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Water: Coastal Zone Act Reauthorization Amendments

Chapter 1: Introduction - I. Background

I. BACKGROUND

This guidance specifying management measures for sources of nonpoint pollution in coastal waters is required under section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA). It provides guidance to States and Territories on the types of management measures that should be included in State and Territorial Coastal Nonpoint Pollution Control Programs. This chapter explains in detail the requirements of section 6217 and the approach used by the U.S. Environmental Protection Agency (EPA) to develop the management measures.


A. Nonpoint Source Pollution

1. What Is Nonpoint Source Pollution?

Nonpoint source pollution generally results from land runoff, precipitation, atmospheric deposition, drainage, seepage, or hydrologic modification. Technically, the term "nonpoint source" is defined to mean any source of water pollution that does not meet the legal definition of "point source" in section 502(14) of the Clean Water Act. That definition states:

The term "point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural storm water discharges and return flows from irrigated agriculture.

Although diffuse runoff is generally treated as nonpoint source pollution, runoff that enters and is discharged from conveyances such as those described above is treated as a point source discharge and hence is subject to the permit requirements of the Clean Water Act. In contrast, nonpoint sources are not subject to Federal permit requirements. The distinction between nonpoint sources and diffuse point sources is sometimes unclear. Therefore, at several points in this document, EPA provides detailed discussions to help the reader discern whether a particular source is a point source or a nonpoint source. Refer to Chapter 2, Section II.B.1 (discussing applicability of management measures to confined animal facility management); Chapter 4, Section I.E (discussing overlaps between this program and the storm water permit program for point sources); and Chapter 5, Section I.G (discussing overlaps between this program and several other programs, including the point source permit program).


Nonpoint pollution is the pollution of our nation's waters caused by rainfall or snowmelt moving over and through the ground. As the runoff moves, it picks up and carries away natural pollutants and pollutants resulting from human activity, finally depositing them into lakes, rivers, wetlands, coastal waters, and ground waters. In addition, hydrologic modification is a form of nonpoint source pollution that often adversely affects the biological and physical integrity of surface waters. A more detailed discussion of the range of nonpoint sources and their effects on water quality and riparian habitats is provided in subsequent chapters of this guidance.



2. National Efforts to Control Nonpoint Pollution

a. Nonpoint Source Program

During the first 15 years of the national program to abate and control water pollution, EPA and the States have focused most of their water pollution control activities on traditional "point sources," such as discharges through pipes from sewage treatment plants and industrial facilities. These point sources have been regulated by EPA and the States through the National Pollutant Discharge Elimination System (NPDES) permit program established by section 402 of the Clean Water Act. Discharges of dredged and fill materials into wetlands have also been regulated by the U.S. Army Corps of Engineers and EPA under section 404 of the Clean Water Act.


As a result of the above activities, the Nation has greatly reduced pollutant loads from point source discharges and has made considerable progress in restoring and maintaining water quality. However, the gains in controlling point sources have not solved all of the Nation's water quality problems. Recent studies and surveys by EPA and by State water quality agencies indicate that the majority of the remaining water quality impairments in our nation's rivers, streams, lakes, estuaries, coastal waters, and wetlands result from nonpoint source pollution and other nontraditional sources, such as urban storm water discharges and combined sewer overflows.


In 1987, in view of the progress achieved in controlling point sources and the growing national awareness of the increasingly dominant influence of nonpoint source pollution on water quality, Congress amended the Clean Water Act to focus greater national efforts on nonpoint sources. In the Water Quality Act of 1987, Congress amended section 101, "Declaration of Goals and Policy," to add the following fundamental principle:


It is the national policy that programs for the control of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution.


More importantly, Congress enacted section 319 of the Clean Water Act, which established a national program to control nonpoint sources of water pollution. Under section 319, States address nonpoint pollution by assessing nonpoint source pollution problems and causes within the State, adopting management programs to control the nonpoint source pollution, and implementing the management programs. Section 319 authorizes EPA to issue grants to States to assist them in implementing those management programs or portions of management programs which have been approved by EPA.



b. National Estuary Program

EPA also administers the National Estuary Program under section 320 of the Clean Water Act. This program focuses on point and nonpoint pollution in geographically targeted, high-priority estuarine waters. In this program, EPA assists State, regional, and local governments in developing comprehensive conservation and management plans that recommend priority corrective actions to restore estuarine water quality, fish populations, and other designated uses of the waters.



c. Pesticides Program

Another program administered by EPA that controls some forms of nonpoint pollution is the pesticides program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Among other provisions, this program authorizes EPA to control pesticides that may threaten ground water and surface water. FIFRA provides for the registration of pesticides and enforceable label requirements, which may include maximum rates of application, restrictions on use practices, and classification of pesticides as "restricted use" pesticides (which restricts use to certified applicators trained to handle toxic chemicals). The requirements of FIFRA, and their relationship to this guidance, are discussed more fully in Chapter 2, Section II.D, of this guidance.




B. Coastal Zone Management

The Coastal Zone Management Act of 1972 (CZMA) established a program for States and Territories to voluntarily develop comprehensive programs to protect and manage coastal resources (including the Great Lakes). To receive Federal approval and implementation funding, States and Territories had to demonstrate that they had programs, including enforceable policies, that were sufficiently comprehensive and specific both to regulate land uses, water uses, and coastal development and to resolve conflicts between competing uses. In addition, they had to have the authorities to implement the enforceable policies.


There are 29 federally approved State and Territorial programs. Despite institutional differences, each program must protect and manage important coastal resources, including wetlands, estuaries, beaches, dunes, barrier islands, coral reefs, and fish and wildlife and their habitats. Resource management and protection are accomplished in a number of ways through State laws, regulations, permits, and local plans and zoning ordinances.


While water quality protection is integral to the management of many of these coastal resources, it was not specifically cited as a purpose or policy of the original statute. The Coastal Zone Act Reauthorization Amendments of 1990, described below, specifically charged State coastal programs, as well as State nonpoint source programs, with addressing nonpoint source pollution affecting coastal water quality.




C. Coastal Zone Act Reauthorization Amendments of 1990

1. Background and Purpose of the Amendments

On November 5, 1990, Congress enacted the Coastal Zone Act Reauthorization Amendments of 1990. These Amendments were intended to address several concerns, a major one of which is the impact of nonpoint source pollution on coastal waters. In section 6202(a) of the Amendments, Congress made a set of findings, which are quoted below in pertinent part.



"1. Our oceans, coastal waters, and estuaries constitute a unique resource. The condition of the water quality in and around the coastal areas is significantly declining. Growing human pressures on the coastal ecosystem will continue to degrade this resource until adequate actions and policies are implemented.


"2. Almost one-half of our total population now lives in coastal areas. By 2010, the coastal population will have grown from 80,000,000 in 1960 to 127,000,000 people, an increase of approximately 60 percent, and population density in coastal counties will be among the highest in the Nation.


"3. Marine resources contribute to the Nation's economic stability. Commercial and recreational fishery activities support an industry with an estimated value of $12,000,000,000 a year.


"4. Wetlands play a vital role in sustaining the coastal economy and environment. Wetlands support and nourish fishery and marine resources. They also protect the Nation's shores from storm and wave damage. Coastal wetlands contribute an estimated $5,000,000,000 to the production of fish and shellfish in the United States coastal waters. Yet, 50 percent of the Nation's coastal wetlands have been destroyed, and more are likely to decline in the near future.


"5. Nonpoint source pollution is increasingly recognized as a significant factor in coastal water degradation. In urban areas, storm water and combined sewer overflow are linked to major coastal problems, and in rural areas, runoff from agricultural activities may add to coastal pollution.


"6. Coastal planning and development control measures are essential to protect coastal water quality, which is subject to continued ongoing stresses. Currently, not enough is being done to manage and protect coastal resources.


. . . .


"8. There is a clear link between coastal water quality and land use activities along the shore. State management programs under the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.) are among the best tools for protecting coastal resources and must play a larger role, particularly in improving coastal zone water quality."


Based upon these findings, Congress declared that:


"It is the purpose of Congress in this subtitle [the Coastal Zone Act Reauthorization Amendments of 1990] to enhance the effectiveness of the Coastal Zone Management Act of 1972 by increasing our understanding of the coastal environment and expanding the ability of State coastal zone management programs to address coastal environmental problems." (Section 6202(b))

2. State Coastal Nonpoint Pollution Control Programs

To address more specifically the impacts of nonpoint source pollution on coastal water quality, Congress enacted section 6217, "Protecting Coastal Waters," which was codified as 16 U.S.C. -1455b. This section provides that each State with an approved coastal zone management program must develop and submit to EPA and the National Oceanic and Atmospheric Administration (NOAA) for approval a Coastal Nonpoint Pollution Control Program. The purpose of the program "shall be to develop and implement management measures for nonpoint source pollution to restore and protect coastal waters, working in close conjunction with other State and local authorities."


Coastal Nonpoint Pollution Control Programs are not intended to supplant existing coastal zone management programs and nonpoint source management programs. Rather, they are to serve as an update and expansion of existing nonpoint source management programs and are to be coordinated closely with the existing coastal zone management programs. The legislative history indicates that the central purpose of section 6217 is 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 that degrade coastal waters and coastal habitats. The legislative history further indicates that State coastal zone and water quality agencies are to have coequal roles, analogous to the sharing of responsibility between NOAA and EPA at the Federal level.


Section 6217(b) states that each State program must "provide for the implementation, at a minimum, of management measures in conformity with the guidance published under subsection (g) to protect coastal waters generally," and also to:


Identify land uses which, individually or cumulatively, may cause or contribute significantly to a degradation of (a) coastal waters where there is a failure to attain or maintain applicable water quality standards or protect designated uses, or (b) coastal waters that are threatened by reasonably foreseeable increases in pollution loadings from new or expanding sources;
  1. Identify critical coastal areas adjacent to coastal waters identified under the preceding paragraph;
  2. Implement additional management measures applicable to land uses and areas identified under paragraphs (1) and (2) above that are necessary to achieve and maintain applicable water quality standards and protect designated uses;
  3. Provide technical assistance to local governments and the public to implement the additional management measures;
  4. Provide opportunities for public participation in all aspects of the program;
  5. Establish mechanisms to improve coordination among State and local agencies and officials responsible for land use programs and permitting, water quality permitting and enforcement, habitat protection, and public health and safety; and
  6. Propose to modify State coastal zone boundaries as necessary to implement NOAA's recommendations under section 6217(e), which are based on NOAA's findings that inland boundaries must be modified to more effectively manage land and water uses to protect coastal waters.

Congress required that, within 30 months of EPA's publication of final guidance, States must develop and obtain EPA and NOAA approval of their Coastal Nonpoint Pollution Control Programs. Failure to submit an approvable program (i.e., one that meets the requirements of section 6217(b)) will result in a reduction of Federal grant dollars under the nonpoint source and coastal zone management programs. The reductions will begin in Fiscal Year 1996 (FY 1996) as a 10 percent cut, increasing to 15 percent in FY 1997, 20 percent in FY 1998, and 30 percent in FY 1999 and thereafter.



3. Management Measures Guidance

Section 6217(g) of the Coastal Zone Act Reauthorization Amendments of 1990 requires EPA to publish (and periodically revise thereafter), in consultation with NOAA, the U.S. Fish and Wildlife Service, and other Federal agencies, "guidance for specifying management measures for sources of nonpoint pollution in coastal waters." "Management measures" are defined in section 6217(g)(5) 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 nonpoint pollution control practices, technologies, processes, siting criteria, operating methods, or other alternatives.

The management measures guidance is to include at a minimum six elements set forth in section 6217(g)(2):



"(A) a description of a range of methods, measures, or practices, including structural and nonstructural controls and operation and maintenance procedures, that constitute each measure;


"(B) a description of the categories and subcategories of activities and locations for which each measure may be suitable;


"(C) an identification of the individual pollutants or categories or classes of pollutants that may be controlled by the measures and the water quality effects of the measures;


"(D) quantitative estimates of the pollution reduction effects and costs of the measures;


"(E) a description of the factors which should be taken into account in adapting the measures to specific sites or locations; and


"(F) any necessary monitoring techniques to accompany the measures to assess over time the success of the measures in reducing pollution loads and improving water quality."

State Coastal Nonpoint Pollution Control programs must provide for the implementation of management measures that are in conformity with this management measures guidance.


The legislative history (floor statement of Rep. Gerry Studds, House sponsor of section 6217, as part of debate on Omnibus Reconciliation Bill, October 26, 1990) confirms that, as indicated by the statutory language, the "management measures" approach is technology-based rather than water-quality-based. That is, the management measures are to be based on technical and economic achievability, rather than on cause-and-effect linkages between particular land use activities and particular water quality problems. As the legislative history makes clear, implementation of these technology-based management measures will allow States to concentrate their resources initially on developing and implementing measures that experts agree will reduce pollution significantly. As explained more fully in a separate document, Coastal Nonpoint Pollution Control Program: Program Development and Approval Guidance , States will follow up the implementation of management measures with additional management measures to address any remaining coastal water quality problems.


The legislative history indicates that the range of management measures anticipated by Congress is broad and may include, among other measures, use of buffer strips, setbacks, techniques for identifying and protecting critical coastal areas and habitats, soil erosion and sedimentation controls, and siting and design criteria for water-related uses such as marinas. However, Congress has cautioned that the management measures should not unduly intrude upon the more intimate land use authorities properly exercised at the local level.


The legislative history also indicates that the management measures guidance, while patterned to a degree after the point source effluent guidelines' technology-based approach (see 40 CFR Parts 400-471 for examples of this approach), is not expected to have the same level of specificity as effluent guidelines. Congress has recognized that the effectiveness of a particular management measure at a particular site is subject to a variety of factors too complex to address in a single set of simple, mechanical prescriptions developed at the Federal level. Thus, the legislative history indicates that EPA's guidance should offer State officials a number of options and permit them considerable flexibility in selecting management measures that are appropriate for their State. Thus, the management measures in this document are written to allow such flexibility in implementation.


An additional major distinction drawn in the legislative history between effluent guidelines for point sources and this management measures guidance is that the management measures will not be directly or automatically applied to categories of nonpoint sources as a matter of Federal law. Instead, it is the State coastal nonpoint program, backed by the authority of State law, that must provide for the implementation of management measures in conformity with the management measures guidance. Under section 306(d)(16) of the CZMA, coastal zone programs must provide for enforceable policies and mechanisms to implement the applicable requirements of the State Coastal Nonpoint Pollution Control Program, including the management measures developed by the State "in conformity" with this guidance.




D. Program Implementation Guidance

In addition to this "management measures" guidance, EPA and NOAA have also jointly published Coastal Nonpoint Pollution Control Program: Program Development and Approval Guidance . That document provides guidance to States in interpreting and applying the various provisions of section 6217 of CZARA. It addresses issues such as the following: the basis and process for EPA/NOAA approval of State Coastal Nonpoint Pollution Control Programs; how EPA and NOAA expect State programs to implement management measures "in conformity" with this management measures guidance; how States may target sources in implementing their programs; changes in State coastal boundaries to implement their programs; and other aspects of State implementation of their programs.




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