is to place restrictions on the use of section 306A funds. As discussed in the previous section, taking money away from the coastal programs may have a negative impact on the environment; however, restricting how it is spent could have some positive impacts as well as prompt states to develop CNPCPs. States currently use 306A funds for waterfront redevelopment projects and marina development.(255) As the Management Measures Guidance recognizes, these development activities have the potential to cause nonpoint pollution problems.(256) Therefore, it is logical to restrict the ability of the states to use coastal management funds for these projects until they have developed a CNPCP to deal with the deleterious effects of the projects. In addition, as a stop gap measure, Congress could require that funds not spent on marinas and waterfront redevelopment be spent on nonpoint pollution projects until states have submitted a CNPCP.

V. CONCLUSION

While it is too early to call section 6217 a failure, the amount of time it has taken to get a few states to meet NOAA and EPA's watered down requirements does not bode well for the long term success of the program. The Coastal Zone Management Act and section 6217 simply do not provide enough incentive or sufficient punishment to prompt reluctant states to develop a program. Success can be assured only by creating a mandatory program with targeted participation incentives. Unfortunately, it seems unlikely that any such mandatory program will be adopted by Congress given its reluctance to make any of the Clean Water Act's nonpoint source pollution provisions mandatory. There are a few minor changes that Congress could make to improve section 6217, such as restricting the use of coastal management funds in states without approved CNPCPs. It is doubtful, however, that these minor additional incentives will be sufficient to prompt reluctant states to participate. As it stands now, section 6217 has not come close to achieving the goals Congress set, and without significant changes, it may never achieve those goals.

(1) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(2) Drew Caputo, A Job Half Finished: The Clean Water Act After 25 Years, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,574, 10,575 (1997).

(3) Robert Adler, Integrated Approaches to Water Pollution: Lessons from the Clean Air Act, 23 HARV. ENVTL. L. REV. 203, 227-28 (1999); EPA, GUIDANCE SPECIFYING MANAGEMENT MEASURES FOR SOURCES OF NONPOINT POLLUTION IN COASTAL WATERS (1993) [hereinafter EPA, MANAGEMENT MEASURES GUIDANCE]. Nonpoint source pollution is pollution that runoff from rainfall and snowmelt picks up as it moves over and through the ground. The pollutants can come from natural sources, such as nutrients bound up in the soil, as well as anthropogenic sources such as agricultural pesticides. Id. at 1-1, 2-9.

(4) COAST ALLIANCE, POINTLESS POLLUTION: PREVENTING POLLUTED RUNOFF AND PROTECTING AMERICA'S COASTS 3 (1999). Nonpoint sources of pollution account for about ninety-four percent of the nitrogen pollution nationwide. Id. at 12.

(5) Id.

(6) Id. at 12-13.

(7) Id. at 17-18.

(8) Id. at 15.

(9) Id.

(10) The Coastal Zone Management Act of 1972, 16 U.S.C. [subsections] 1451-1465 (1994 & Supp. IV 1998).

(11) 136 CONG. REC. 26,033 (Sept. 26, 1990).

(12) Id.

(13) 16 U.S.C. [sections] 1455b (1994 & Supp. IV 1998).

(14) 136 CONG. REC. 37,191 (Oct. 27, 1990).

(15) 16 U.S.C. [sections] 1455b(a) (1994 & Supp. IV 1998).

(16) Id. [sections] 1455b(c)(3)-(4).

(17) Upon publication of the Environmental Protection Agency's (EPA) guidelines for coastal nonpoint management measures, Diane Cameron, an environmental engineer with the Natural Resources Defense Council, expressed her high expectations for the Coastal Nonpoint Pollution Control Program (CNPCP) when she stated that "[t]hese guidelines will prevent future harm to our nation's coastal waters from their greatest menace--polluted runoff from development and agriculture." Water Pollution: More Funds Needed for Coastal Nonpoint Source Programs, State Spokesman Says, [1993] Daily Env't Rep. (BNA) No. 10, at D-24 (Jan. 15, 1993).

(18) NOAA & EPA, Coastal Nonpoint Pollution Control Program: Approval Decision on Maryland Coastal Nonpoint Pollution Control Program, 64 Fed. Reg. 54,274 (Oct. 6, 1999); NOAA & EPA, Coastal Nonpoint Pollution Control Program: Approval Decision on Rhode Island Coastal Nonpoint Pollution Control Program, 65 Fed. Reg. 14,543 (Mar. 17, 2000); NOAA & EPA, Coastal Nonpoint Pollution Control Program: Approval Decision on California Coastal Nonpoint Program, 65 Fed. Reg. 25,311 (May 1, 2000); NOAA & EPA, Coastal Nonpoint Pollution Control Program: Approval Decision on Puerto Rico Coastal Nonpoint Program, 65 Fed. Reg. 53,703 (Sept. 5, 2000).

(19) Oliver A. Houck, TMDLS III: A New Framework for the Clean Water Act's Ambient Standards Program, 28 Envtl. L. Rep. (Envtl. L. Inst.) 10,415, 10,433 (1998).

(20) All three failed to pass during the 1999 session. Coastal Zone Management Act of 1999, S. 1534, 106th Cong. (1999); Coastal Stewardship Act, S. 1420, 106th Cong. (1999): Coastal Community Conservation Act of 1999, H.R. 2669, 106th Cong. (1999).

(21) JOSEPH J. KALO ET AL., COASTAL AND OCEAN LAW: CASES AND MATERIALS 202 (1999).

(22) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(23) Clean Air Act, 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997).

(24) KALO ET AL., supra note 21, at 202. While state administration of Clean Air Act and Clean Water Act programs is voluntary, if a state chooses not to administer those programs, the federal government will step in to administer them. The Coastal Management Act does not authorize the federal government to develop a coastal management program for states that choose not to participate. Id.

(25) Id. There is another significant difference between the 1972 version of the CZMA and the other environmental statutes passed during the early 1970s. The CZMA and part of the Endangered Species Act are the only environmental statutes administered by the National Oceanic and Atmospheric Administration (NOAA) under the Department of Commerce. 16 U.S.C. [subsections] 1453-1463 (1994 & Supp. IV 1998); 16 U.S.C. [sections] 1533 (1994) (the National Marine Fisheries Service is responsible for marine species under the Endangered Species Act). Congress has only recently given the EPA a role in administering the CZMA. See infra Part II.B (discussing EPA and NOAA's roles in administration of section 6217).

(26) 16 U.S.C. [sections] 1452 (1) (1994).

(27) 136 CONG. REC. 26,033 (Sept. 26, 1990).

(28) 118 CONG. REC. 14,170 (Apr. 25, 1972).

(29) KALO ET AL., supra note 21, at 202. While Congress recognized that in addition to state governments, local governments had land use management powers, it gave the power to develop coastal management programs to the states because they would be better able to deal with regional issues. However, Congress did envision significant state and local government interaction in coastal zone management. S. REP. NO. 92-753, at 5-6 (1972), reprinted in 1972 U.S.C.C.A.N. 4776, 4779-80.

(30) KALO ET AL., supra note 21, at 202.

(31) NOAA, FY 2000 Allotments and Award Numbers, at http://www.nos.noaa.gov/ocrm/czm/00finals.html (last modified May 2, 2000).

(32) KALO ET AL., supra note 21, at 202.

(33) The Coastal Zone Management Act of 1972, 16 U.S.C. [sections] 1456(c) (1994). The CZMA defines "enforceable polic[ies]" as "State policies which are legally binding ... by which a State exerts control over private and public land and water uses and natural resources in the coastal zone." 16 U.S.C. [sections] 1453(6a).

(34) KALO ET AL., supra note 21, at 202.

(35) Federal Water Pollution Control Act, 33 U.S.C. [sections] 1344 (1994).

(36) Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. [sections] 403 (1994); KALO ET AL., supra note 21, at 230, quoting NOAA, Bienniel Report to Congress on Coastal Zone Management--Fiscal Years 1988 and 1989 (1990); see generally M. David Kurtz, Note, Managing Alaska's Coastal Development: State Review of Federal Oil and Gas Lease Sales, 11 ALASKA L. REV. 377 (1994) (discussing the use of consistency determinations regarding the issuance of oil and gas leases under the Outer Continental Shelf Lands Act).

(37) 16 U.S.C. [sections] 1454(b) (1994). While developing their programs, states are eligible to receive program development grants under section 305. Id. [sections] 1454 (a) (1994 & Supp. IV 1998).

(38) Id. [sections] 1455(d)(2) (1994).

(39) Id. [subsections] 1455a, 1456b, 1456c, 1456d (1994 & Supp. IV 1998). In addition to the above requirements, the state must identify a planning process for protection and development of public beach access, for management of the impacts of energy facilities located in the coastal zone, and for the evaluation and potential for control of coastal erosion. Id. [sections] 1455. The state must also demonstrate it has coordinated its program with local and regional coastal management plans and it has established mechanisms for intergovernmental communication to ensure implementation of the coastal management plan. Id. [sections] 1455 (d)(3) (1994).

(40) NOAA Office of Ocean and Coastal Resource Management, Coastal Zone Management Program Home Page, at http://www.ocrm.nos.noaa.gov/czm.html (last visited Sept. 16, 2000). Of the two programs not approved, Indiana is currently developing a program, and Illinois is not participating. Id.

(41) Coastal Zone Act Reauthorization Amendments of 1990, Pub. L. No. 101-508, tit. VI, subtit. C, 104 Stat. 1388 (codified as amended at 16 U.S.C. [subsections] 1451-1465 (1994)). Congress has reauthorized the CZMA several other times; however, CZARA represents the most significant changes to the act. KALO ET AL., supra note 21, at 204.

(42) 136 CONG. REC. 26,033 (Sept. 26, 1990).

(43) Coastal Zone Act Reauthorization Amendments of 1990, tit. VI, subtit. C. In addition to creating section 6217, Congress amended the Coastal Zone Management Act in four other significant ways: 1) it overturned a recent Supreme Court case that limited the reach of consistency review (KALO ET AL., supra note 21, at 204; Secretary of the Interior v. California, 464 U.S. 312 (1984) (establishing that consistency determinations could not be made for leases made under the Outer Continental Shelf Lands Act)); 2) it established an enhancement grant program to promote achievement of CZMA's six coastal zone enhancement objectives; 3) it created the Walter B. Jones Excellence in Coastal Zone Management awards to recognize individuals and local governments for excellence in coastal management; and 4) it created the technical assistance program to support state programs. Coastal Zone Act Reauthorization Amendments of 1990, tit. VI, subtit. C.

(44) 136 CONG. REC. 37,191 (Oct. 27, 1990).

(45) Id.

(46) 136 CONG. REC. 26,037 (Sept. 26, 1990).

(47) Wisconsin Coastal Management Program Home Page, at http://www.doa.state.wi.us/dhir/boir/coastal.html (last visited Sept. 16, 2000); WIS. STAT. ANN. [sections] 281.01, 281.12 (West 1999).

(48) 136 CONG. REC. 26,037 (Sept. 26, 1990).

(49) Id.

(50) Id.

(51) S. REP. No. 101-445, at 5 (1990).

(52) 16 U.S.C. [sections] 1455b(a) (1994 & Supp. IV 1998).

(53) Id. [sections] 1455b(b).

(54) Id. [sections] 1455b(d) (16). The program submittal also was supposed to contain certain supplemental information, including identification of land uses contributing to the degradation of coastal water quality and critical coastal areas where more stringent protection than the standard management measures would be necessary to protect coastal water quality. Id. Section 6217 also required states to identify ways in which they would provide technical assistance to local governments to enable the implementation of management measures. Id. To promote the goal of interagency coordination, Congress required that, as a part of its program submittal, the state had to identify how its coastal zone management and water quality agencies would interact to effectively implement the CNPCP. Id.

(55) NOAA & EPA, COASTAL NONPOINT POLLUTION CONTROL PROGRAM DEVELOPMENT AND APPROVAL GUIDANCE V (1993) [hereinafter NOAA & EPA, PROGRAM GUIDANCE].

(56) 16 U.S.C. [sections] 1455b(e)(1) (1994 & Supp. IV 1998).

(57) Id.

(58) NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 10.

(59) Coastal Zone Act: Hearing Before the Subcomm. on Oceanography, Gulf of Mex., and the Outer Cont'l Shelf and the Subcomm. on Env't and Natural Res. of the House Comm. on Merch. Marines and Fisheries 103d Cong. 76 (May 24, 1994) [hereinafter Beam Testimony] (testimony of H. Wayne Beam, Chairman, Coastal States Organization).

(60) 16 U.S.C. [sections] 1455b(g) (1994 & Supp. IV 1998): EPA, MANAGEMENT MEASURES GUIDANCE, supra note 3.

(61) 16 U.S.C. [sections] 1455b(g)(5) (1994 & Supp. IV 1998).

(62) 136 CONG. REC. 37,191 (Oct. 27, 1990).

(63) 16 U.S.C. [sections] 1455b(g) (2) (1994 & Supp. IV 1998).

(64) 136 CONG. REC. 37,191-37,192 (Oct. 27, 1990).

(65) EPA, MANAGEMENT MEASURES GUIDANCE, supra note 3, at 1-7.

(66) Id.

(67) NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 12.

(68) Id. at 13.

(69) Id.

(70) 16 U.S.C. [sections] 1455b (1994 & Supp. IV 1998); NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 13.

(71) Federal Water Pollution Control Act, 33 U.S.C. [sections] 1329(a) (1994); 136 CONG. REC. 37,191 (Oct. 27, 1990).

(72) 136 CONG. REC. 37,191 (Oct. 27, 1990).

(73) 16 U.S.C. [sections] 1455b(a) (1994 & Supp. IV 1998).

(74) Id. [sections] 1455b(c).

(75) NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 46.

(76) 16 U.S.C. [sections] 1455b(c) (1994 & Supp. IV 1998).

(77) NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 43. The statute, however, does not provide for conditional approvals. See 16 U.S.C. [sections] 1455b(c) (1994 & Supp. IV 1998) (stating that EPA and NOAA will approve programs if they meet requirements of the statute; if programs do not meet the requirements, the agencies will withhold funding). For an analysis of the conditional approval process, see discussion infra Part II.C.-E.

(78) NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 43.

(79) Id. at 44.

(80) Id.

(81) Id. at 43.

(82) Id. at 45.

(83) Id.

(84) Id.

(85) 16 U.S.C. [sections] 1455b(c)(3) (1994 & Supp. IV 1998).

(86) Id.

(87) Id. Section 6217 only provides funding reduction for failure to submit an approvable program. It does not provide any incentives to ensure implementation of a CNPCP. Id. [sections] 1455b. A specific provision ensuring implementation of a CNPCP may, however, not be necessary. Upon approval of a CNPCP, a state is required to incorporate the CNPCP into its coastal zone management plan. Id. [sections] 1455b(c) (2). NOAA can suspend financial assistance to a coastal state if it finds during a performance review that the state is not adhering to its coastal zone management plan. Id. [sections] 1458(c)(1) (1994). Therefore, a state would probably be subject to suspension of its federal funding if it failed to implement an approved CNPCP.

(88) Id. [sections] 1455b(c)(4) (1994 & Supp. IV 1998). Section 319 of the Clean Water Act requires states to prepare assessment reports identifying waters that will not be able to meet water quality standards because of nonpoint sources. Federal Water Pollution Control Act, 33 U.S.C. [sections] 1329(a) (1994 & Supp. III 1997). The states are then required to develop management programs, which provide for identification and implementation of best management practices to control nonpoint source pollution. Once they have obtained approval from EPA, states are eligible to obtain federal financial assistance to implement their programs. PERCIVAL ET AL., ENVIRONMENTAL REGULATION, LAW, SCIENCE, AND POLICY 971 (1996).

(89) 16 U.S.C. [sections] 1455b(c) (1994 & Supp. IV 1998).

(90) Coastal Zone Act: Hearing Before the House Subcomm. on Oceanography, Gulf of Mexico, and the Outer Cont'l Shelf and the Subcomm. on Env't and Natural Res. of the House Comm. on Merch. Marines and Fisheries, 103d Cong. 14 (June 28, 1994) [hereinafter Donahue Testimony] (testimony of Michael J. Donahue, Executive Director, Great Lakes Commission).

(91) 16 U.S.C. [sections] 1455b(f) (1994 & Supp. IV 1998). Congress did not intend to cover all of the costs of CNPCP development. Instead, it required states to provide funds to match any provided by the federal government. Id.

(92) Water Pollution: More Funds Needed for Coastal Nonpoint Source Programs, State Spokesman Says, supra note 17, at D-24. Funding for section 6217 has increased only slightly since 1993. In 2000, the federal government gave just $2,500,000 to state CNPCP programs. FY 2000 Allotments and Award Numbers, supra note 31.

(93) Donahue Testimony, supra note 90, at 14.

(94) Id. at 14-15.

(95) Id. at 15; Coastal Zone Act: Hearing Before the Subcomm. on Oceanography, Gulf of Mex., and the Outer Cont'l Shelf and the Subcomm. on Env't and Natural Res. of the House Comm. on Merchant Marines and Fisheries, 103d Cong. 61 (June 28, 1994) (testimony of Peter M. Douglas, Executive Director, California Coastal Commission); Beam Testimony, supra note 59, at 76-78.

(96) Coastal Zone Act: Hearing Before the Subcomm. on Oceanography, Gulf of Mex., and the Outer Cont'l Shelf and the Subcomm. on Env't and Natural Res. of the House Comm. on Merch. Marines and Fisheries, 103d Cong. 73-75 (June 28, 1994) (testimony of Sarah Chasis, on behalf of Natural Resources Defense Council, Coast Alliance, Sierra Club, and American Oceans Campaign).

(97) Id.

(98) Coastal Zone Protection Act of 1996, Pub. L. No. 104-105, 110 Stat. 1380 (codified at 16 U.S.C. [subsections] 1451-1465 (Supp. IV 1998)).

(99) Id.

(100) 141 CONG. REC. 12, 407 (May 10, 1995).

(101) Id. at 12,408.

(102) Id at 12,503-12,508.

(103) Id. at 12,458; Letter from H. Wayne Beam, Chairman, Coastal States Organization to Carol M. Browner, Administrator, U.S. Environmental Protection Agency and Dr. James Baker, Undersecretary of Commerce (Dec. 5, 1994) (on file with author).

(104) Memorandum from EPA & NOAA, Flexibility for State Coastal Nonpoint Programs, to H. Wayne Beam, Chairman, Coastal States Organization 1 (March 16, 1995) (on file with author) [hereinafter EPA & NOAA, Flexibility Guidance].

(105) Id. at 2.

(106) See id.; NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 43.

(107) NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 43-44.

(108) EPA & NOAA, Flexibility Guidance, supra note 104, at 3.

(109) EPA & NOAA, Final Administrative Changes to the Coastal Program Guidance for Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 [hereinafter EPA & NOAA, Final Changes], available at http://www.ocrm.nos.noaa.gov/czm/6217admin_chnges.html (last visited Oct. 9, 2000).

(110) Id.

(111) Id.

(112) Id. Examples of back-up authority acceptable to NOAA and EPA include "`bad actor' laws, enforceable water quality standards, general environmental laws and prohibitions, and other existing authorities that will accomplish the implementation of the management measures without requiring new, more specific authorities." EPA & NOAA, Flexibility Guidance, supra note 104, at 8.

(113) EPA & NOAA, Flexibility Guidance, supra note 104, at 9.

(114) Letter from Tony MacDonald, Coastal States Organization, to Joe Uravitch, Chief Coastal Program Division, Office of Ocean and Coastal Resource Management (May 21, 1998), available at http://www.sso.org/cso/6217_admin_chnges.htm (last visited Oct. 9, 2000).

(115) Id.

(116) Id.

(117) Id.

(118) National Governors' Association, Natural Resource Policy #10--Coastal Zone Management (1999), available at http://www.nga.org/pubs/policies/nr/nr10.asp.htm (last visited Oct. 5, 2000).

(119) Id.

(120) Id.

(121) NOAA & EPA, Findings for the Hawaii Coastal Nonpoint Program 1 (1998) (Hawaii, the last state to submit a nonpoint program, gave its proposal to NOAA and EPA in July of 1996), available at http://www.ocrm.nos.noaa.gov/czm/6217/findings.html (last visited Oct. 7, 2000).

(122) Houck, supra note 19, at 10,433.

(123) See NOAA & EPA, Coastal Nonpoint Pollution Control Program: Conditional Approvals, Findings Documents, Responses to Comments, and Records of Decision, 63 Fed. Reg. 37,094 (July 9, 1998); NOAA & EPA, Coastal Nonpoint Pollution Control Program: Conditional Approvals, Findings Documents, Responses to Comments, and Records of Decision, 63 Fed. Reg. 11,655 (Mar. 10, 1998); NOAA & EPA, Coastal Nonpoint Pollution Control Program: Conditional Approvals, Findings Documents, Responses to Comments, and Records of Decision, 62 Fed. Reg. 64,359 (Dec. 5, 1997); NOAA & EPA, Coastal Nonpoint Pollution Control Program: Conditional Approvals, Findings Documents, Responses to Comments, and Records of Decision, 62 Fed. Reg. 58,940 (Oct. 31, 1997); NOAA & EPA, Coastal Nonpoint Pollution Control Program: Conditional Approvals, Findings Documents, Responses to Comments, and Records of Decision, 62 Fed. Reg. 58,941 (Oct. 31, 1997).

(124) Houck, supra note 19, at 10,433.

(125) See NOAA & EPA, Alabama Coastal Nonpoint Program Findings and Conditions (1998); NOAA & EPA, Findings for the Alaska Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Connecticut Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Delaware Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Florida Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Hawaii Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the California Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Louisiana Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Maine Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Maryland Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Massachusetts Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the New Hampshire Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Michigan Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Mississippi Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the New Jersey Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the New York Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the North Carolina Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Pennsylvania Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Oregon Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Rhode Island Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the South Carolina Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Virginia Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Washington Coastal Nonpoint Program (1998); NOAA & EPA, Findings for the Wisconsin Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the American Samoa Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Commonwealth of the Northern Mariana Islands Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Guam Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Puerto Rico Coastal Nonpoint Program (1997); NOAA & EPA, Findings for the Virgin Islands Coastal Nonpoint Program (1997) [hereinafter NOAA & EPA, State CNPCP Findings], all available at http://www.ocrm.nos.noaa.gov/czm/ 6217/findings.html (last visited Oct. 7, 2000).

(126) See supra note 125.

(127) See 141 CONG. REC. 12,458 (May 10, 1995) (Wisconsin threatens to withdraw); Letter from Douglas K. Hall, Assistant Secretary to Oceans and Atmosphere, NOAA and Robert Perciasepe, Assistant Administrator for Water, U.S. EPA, to Dr. H. Wayne Beam, Chairman, Coastal States Organization (Jan. 6, 1995) (discussing conditional approvals) (on file with author); Letter from H. Wayne Beam, supra note 103 (general state threat to withdraw).

(128) NOAA & EPA, Findings for the Maryland Coastal Nonpoint Program, supra note 125; NOAA & EPA, Findings for the Rhode Island Coastal Nonpoint Program, supra note 125; NOAA & EPA, Maryland Coastal Nonpoint Program NOAA/EPA Decisions on Conditions of Approval (1999), available at http://www.ocrm.nos.noaa.gov/czm/6217/welcome.html (last visited Oct. 20, 2000).

(129) NOAA & EPA, Coastal Nonpoint Pollution Control Program: Approval Decision on Maryland Coastal Nonpoint Pollution Control Program, 64 Fed. Reg. 54,274 (Oct. 6, 1999). NOAA and EPA have subsequently approved the Rhode Island, California, and Puerto Rico coastal nonpoint programs. NOAA & EPA, Coastal Nonpoint Pollution Control Program: Approval Decision on Rhode Island Coastal Nonpoint Pollution Control Program, 65 Fed. Reg. 14,543 (Mar. 17, 2000); NOAA & EPA, Coastal Nonpoint Pollution Control Program: Approval Decision on California Coastal Nonpoint Program, 65 Fed. Reg. 25,311 (May 1, 2000); NOAA & EPA, Coastal Nonpoint Pollution Control Program: Approval Decision on Puerto Rico Coastal Nonpoint Program, 65 Fed. Reg. 53,703 (Sept. 5, 2000).

(130) 64 Fed. Reg. at 54,274; Coastal Zone Act Reauthorization Amendments of 1990, Pub. L. No. 101-508, 104 Stat. 1388 (codified as amended at 16 U.S.C. [subsections] 1451-1465 (1994)).

(131) 16 U.S.C. [sections] 1455b(a), (c)(3)-(4) (1994 & Supp. IV 1998).

(132) Coastal Zone Management Act of 1999, S. 1534, 106th Cong. (1999); Coastal Stewardship Act, S. 1420, 106th Cong. (1999).

(133) Coastal Community Conservation Act of 1999, H.R. 2669, 106th Cong. (1999).

(134) See 16 U.S.C. [sections] 1455b (1994 & Supp. IV 1998) (containing no provision for implementation grants).

(135) Id. at [sections] 1455b(f). The program development grants have been ridiculously small. Only $1 million per year was appropriated to run the entire program between 1995 and 1998. Reauthorization of the Coastal Zone Management Act: Hearing on S. 1534 Before the Subcomm. on Oceans and Fisheries of the Senate Comm. on Commerce, Science, and Transp. 106th Cong.(May 6, 1999) (statement of Tim Eichenberg, on behalf of the Center for Marine Conservation, the American Oceans Campaign, Coast Alliance, and Natural Resources Defense Council), available at 1999 WL 16947476.

(136) NOAA & EPA, State CNPCP Findings, supra note 125.

(137) Coastal Zone Management Act of 1999, S. 1534, 106th Cong. (1999); Coastal Stewardship Act, S. 1420, 106th Cong. (1999); Coastal Enhancement Act of 1999, H.R. 1110, 106th Cong. (1999). This approach has received the support of at least one coastal state. Reauthorizatton of the Coastal Zone Management Act: Hearing on S. 1534 Before the Subcomm. on Oceans and Fisheries of the Senate Comm. on Commerce, Science, and Transp., 106th Cong. (May 6, 1999) (statement of David Keeley, State Planner, Maine State Planning Office), available at 1999 WL 293721. It may actually not be necessary to amend section 306 to permit expenditure of funds under that section for implementation of a CNPCP. An approved CNPCP must be incorporated into a state's coastal management program. 16 U.S.C. [sections] 1455b(c)(2) (1994). Furthermore, section 306 expressly provides that grants can be made under that section "for the purpose of administering that state's management program." Id. [sections] 1455 (a).

(138) H.R. REP. No. 106-485, at 10 (1999).

(139) Id. at 12.

(140) Id. at 14.

(141) Coastal Community Conservation Act of 1999, H.R. 2669, 106th Cong. (1999).

(142) As the first clause recognizes, the CZMA is implemented by state and local governments and not by NOAA. KALO ET AL., supra note 21, at 202.

(143) H.R. REP. No. 106-485, at 46.

(144) Id. at 51.

(145) Id. at 52.

(146) Coastal Groups Applaud Withdrawal of Crippled Coastal Protection Bill, U.S. NEWSWIRE, Mar. 17, 2000, available at 2000 WL 4142655.

(147) On September 28, 2000. the Senate passed bill S. 1534 under the name of the "Coastal Zone Management Act of 2000." This bill reauthorizes the Coastal Zone Management Act and authorizes funding through the year 2004. The House has not yet acted on this bill. Marine Protection Bills Pass Senate, ENVTL. NEWS SERV., Oct. 16, 2000, available at 2000 WL 7840028.

(148) 16 U.S.C. [sections] 1455b(c) (3) (1994 & Supp. IV 1998).

(149) Water Pollution: More Funds Needed for Coastal Nonpoint Source Programs, State Spokesman Says, supra note 17; FY 2000 Allotments and Award Numbers, supra note 31. Management measure compliance will certainly provide economic benefits, such as improved recreational and commercial fishing opportunities (See COAST ALLIANCE, supra note 4, at 12-14 (discussing the economic impact of nonpoint source pollution on the shellfish industry)); however, the benefits may seem hypothetical to those required to bear the cost of compliance.

(150) 16 U.S.C. [sections] 1456(c)(1)(A) (1994).

(151) Id. [sections] 1453(a)(6).

(152) Id. [sections] 1456(c)(1).

(153) 5 U.S.C. [subsections] 551-559, 701-706 (1994 & Supp. IV 1998).

(154) Kurtz, supra note 36, at 385.

(155) See Louisiana v. Lujan, 777 F. Supp. 486, 489 (E.D. La. 1991) (holding that determination by the Department of the Interior that the Outer Continental

Shelf sale was consistent with Louisiana's coastal management program was not arbitrary and capricious).

(156) 16 U.S.C. [sections] 1456(c)(3)(A) (1994).

(157) Id.

(158) Id.: Ronald J. Rychlak, Coastal Zone Management and the Search for Integration, 40 DEPAUL L. REV. 981, 993 (1991).

(159) North Carolina v. Commerce Dep't, [1995] 42 Env't Rep. Cas. (BNA) 1,254, 1,259-60 (D.D.C. 1995).

(160) Federal Water Pollution Control Act, 33 U.S.C. [sections] 1344 (1994 & Supp. III 1997); Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. [sections] 403 (1994).

(161) 511 U.S. 700, 734 (1994).

(162) 33 U.S.C. [sections] 1341 (1994 & Supp. IV 1998).

(163) Jefferson County, 511 U.S. at 712. Consistency review does have an important advantage over section 401 certification. Unlike section 401, consistency does not require a discharge into the waters of the U.S. It is triggered when "any land or water use or natural resource of the coastal zone" is affected. 16 U.S.C. [sections] 1456(c) (1994 & Supp. IV 1998). Therefore, actions such as Outer Continental Shelf sales require a consistency determination even though they do not involve a discharge. Louisiana v. Lujan, 777 F. Supp. 486, 488-89 (E.D. La. 1991).

(164) Jefferson County, 511 U.S. at 722-23.

(165) 33 U.S.C. [sections] 1370 (1994).

(166) Furthermore, it is not clear what additional authority a state gains through its consistency authority beyond its police powers. Rychlak, supra note 158, at 993.

(167) Water Pollution: More Funds Needed for Coastal Nonpoint Source Programs, State Spokesman Says, supra note 17, at D-24.

(168) 16 U.S.C. [sections] 1455b (1994 & Supp. IV 1998); 33 U.S.C. [sections] 1329 (1994 & Supp. IV 1998).

(169) FY 2000 Allotments and Award Numbers, supra note 31.

(170) 16 U.S.C. [sections] 1455b(c)(3) (1994 & Supp. IV 1998).

(171) EPA, Supplemental Guidance for the Award of Section 319 Nonpoint Source Grants in FY 2000, at http://www.epa.gov/owow/nps/Section319/fy2000.html (last modified Apr. 12, 2000).

(172) Id.

(173) See id. (listing section 319 grant allocation amounts for all fifty states); 33 U.S.C. [sections] 1329 (1994 & Supp. III 1997) (requiring the governor of each state to develop nonpoint program).

(174) Supplemental Guidance for the Award of Section 319 Nonpoint Source Grants in FY 2000, supra note 171.

(175) 16 U.S.C. [sections] 1455b(a) (1994 & Supp. IV 1998).

(176) S. REP. No. 101-445, at 3 (1990),

(177) Coastal Zone Management Program Home Page, supra note 40.

(178) See 16 U.S.C. [sections] 1455b(a)(1) (1994 & Supp. IV 1998).

(179) See supra Part III.A-B.

(180) See supra Part II.C.

(181) See John P. Almeida, Note, Nonpoint Source Pollution and Chesapeake Bay Pfiesteria Blooms: The Chickens Come Home to Roost, 32 GA. L. REV. 1195, 1204 (1998) (discussing that the current climate in Congress makes it unlikely that a federal program will remedy the nonpoint source pollution problem in the Chesapeake region).

(182) Letter from H. Wayne Beam, supra note 103.

(183) EPA & NOAA, Flexibility Guidance, supra note 104, at 1.

(184) 141 CONG. REC. 12,458, 12,503 (May 10, 1995).

(185) See supra Part II.C (discussing how these documents weakened section 6217 implementation).

(186) Letter from Tony MacDonald, supra note 114; National Governors Association, Natural Resource Policy #10--Coastal Zone Management, supra note 118.

(187) NOAA & EPA, Flexibility Guidance, supra note 104, at 3-4.

(188) Id. at 3.

(189) 16 U.S.C. [sections] 1455b(c) (1994 & Supp. IV 1998).

(190) NOAA & EPA, Flexibility Guidance, supra note 104, at 1-2.

(191) 16 U.S.C. [sections] 1455b(c) (1994 & Supp. IV 1998).

(192) Id. [sections] 1455b(b).

(193) NOAA & EPA, Flexibility Guidance, supra note 104 at 2; 16 U.S.C. [sections] 1455b(c)(2) (1994 & Supp. IV 1998).

(194) See infra Part IV (recommendations for improving section 6217).

(195) See supra Parts II.C & III.C.

(196) NOAA & EPA, State CNPCP Findings, supra note 125.

(197) Id.

(198) Houck, supra note 19, at 10,433.

(199) See Letter from H. Wayne Beam, supra note 103 (asserting that states will withdraw unless NOAA and EPA change requirements of [sections] 6217).

(200) NOAA & EPA, State CNPCP Findings, supra note 125.

(201) NOAA & EPA, Alabama Coastal Nonpoint Program Findings and Conditions, supra note 125. Alabama's definition of its coastal zone meant that only "the shorelands of the Gulf of Mexico, a narrow band along Mobile Bay, the lowland areas along the major tributaries to Mobile Bay that lie within Mobile and Baldwin Counties [and] [l]ands adjacent to Perdido Bay and the lower Blackwater River" were included in the coastal zone. Id.

(202) Id.

(203) 16 U.S.C. [sections] 1455b(e) (1994 & Supp. IV 1998).

(204) NOAA & EPA, Findings for the Maine Coastal Nonpoint Program, supra note 125.

(205) Id.

(206) NOAA & EPA, Findings for the Oregon Coastal Nonpoint Program, supra note 125.

(207) Beam Testimony, supra note 59, at 76; Letter from H. Wayne Beam, supra note 103.

(208) NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 9-10.

(209) NOAA & EPA, Findings for the Louisiana Coastal Nonpoint Program, supra note 125.

(210) Id. Alabama has developed a similar purely voluntary mechanism for its agricultural sources. NOAA & EPA, Findings for the Alabama Coastal Nonpoint Program, supra note 125.

(211) NOAA & EPA, Findings for the Mississippi Coastal Nonpoint Program, supra note 125.

(212) Id.

(213) NOAA & EPA, Findings for the Oregon Coastal Nonpoint Program, supra note 125.

(214) For a summary of the conditions imposed on state program submittals, see COAST ALLIANCE, supra note 4, at app. A.

(215) NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at Foreword; 16 U.S.C. [sections] 1455b(a)(1) (1994 & Supp. IV 1998).

(216) EPA & NOAA, Flexibility Guidance, supra note 104, at 5.

(217) See NOAA & EPA, State CNPCP Findings, supra note 125 (Connecticut, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Wisconsin applied for full or partial exemption from the forestry category).

(218) NOAA & EPA, Findings for the New York Coastal Nonpoint Program, supra note 125; NOAA & EPA, Findings for the Pennsylvania Coastal Nonpoint Program, supra note 125.

(219) NOAA & EPA, Findings for the Louisiana Coastal Nonpoint Program, supra note 125; NOAA & EPA, Findings for the Mississippi Coastal Nonpoint Program, supra note 125; NOAA & EPA, Findings for the Maine Coastal Nonpoint Program, supra note 125.

(220) NOAA & EPA, Findings for the Louisiana Coastal Nonpoint Program, supra note 125; NOAA & EPA, Findings for the Mississippi Coastal Nonpoint Program, supra note 125; NOAA & EPA, Findings for the Maine Coastal Nonpoint Program, supra note 125.

(221) Houck, supra note 19, at 10,434.

(222) NOAA & EPA, Findings for the Wisconsin Coastal Nonpoint Program, supra note 125.

(223) NAT'L RESEARCH COUNCIL, MANAGING WASTEWATER IN COASTAL URBAN AREAS 183-87 (1993).

(224) See NOAA & EPA, State CNPCP Findings, supra note 125 (stating that only Maryland submitted a program that fulfilled the requirements of all management measures in each category).

(225) EPA, MANAGEMENT MEASURES GUIDANCE, supra note 3, at 4-13.

(226) 16 U.S.C. [sections] 1455b(c) (1994 & Supp. IV 1998).

(227) See supra Part III.B.

(228) 16 U.S.C. [sections] 1455b(c) (1994 & Supp. IV 1998).

(229) Id. [sections] 1455b(c)(4); 33 U.S.C. [sections] 1329 (1994).

(230) EPA, MANAGEMENT MEASURES GUIDANCE, supra note 3, at 3-1.

(231) This assumes that the management measures would not be so burdensome on the timber industry that implementation of the management measures would reduce its profits below what it is making under the reduced harvest levels.

(232) The Farm Service Agency under the United States Department of Agriculture administers a number of price and income support programs. Department of Agriculture Reorganization Act of 1994, 7 U.S.C. [sections] 6932 (1994 & Supp. IV 1998).

(233) 33 U.S.C. [subsections] 1342, 1344 (1994).

(234) 42 U.S.C. [sections] 7509(b) (1994).

(235) Adler, supra note 3, at 249. Under section 176 of the Clean Air Act, the Secretary of Transportation was required to withhold highway funds at the request of EPA when a state failed to implement transportation controls contained in its SIP. Penny Mintz, Transportation Alternatives within the Clean Air Act: A History of Congressional Failure to Effectuate and Recommendations for the Future, 3 N.Y.U. ENVTL. L.J. 156, 178 (1994). This section was repealed in the 1990 Amendments to the Clean Air Act. Pub. L. No. 101-549, 104 Stat. 2470 (codified at 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997)).

(236) Mintz, supra note 235, at 178.

(237) U.S. CONST. art. I, [sections] 8, cl. 1.

(238) South Dakota v. Dole, 483 U.S. 203, 207 (1987). (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978)).

(239) See COAST ALLIANCE, supra note 4, at 12-14 (describing impairment to shellfish beds and fishery resources caused by nonpoint pollution).

(240) South Dakota v. Dole, 483 U.S. at 207.

(241) See id. at 206-09. The Supreme Court has not struck down a congressional act based on the Spending Clause since 1936. Id. at 216 (O'Connor, J., dissenting).

(242) For example, production of a commodity crop on a converted wetland results in ineligibility for certain loans and assistance programs. 16 U.S.C. [sections] 3821 (1994 & Supp. IV. 1998).

(243) 483 U.S. 203 (1987).

(244) Id. at 215.

(245) Intermodal Transportation Efficiency Act of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (codified as amended at 49 U.S.C. [sections] 5501 (1994)).

(246) Id. At least one commentator has questioned the ability of Congress to condition receipt of federal transportation funds on submittal and implementation of a Clean Air Act State Implementation Plan. Jeffrey Geiger, Note, Canary in a Coal Mine? Federalism and the Failure of the Clean Air Act Amendments of 1990, 20 WM. & MARY ENVTL. L. & POL'Y REV. 81, 101-03 (1995).

(247) South Dakota v. Dole, 483 U.S. at 215.

(248) Courts have determined that, under the Tenth Amendment, the federal government cannot compel states to enact or enforce a federal regulatory program. See New York v. United States, 505 U.S. 144, 162 (1992) (holding that Congress cannot force states to choose between enacting legislation that provides for the disposal of radioactive waste generated within the state or taking title to the waste because the federal government cannot compel states to enact or administer a federal regulatory program); Printz v. United States, 521 U.S. 898, 935 (1997) (holding that Congress cannot command the officers of a state to enforce a federal act requiring background checks for handgun purchases).

(249) 33 U.S.C. [sections] 1342(b) (1994 & Supp. III 1997).

(250) Adler, supra note 3, at 228-29. Section 208 of the Clean Water Act requires states to develop areawide plans for control of nonpoint source pollution in return for funding, but contains no provision for federal implementation in states that do not participate. Id. EPA has stopped funding section 208 plans. PERCIVAL, supra note 88, at 970. Section 319 also requires states to prepare plans for the control of nonpoint source pollution in return for funding, and like section 208, it does not give EPA authority to prepare or implement plans when states refuse to participate. Adler, supra note 3, at 228.

(251) WILLIAM F. FUNK ET AL., ADMINISTRATIVE PROCEDURE AND PRACTICE 47 (1997).

(252) See Coastal Zone Act: Testimony Before the Subcomm. on Oceanography, Gulf of Mex., and the Outer Cont'l Shelf and the Subcomm. on Env't and Natural Res. of the House Comm. on Merch. Marines and Fisheries, 103d Cong. 62 (May 24, 1994) (statement by Robert H. Wayland III, Director, Office of Wetlands, Oceans, and Watersheds expressing support for the current statutory scheme). Currently, EPA's only formal role in administering the CZMA is its responsibility for portions of section 6217. 16 U.S.C. [subsections] 1451-1464 (1994 & Supp. IV. 1998).

(253) 136 CONG. REC. 26,066 (Sept. 26, 1990) (statement of Rep. Hertel).

(254) See supra Part III.B.

(255) 16 U.S.C. [sections] 1455a(c)(2) (1994 & Supp. IV 1998).

(256) NOAA & EPA, PROGRAM GUIDANCE, supra note 55, at 5-2, 5-3.

ANDREW SOLOMON, Associate Editor, Environmental Law, 2000-2001; J.D. and Certificate in Environmental and Natural Resources Law expected 2001, Northwestern School of Law of Lewis and Clark College; M.S. Land Resources 1994, University of Wisconsin -- Madison; B.A. History and Environmental Studies 1990, Bowdoin College. The author wishes to thank Professor Craig Johnston for his assistance during preparation of this Comment.
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Author:Solomon, Andrew
Publication:Environmental Law
Geographic Code:1USA
Date:Jan 1, 2001
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