The Coastal Nonpoint Pollution Program: Status and Legislative Issues

The Coastal Nonpoint Pollution Program: Status and Legislative Issues

Order Code RS20232
Updated January 25, 2001
CRS Report for Congress
Received through the CRS Web
The Coastal Nonpoint Pollution Program:
Status and Legislative Issues
name redacted
Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division
Summary
In 1990, Congress enacted legislation requiring coastal states and territories to
develop programs to help address the problem of nonpoint source pollution in coastal
waters, which are especially threatened by pressures of population growth, development,
and pollution. The coastal nonpoint pollution program is unique because it expressly
links federal and state coastal zone management and water quality programs. Coastal
states are now implementing these requirements. Congress has not changed the program
since its enactment, but one issue receiving attention is whether to integrate the coastal
nonpoint pollution program with activities under the Coastal Zone Management Act
(CZMA). In the 106th Congress, CZMA legislation passed the Senate (S. 1534), and a
separate bill was reported by a House committee (H.R. 2669), but no further action
occurred. Whether the coastal nonpoint program will receive attention in the 107th
Congress is unknown at this time. This report will be updated as developments warrant.
Introduction
Coastal environments face substantial challenges because of multiple pressures of
population growth, economic development, and pollution. Population densities of coastal
counties are five times the national average, and it is estimated that, from 1996 to 2015,
the coastal population will increase from 141 to 161 million persons. Besides supporting
people, coastal ecosystems support fisheries, prevent runoff, purify water supply, and
mitigate floods, while providing recreation and resources such as lumber, fuel, and food.
In coastal areas, water quality impairments have led to beach closures, prohibitions
on harvesting shellfish, and loss of biological productivity in coastal habitats. In addition,
the loss of wetlands and riparian areas, water withdrawals, and saltwater intrusion have
adversely impacted coastal water quality. Coastal waters are affected by both point and
nonpoint sources of pollution, with the latter in many cases the dominant form of
pollution. Point source pollution is discharged from factories and municipal sewage
treatment plants, usually from a pipe or defined outlet. Nonpoint source pollution is
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rainfall runoff and snowmelt from diverse areas including construction sites, city streets,
farms and ranches, and forests that is not released through pipes or other outlets.
Historically, the nation's water pollution control programs have emphasized managing
point source pollution. Yet, as those efforts have progressed, nonpoint source pollution
now represents a larger and more pervasive proportion of total water quality problems.
In the most recent data reported by states, nonpoint sources of water pollution are
estimated to contribute more than 50% of remaining water quality impairments in rivers,
lakes, and coastal waters. The leading nonpoint sources in coastal waters are diverse:
runoff from construction sites and development activities in urban areas, municipal point
source discharges, atmospheric deposition, and contaminated sediments.
The Coastal Zone Management Program
The 1972 Coastal Zone Management Act (CZMA, P.L. 92-583) created federal
incentives for coastal states and territories to plan and manage their coastal and ocean
resources. Its purpose is to encourage and assist states to exercise their responsibilities
in the coastal zone to achieve effective use of land and water resources. Eligible states
may develop coastal management programs pursuant to federal requirements. Under this
Act, the federal government's role is to provide grants for states to develop and implement
coastal zone management plans. The National Oceanic and Atmospheric Administration
(NOAA) in the Department of Commerce administers the programs authorized by the
CZMA. (For information on the CZMA, see CRS Report 98-1002, Oceans and Coastal
Resources Issues.) Once approved, coastal states then have a mechanism for managing
coastal development and become eligible for additional financial benefits through coastal
zone grant programs. The first state CZM program (Washington) was approved in 1974.
As of October 2000, 33 eligible coastal and Great Lakes states and territories have
federally approved CZM plans. Indiana’s plan is being prepared. Among eligible states,
only Illinois is not currently participating. NOAA estimates that 99.7% of the nation's
shoreline is under management of federally-approved coastal programs.
Under the CZMA, states and territories are eligible to receive several types of grant
assistance, including program development and administrative grants (Section 306),
resource management improvement grants (Section 306A), and coastal zone enhancement
grants (Section 309). One especially significant provision of the Act is Section 307, which
gives states with federally-approved CZM programs the right to review federal activities
in or affecting the coastal zone (including activities that require federal permits) to
determine whether they are consistent with the policies of the state's program.
CZARA: Enactment of the Coastal Nonpoint Pollution Program
Congress has reauthorized the CZMA several times, amending it in ways that reflect
changing views about issues that state programs might address. In 1990, Congress
enacted Section 6217 of the Coastal Zone Act Reauthorization Amendments (CZARA)
to help address the problem of nonpoint source pollution in coastal waters.1 In it,
1 Section 6217 did not amend the Clean Water Act or the Coastal Zone Management Act. It
contains independent provisions and was enacted as Section 6217 of the Omnibus Budget
(continued...)

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Congress acknowledged that there is a clear link between coastal water quality and land
use activities along the shore and directed that state programs under the CZMA should
play a larger role in improving coastal zone water quality. The central purpose of Section
6217 is to strengthen the links between state coastal zone management and water quality
programs by requiring coastal states to develop a nonpoint pollution control program to
restore and protect coastal waters. It is intended to update and expand the coastal portion
of state nonpoint source management programs under Section 319 of the Clean Water Act
(CWA).2 State coastal zone management agencies and state water quality agencies have
dual and co-equal roles and responsibilities in developing the program. It applies in states
and territories that receive federal funds to implement their approved coastal zone
programs. Because Section 6217 is mandatory, it represents a significant departure from
other provisions of the CZMA, which is a voluntary program to assist states in addressing
stated national objectives in coastal resource management, and also from Section 319.
CZARA employed an innovative approach. First, NOAA and the Environmental
Protection Agency (EPA) shared responsibility for developing the program's framework.
Second, states for the first time brought together the land-use management expertise of
their coastal zone agencies and the water quality expertise of their Section 319 agencies.
EPA and NOAA published two sets of guidance documents in January 1993. The
first specifies management measures for specific categories of nonpoint source pollution.
Management measures are defined in CZARA to be economically achievable measures that
reflect the best available technology for reducing nonpoint pollutants. In this technical
guidance, EPA identified five categories of nonpoint sources affecting coastal waters
(agriculture, forestry, urban, marinas and recreational boating, and hydromodification) and
for each category, management measures and practices to control nonpoint source
pollution. The decision of which measure or practice to apply to achieve the goal of
restoring and protecting coastal waters will be up to states.
Second, NOAA and EPA jointly issued guidance describing how states would
administratively develop their nonpoint pollution control programs, using management
measures in the related technical guidance document. States may select from a wide range
of practices to achieve the level of control specified in the management measure.
Coastal states were required to submit a coastal nonpoint plan for EPA and NOAA
approval, based on the two types of guidance, within 30 months of issuance of the
guidance (by July 1995). The plan is to ensure implementation of management measures
in conformity with the technical guidance, at a minimum to protect coastal waters
generally, and in coastal areas with degraded or threatened water quality, to ensure
implementation of additional measures to attain and maintain applicable water quality
standards under the Clean Water Act.
1 (...continued)
Reconciliation Act of 1990 (P.L. 101-508).
2 The Clean Water Act's Section 319 program, enacted in 1987, addresses nonpoint source
pollution through voluntary state management programs utilizing federal technical and financial
assistance. It provides states, territories, and Indian tribes with grants to implement nonpoint
source pollution controls described in EPA-approved nonpoint source pollution management
programs.

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Section 6217 authorized grants to assist states in developing coastal nonpoint
pollution plans: $6 million for FY1992 and $12 million annually for FY1993 through
FY1995. These grants are administered by NOAA. CZARA provided that, if a state
failed to submit an approvable program by 1996, NOAA and EPA would reduce federal
grants to the state under the coastal zone management and CWA Section 319 programs.
The penalty would initially be a 10% reduction under both programs in FY1996, gradually
reaching a 30% reduction in FY1999 and each fiscal year thereafter.
Program Status. In 1995, EPA and NOAA made certain administrative changes
to the program, based on initial reviews of the progress that coastal states were making
towards completing the required CZARA programs. The agencies agreed with states that
changes could make the program more flexible, while still achieving pollution reduction
goals. EPA and NOAA agreed to utilize conditional approval of state plans, where states
need additional time (up to 5 years) to complete development of plans, thus avoiding the
penalty of withholding federal grant funds. Also, time frames for implementing
management practices for existing sources were extended from 3 to 5 years. In addition,
states were given more deference in determining the geographic area to be covered by the
program, and NOAA and EPA expanded the range of what constitutes acceptable
management measures.
Further administrative changes were made in 1998, again to provide flexibility for
states. (For information, see: [http://www.nos.noaa.gov/ocrm/czm/6217/]). They were
given more flexibility in targeting nonpoint pollution sources, allowing exclusion of
sources which are not significant contributors to pollution. While allowing states greater
opportunity to determine priorities, EPA and NOAA required states to submit a program
strategy. It is to describe the state's overall approach and schedule to ensure
implementation of management measures and improve water quality within 15 years of the
date of conditional approval, along with more specific 5-year implementation plans nested
within the 15-year program strategy against which EPA and NOAA will measure progress.
Section 6217 does not specify timeframes for implementation.
The CZMA requires that state 6217 programs contain "enforceable policies and
mechanisms" to implement applicable requirements of their coastal nonpoint pollution
plans. Balancing among available restrictive or less restrictive tools to achieve policies for
controlling nonpoint pollution, particularly with respect to measures affecting individuals'
right to manage land uses, has been controversial and challenging. The statute defines
enforceable policies as state policies which are legally binding through constitutional
provisions, laws, regulations, land use plans, ordinances or similar means by which a state
"exerts control over private and public land and water uses and natural resources in the
coastal zone." The agencies' 1993 program guidance identified a variety of effective
regulatory (e.g., permits or local zoning) and/or non-regulatory approaches (e.g.,
economic incentives and disincentives) that states can use to meet this requirement.
Further, in 1998, the agencies clarified that under certain circumstances they will approve
program elements for which states propose voluntary or incentive-based mechanisms,
backed by existing state enforcement authorities such as a legal opinion stating that such
authority can be used to prevent nonpoint pollution and require management measure
implementation.

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EPA and NOAA granted the first conditional approval of state program submissions
in August 1997, and the last were conditionally approved in June 1998.3 Each conditional
approval contained findings which detail elements that the state is expected to expand or
modify in order to conform with the requirements of CZARA within 5 years. Program
implementation begins even while such changes are underway. Final program approval has
been given to Maryland, Rhode Island, California, and Puerto Rico.
Completing the conditional approval process and issuing the final guidance supported
a key action in President Clinton's 1998 Clean Water Action Plan. The Plan was an
Administration initiative seeking to build on water quality improvements of the past and
address remaining water pollution problems nationwide. The three goals of the Plan were
to achieve more effective control of nonpoint source pollution, enhance protection from
public health threats posed by water pollution, and promote water quality protection on
a watershed basis. (For information, see CRS Report 98-150, The Clean Water Action
Plan: Background and Early Implementation.)
Funding and Resources. A long-standing concern of states is adequacy of
resources to carry out the coastal nonpoint pollution program. For FY2001, Congress
appropriated $10 million for grants to develop and implement 6217 programs, in P.L. 106-
533 (compared with $2.5 million for FY2000). These are separate from CZMA grants
($52 million in FY2001), only a small portion of which (less than $4 million in FY2001)
may be used for the 6217 program. Needs for program implementation are greater than
for development. The CWA Section 319 grant program is one that has greater potential
to assist with implementation (but is not limited geographically to coastal states). FY2001
appropriations for Section 319 grants are $238 million (P.L. 106-377).
Congressional Interest
Congress has not modified the Section 6217 program or reauthorized its grants since
1990. During the 103rd Congress, committees heard testimony about the program and
general coastal pollution issues. Some issues discussed at that time, such as recognizing
the role of voluntary measures for managing nonpoint pollution and extending timeframes
for implementation, were subsequently addressed in revised EPA-NOAA program
guidance. One long-standing issue, however, is integration of the Section 6217 program
with other federal programs with potential for overlap or duplication, such as clean water
programs. In the 104th Congress, the House passed legislation to amend the Clean Water
Act (H.R. 961). One of its provisions would have modified the 6217 program to give
EPA the lead role in administering it and allow states the option of participating in either
the CZARA or CWA Section 319 nonpoint program. The Senate did not act on H.R. 961.
Congress reauthorized the CZMA in 1996 (P.L. 104-150) but made no changes to
CZARA. Current CZMA authorizations expired at the end of FY1999.
The 106th Congress took steps to address CZARA and coastal nonpoint pollution
issues in connection with CZMA reauthorization, but did not complete action on a bill.
3 These actions covered the 29 states and territories with federally-approved CZM programs as of
1993. Four states with newer CZM programs (Georgia, Ohio, Texas, and Minnesota) have
submitted their 6217 programs for approval, under the 30-month deadline specified in CZARA.

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During hearings held by subcommittees of the House Resources Committee and the Senate
Commerce, Science and Transportation Committee, witnesses expressed substantial
support for the coastal nonpoint pollution program.4 States like it because state plans are
self-designed and self-implemented, but a key concern has been secure funding and
improved coordination between the 6217 program and the CZM program. The Clinton
Administration supported amending the CZMA to include development and
implementation of coastal nonpoint pollution plans as activities eligible for CZMA grant
funding. The Administration said that coastal states need increased financial support to
implement their plans and proposed that funds for these activities be authorized in addition
to base funding for the existing CZMA grants.
Environmental groups also support incorporating the coastal nonpoint pollution
program into the CZMA and providing funding for its implementation. They strongly
support the enforceable nature of the Section 6217 program which requires backup
enforceable means to insure implementation where voluntary measures in state plans fail.
In contrast, they have criticized the CWA Section 319 nonpoint program, because it is
voluntary (states are not penalized for failure to implement nonpoint management
measures) and does not require similar enforceable elements.
In August 1999, the House Resources Committee Fisheries Conservation, Wildlife
and Oceans Subcommittee approved a bill to reauthorize the CZMA for five years (H.R.
2669). It included a provision to allow states with approved coastal nonpoint plans to use
up to $10 million per year in CZMA grants to implement projects for technical assistance,
public education, and implementation of management measures for nonpoint sources.
However, in October, before approving H.R. 2669 (H.Rept. 106-485), the full committee
deleted that provision because of concerns over possible jurisdictional conflicts with other
House committees. The full committee also approved a property rights amendment
opposed by the Clinton Administration and state and county organizations. The House did
not take up H.R. 2669 because of controversies over the property rights provision.
In September 2000, the Senate approved a 5-year CZMA reauthorization bill (S.
1534, S.Rept. 106-412). It included a new coastal community grant program to help
communities address impacts of development, sprawl, and nonpoint source pollution. Up
to $10 million per year of these grants would be directed to implementing nonpoint
pollution control projects. There was no further congressional action on this bill.
Supporters of CZMA legislation and of the 6217 nonpoint pollution program
anticipate that the 107th Congress will address these issues, but it is unclear whether that
will occur. The views of the Bush Administration are not yet known, and the legislative
priorities of the key congressional committees that have interest in these topics also are not
known.
4 Testimony from the Feb. 25, 1999, House subcommittee hearing is available at:
[http://www.house.gov/resources/106cong/fisheries/99feb25/990225witnesslist.htm]. Testimony
from the May 6, 1999, Senate subcommittee hearing is available at:
[http://www.senate.gov/~commerce/issues/ocfish.htm#Hearings]. Other CZMA reauthorization
issues were discussed at these hearings; for information, see CRS Report RS20498, Coastal Zone
Management Reauthorization: An Overview.

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