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Land-based marine pollution and coastal zone management
Marine Policy 1994 18 (2) 165-174
Land-based marine pollution and coastal zone management Role of state and local government in the USA
B C Wood-Thomas
Land-based sources (LBS) are estimated to contribute 80-90% of the total pollutants entering the world’s oceans. These sources include a wide spectrum of activities, and, because of this diversity, require the creation of generic distinctions. The most basic distinction, point and non-point, is made on the specificity of the source and relates to the existence, or lack thereof, of a discrete outfall. The USA has relatively few (approximately 350) point sources that discharge directly into the ocean. However, discharges to coastal waters (including estuarine waters) number around 20 0OO.l
Point sources Point sources are distinct, identifiable outfalls whose origin can be precisely located (eg discharges through pipes). Industrial discharges are usually easy to locate and may be analysed to identify selected metals, toxics, and other hazardous pollutants. Municipal wastewater treatment plants account for some 25% of total point sources discharging to coastal waters, but account for 90% of the total effluent flow. Because vast areas of the world fail to treat sewage adequately and because of increasing population along the world’s coastlines, municipal waste provides one of the most widespread pollutants in the marine environment.
‘Upriver discharges and other contributing sources outside coastal areas are not accounted for in these figures. Bryan Wood-Thomas is a Marine Policy Advisor with the Environmental Protection Agency, 401 M Street SW, Washington DC 20460, USA.
0308-597x/94/020165-10
0
1994 Butterworth-Heinemann
Ltd
Non-point sources Non-point sources of pollution are dispersed sources that enter the marine environment via indirect pathways, such as run-off or through the atmosphere. These pollutant sources, although not directly discharging to marine waters, are a significant source of pollutant loadings. Common examples include: pesticide and fertilizer run-off; salt; petroleum; and other contaminants from roadways, parking lots, and other hard surfaces; as well as volatile organic emissions that contribute to ozone and other air pollution problems. Non-point sources account for more than half the nation’s water pollution and can be subdivided into four main categories: urban, agricultural, industrial and construction/ development related. Atmospheric deposition can also be considered a non-point source of pollution with respect to the marine environment and is discussed separately. Urban run-off is typically collected through stormwater systems across a municipal area. This mixture will include oil, grease, pesticides, fertilizer, salt, sediment, and other materials that are periodically swept away in rain storms. Storm events also contribute to marine debris problems (mainly plastics). While plastic debris may have little effect on water quality, it adversely effects marine life due to ingestion and entanglement and is a significant source of aesthetic pollution along beaches. Agricultural sources typically include farming and silviculture operations that frequently use significant quantities of commercial fertilizer, herbicides, and pesticides that are later washed away by rainfall and through irrigation systems. Nutrients are of signifi-
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cant concern in the run-off from intensive farming practices. Intensive livestock practices lead to high ammonia emissions, soil acidification and consequently enhanced drainage. Overgrazing exacerbates erosion and the ultimate disposal of animal wastes increases the overall organic load to coastal waters. In addition, erosion of farmland and forests contributes immense quantities of sediment that fills reservoirs, clogs waterways, buries benthic communities and otherwise degrades aquatic ecosystems that are unable to handle rates of erosion that exceed natural levels. Irrigation associated with agriculture in arid areas has also taken its toil on the marine environment. Irrigation water is generally consumed before reaching the coast, thus decreasing the amount of water available for adequate flushing. Any drainage that does occur as a result of irrigation often contains high levels of fertilizers and pesticides and may be highly saline. Agricultural and industrial contaminants may also be transported to rivers and coastal waters via ground water. Industrial non-point sources of water pollution include the run-off of heavy metals and other compounds from industrial stockpiles, mining operations, and contaminated stormwater. Less important, though sometimes locally significant, are contaminated aquifers that interface with river inputs and coastal waters. Construction/development related activities also contribute to the non-point source problem. Deforestation, displacement of earth, and the resulting erosion during and after construction can produce significant volumes of sediment that frequently end up in coastal waters. Coastal development projects, dredging operations, and the reclamation of shallow coastal waters all contribute in varying degrees to the loss of habitat in the coastal zone. This problem has been especially critical in tropical settings where mangroves and coral reefs have been destroyed through either excessive erosion or direct development.
Coastal diversity The US coastline involves a broad array of coastal types ranging from broad barrier island systems on the Mid-Atlantic coast to rocky headlands along the North-west Atlantic and North-eastern Pacific coasts. Furthermore, the US coastal zone includes cold water temperate and arctic conditions as well as warm water, tropical ecosystems in Florida, Puerto Rico, and the Pacific. In light of this diversity, US policies need to be adaptable to a wide range of
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conditions, not only from an ecological standpoint, but also from a development perspective. Land use and development patterns vary considerably across this spectrum of geographic conditions and state and local government are relied upon to develop and implement programmes that are appropriate to local conditions. This is especially true in the area of land use regulation, as is discussed below.
Relationship between federal, state, and local environmental law in the USA National legislation governing pollution control in the USA is, as a general rule, highly specific in the goals and standards to be attained. The US Environmental Protection Agency is responsible for developing specific regulations and standards applicable under each of the major environmental statutes, yet the implementation and enforcement of most standards is often undertaken by state governments. A good example of this relationship is the Resource, Conservation, and Recovery Act (RCRA) that mandates federal standards for the management and disposal of hazardous wastes. The law and implementing regulations stipulate a broad array of management requirements that must be applied to certain substances and waste mixtures. These requirements include specific storage, transportation, disposal, and waste minimization requirements. Individual states must in turn develop their own laws that implement these requirements. States may elect to pass more stringent standards and requirements (except for transportation standards that are subject to interstate consistency requirements) and must demonstrate their capacity to enforce the applicable standards. Although state obligations vary under different environmental statutes, this model of federal and state authority is typical of US regulation of water, air, and waste disposal activities. Land use planning, development, and construction regulation is managed by local government and to a more limited extent, by states. Municipal and county governments typically establish land-use planning, zoning, and other development controls that frequently require permit applications and, in many cases, public hearings. Site construction regulations controlling sediment run-off associated with excavation and other grading activities are also regulated and enforced by local governments. Since federal and state governments do not, as a general rule, issue standards or regulations relating to land use, considerable variation exists in the regulation and oversight of various development activities.
Land-based
In the coastal zone, as in other areas of the country, local and state governments formulate standards and balance conflicting interests between development, conservation, and other users. The federal government, however, has recognized the unique importance of the coastal zone and the ‘public goods’ value of coastal resources to the population as a whole and has provided a series of incentives for states and localities to develop integrated coastal zone management programmes that reflect various goals and guidelines which are stipulated under the Coastal Zone Management Act (CZMA). The conservation of specially protected areas (both onshore and offshore) is accommodated through federal designation procedures that nominate selected areas in consultation with state and local government.
US media and cross-media approaches Although various forms of water pollution were regulated under different laws prior to 1972, the basic framework for controlling water pollution was established by enactment of the Federal Water Pollution Control Act in 1972. This was later modified in 1977 and renamed the Clean Water Act (CWA). The Clean Water Act establishes, among a permit programme that is imother things, plemented either by the federal government or by states with authorized programmes, a system of minimum national effluent limitations, and guidelines and standards for selected industries. The act also requires states to develop water quality standards and provides for special problems such as toxic chemicals, the control of non-point sources, and a state revolving loan programme. Prior to 1970, ambient water quality standards were generally set by the states for various water bodies within their borders. Although the approach offered flexibility in state regulatory practices, the system worked poorly in most states. Major problems included: inability to determine when and if a specific discharge violated ambient water quality standards; inability to regulate interstate waters; and inadequate enforcement and considerable variation in standards from state to state including no standards in many states. Although a few states made the water quality approach work, it was clear by 1970 that an effective nationwide approach would require federal mini-
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mum ‘end-of-pipe’ effluent criteria enforceable directly against the discharger.’ Even so, US law between 1970 and 1977 relied heavily on ambient water quality standards. This continued to be ineffective and amendments to the CWA in 1977 shifted emphasis to technology-based controls backed up by water quality standards. The Coastal Zone Management Act (CZMA) and the Clean Air Act are also significant statutes stipulating controls on land-based sources. These laws as well as relevant sections of the Clean Water Act are described in more detail below. Point source regulation under the CWA The primary mechanism in the USA for controlling point source discharges is a nationwide permit programme known as the National Pollutant Discharge Elimination System (NPDES). It is worth noting that the CWA defines a point source as ‘any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged’. Under the NPDES programme and many other US environmental programmes, individual states may take over the permitting programme once adequate legislation is in place and the EPA has approved the programme - 39 of the 50 states currently administer and enforce their own permit programmes. Technology-based effluent controls. Various standards of technology-based controls are required depending upon the pollutants involved and the age of the facility. Technology-based standards under US law require best available technology in specified circumstances as well as other variations of technology application. When the CWA was first implemented, many existing discharges were required to achieve the best practical technology (BPT). In short, this standard was the equivalent of the ‘average of the best existing performance by well-operated plants within an industrial category or subcategory’.” This determination was to take into account such factors as the age of the plant and process employed, requiring what amounted to a cost-benefit analysis that took into account a broad range of engineering factors common to a particular industry. It should be emphasized that BPT was a transitional mechanism for existing industries with achievement of higher standards required in subsequent years. Best conventional pollutant technology (BCT) 2Environmenfa/ Law Handbook, p 266.
Government
institutes,
Rock-
ville, MD, 1985, 3ibid, p 285.
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that federal construction grants and state revolving funds have provided millions in capital investment to facilitate construction of adequate public waste systems in local communities across the USA. Federal and state finance programmes targeted for the construction of municipal and private waste treatment systems are discussed below.
50 affected % miles2 by each
pollutant
40
30
20
10
-
0
Figure 1. Top ten pollutants
in US estuaries.
Source: The Quality of Our Nation’s
Water,EPA, Washington,
1990.
was required in 1977 for fecal coliform, suspended solids, pH, biological oxygen demand (BOD), oil, grease, and other pollutants determined by the EPA as ‘conventional’ pollutants. BCT limitations are set by the federal government based on a consideration of the reasonableness of the relationship between the cost of attaining a reduction in effluent and the resulting benefits. For practical purposes the process of establishing best practical and best conventional technologies can be considered as essentially the same and often resulted in comparable or equal standards. In contrast, best available technology (BAT) is defined as the ‘very best control and treatment measures that have been or are capable of being achieved’ and are to include in-plant process changes. Specific standards are also set for municipal or publicly-owned treatment works. Pre-treatment limits are established for industries discharging into public sewer systems to ensure proper operation of the sewage treatment facility whose operation and enforcement is the responsibility of local governments. In this area, primary responsibility rests at the local level with the state and federal government serving as a back-up intermediary should the local and/or state government fail adequately to maintain and enforce federal standards. It should be noted
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Water quality criteria. As has been noted earlier, federal or state permits must impose technologybased effluent limitations. These limitations function as nationwide minimum (or base level) discharge standards. The CWA also provides for the imposition of more stringent requirements where dictated by the need to protect or maintain water quality in specific bodies of water.4 The CWA sets fishable and swimmable waters as the goal for all US waters. Local treatment plants are required to take additional measures to meet state or federal water quality standards where such standards exist. Water quality-related effluent limitations have the potential to require levels of treatment considerably higher than those required under technology-based limits in areas of heavy discharge, in waters where very stringent quality standards have been established, and in waters with limited assimilative capacity, In practice, the enforcement of water quality standards has been difficult due to complications associated with translating ambient water-quality standards into discharge limitations for specific sources. Non-point source programmes Non-point sources contribute more than half of the suspended solids, phosphorus, chromium, copper, lead, iron, zinc, and fecal coliform bacteria that pollute US waters.’ The most common non-point pollutant is soil eroded from farms, construction sites, and stream banks. The soil destroys aquatic habitats by increasing turbidity, cutting off sunlight to aquatic plants and other organisms, and smothering fish spawning areas. Run-off poisoned with fertilizer, pesticides, toxic metals, and oils presents additional problems. An excess of nutrients in the water column accelerates vegetation growth which can lead to oxygen depletion. Overall, as coastal population and development increases, the increasing number of sources leads to a consequent increase in the loading and stress on adjacent water bodies. US regulatory programmes have focused on controlling discharges from major industrial and municipal point sources. As these efforts have, in some Vbid, p 300. ‘Wastes in Marine Environments, Office of Technology ment, US Congress, 1987, Chapter 3.
Assess-
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cases, reached decreasing levels of return per unit of effluent reduction, more and more attention has been directed to the control and management of diffuse, non-point sources of pollution. Urban and agricultural run-off are the two most general categories responsible for water quality problems in numerous watersheds. Increasing attention on the control of these sources has also shifted the focus to regional, state, and local programmes that are best equipped to deal with the specific problems and land-use practices that are unique to a given area. Regional, state, and local programmes designed to better manage these sources of pollution are discussed below. Regional, state, and local programmes to address non-point pollution are stimulated or mandated by requirements and/or incentives under the CWA and the Coastal Zone Management Act (CZMA). Other US statutes and programmes (such as the Department of Agriculture’s Soil Conservation Program) also provide requirements and/or incentives, but discussion in this paper is limited to the CWA and CZMA since they serve as the core of US programmes in this area. Recent regulations have established treatment requirements for run-off in cities with populations over 100 000 and require permits for discharges from municipal collection systems. Run-off from industrial sites is also subject to specific permit requirements. Other permit and non-permit programmes aimed at both agricultural and urban run-off generally prescribe or encourage a series of ‘best management practices’. For example, farmers tilling land in riparian areas have been encouraged through federal, state, and local programmes to plow fields in a manner that minimizes erosion. Other programmes address pesticide application. Many local and regional programmes require minimum buffer zones and other mechanisms aimed at intercepting run-off. Amendments in 1990 to the CZMA require states and territories to develop a Coastal Nonpoint Pollution Control Program. These programmes are implemented through both the CWA and the CZMA and require that states identify land uses that individually or cumulatively contribute to the degradation of coastal waters. Requirements also include the identification of ‘critical coastal areas’ where new land uses or substantial expansion of existing land uses are subject to various management measures and public participation requirements. Atmospheric
deposition
Atmospheric deposition is the least discussed aspect of land-based marine pollution, even though global
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estimates attribute 3&40% of marine pollutants to contaminants transported through the atmosphere.6 Atmospheric deposition can be direct (ie direct deposition to coastal and marine waters) or indirect (ie deposition on land and streams that is later carried to coastal waters via run-off). The US Clean Air Act stipulates a vast array of air quality requirements affecting both stationary and mobile sources of air pollution. It should be noted, however, that air pollution sources in the USA have not yet been regulated with pollution of the marine environment as a consideration. Recent programmes controlling acid rain were based, in part, on estimated impacts to various freshwater lakes and forests in the North-eastern and Mid-Atlantic states, but impacts on coastal and marine waters have not been a subject of legislative action. Although impacts on the coastal and marine waters have not yet played a role in US air pollution policies, reductions in certain pollutants (most notably lead) have contributed to improved water and sediment quality. Like many other US environmental statutes, the Clean Air Act mandates standards and programmes for implementation by state governments. Various areas throughout the country are designated as attainment or non-attainment areas for selected air pollutants. As most of these non-attainment areas are large metropolitan areas subject to federal and state sanctions (eg lack of eligibility for federal transportation funds), local governments and metropolitan authorities are playing a central role in establishing innovative programmes to achieve compliance with air quality standards. Land use planning
and coastal zone management
Land use planning in the USA is almost exclusively performed by local authorities.’ Authorities responsible for zoning, building codes, and other development policies may be organized by township, county, or other divisions of local government. management of the coastal zone is an integrated effort of local, state, and federal government. Although all three levels of government play critical roles in the management of the coastal zone, state government is the central force responsible for organizing programmes to be implemented by local ‘The State of the Marine Environment, UnitedNations Group of Experts on the Scientific Aspects of Marine Pollution, UNEP Regional Seas Reports and Studies, No 115, 1990. 7The US federal government does not exercise land use authority except for federal lands. The size and extent of federal lands in Alaska and the western states, however, account for a very sizable area of land use jurisdiction. Individual states do exercise authority in this area, but generally delegate to local governments.
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governments. The federal government serves as the catalyst for state programmes by providing grants and other incentives for states to create programmes consistent with national goals. The federal government, however, does not exercise the powers common to federal agencies responsible for regulating various forms of environmental pollution. This is based, in part, on the philosophy that land use planning is best administered by local governments and that management of the coastal zone, especially development of coastal properties, is more appropriately managed in the context of land use and development planning. Land use planning. Land use planning exists at a variety of levels in the USA. The most common and widespread form of planning in the US is local zoning laws that map out various areas of the community suitable for industrial, commercial, and residential development as well as designating particular areas for parks, recreation, and wildlife conservation. Such laws are often organized into a community ‘master plan’ that contains more detailed requirements concerning development densities, setback requirements, building height limitations, and special requirements for proposed developments near floodplains, wetlands, and other critical areas. Modifications to local zoning laws and decisions concerning individual development proposals are usually managed by a local planning authority and zoning board. Members of the zoning and/or planning committee may be volunteers or, more commonly, are elected or appointed to serve for periods of two or more years. Decisions concerning various development proposals are almost always the subject of public hearings where concerned citizens and affected property owners may air their views. As a general rule, rural areas and small towns possess less restrictive ordinances and may possess no restrictions in land-use, while larger communities and more densely populated areas tend to regulate construction and development activities at considerably higher levels. The success and failure of local planning efforts is frequently dependent upon three important variables: (1) the adequacy of existing requirements and their innate ability to provide useful controls on development, (2) the political commitment and strength of the system to withstand excessive and inappropriate requests for variances, and (3) the ability of the plan to accommodate public interests. The second factor noted is perhaps the most important variable since well conceived land use models can be seriously undermined if the political organiza-
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tion of the zoning board or other decision making body is susceptible to routine variances to accommodate special development interests. Coastal zone management. A national effort to coordinate development planning along the US coastline began in 1972 with enactment of the Coastal Zone Management Act. The act outlines four basic policies: (1) to preserve, protect, develop, and where possible, restore or enhance the resources of the US coastal zone; (2) to encourage and assist the states to develop and implement coastal zone management programmes meeting specified national standards; (3) to protect significant natural resources, improve protection of life and property, and to improve predictability in government decision making; and (4) to encourage the participation and cooperation of state and local governments as well as interstate, regional, and federal agencies.s The US Coastal Zone Management Program provides funds, policy guidance, and technical assistance to coastal states and US island territories to help them establish and maintain CZM programmes that meet certain national objectives. To foster state participation, two kinds of incentives are provided: (1) federal matching grants which help states meet the cost of implementing their programmes; and (2) federal consistency authority, which requires that federal activities directly affecting the coastal zone must be conducted in a manner consistent to the maximum extent feasible with state CZM plans. State plans must be approved by the federal government as consistent with federal goals and are evaluated every two years. States are required to address nine national objectives:
protection of natural resources; management of coastal development to avoid hazardous areas; priority consideration to coastal dependent uses and energy facilities; public waterfront access; assistance in urban waterfront and harbour redevelopment; coordination and simplification of government procedures; consultation and coordination with federal agencies; public participation in decision making; and comprehensive planning, conservation, and management of living marine resources. 8Coastal Zone Management in the USA, US Department Commerce, 1990, p 1.
National Oceanic
and Atmospheric
of Administration,
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Also included is a system of national estuarine research reserves designed to help states acquire and manage estuarine areas as natural field laboratories. This is facilitated by financial assistance rewards that provide funds on a SO/50 matching basis. All 35 coastal states and US island territories participate in the programme. To date, 29 states and territories, covering 94% of the US coastline, have received federal approval and are implementing programmes at the state and local level.’ Management efforts have led to a reduction in the risk to life and property from storms and have focused state efforts on deterring development in highly vulnerable areas of the US shoreline, including the adoption of setback regulations and other mechanisms described below. Additionally, the programme encourages the acquisition of wetlands and other critical habitats, the control of pollution sources and development planning that recognizes long-term coastal dynamics as well as public access and education.
State and regional efforts As mentioned above, states must develop selected environmental standards and may choose to implement and enforce environmental pollution control standards. States may, and many do, elect to adopt more stringent standards in various areas. In those states that frequently develop more stringent standards, state programmes are the driving force in environmental policy, while in other states federal standards serve as the driving force in establishing various pollution control standards. On the other hand, states are the primary players in establishing coastal zone management programmes and policies. For this reason, the discussion of state programmes will focus on coastal zone management and examples highlighting specific programmes. Recent amendments to the Coastal Zone Management Act require states and territories with federally approved programmes to develop specific programmes for controlling non-point pollution of coastal waters. A variety of approaches are used by many states and territories to address run-off problems of particular signi~cance to individual states. Rhode Island requires development applicants to submit professionally designed sedimentation and erosion control plans and stormwater management plans. All new developments must keep run-off at predevelopment levels and discharge of run-off ‘Ibid, p 2.
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directly into the estuary is prohibited. Run-off from parking lots and roads adjacent to the coastline must be treated to remove oil and sediments. Driveways and parking areas within 200 ft of water must be constructed with porous materials. The state of Alaska has adopted buffer zones along rivers with critical salmon populations. For example, nearly SO% of the entire US sockeye salmon harvest comes from Bristol Bay, A1aska.t’ A local programme in Bristol Bay establishes a 100 ft buffer for non-water-dependent development to protect salmon migration, spawning, and rearing and extends to tributaries that affect those waters. In Maryland, a state ‘Greenshores Program’ promoted the planting of trees, shrubs, and native ground covers as part of a buffer along the shoreline of the Chesapeake Bay. Maine requires a 75 ft setback for construction along marine and fresh waters to maintain vegetated buffers. Maine requires coastal communities to zone all lands within 250 ft of a waterbody and has established standards to control sediment and phosphorous run-off. The New Jersey Coastal Program provides a good example of how a state programme has served as a catalyst to regulate stormwater discharges from new developments. Different engineering solutions and other methods are used to compensate for the added run-off and pollution caused by development. When land that was formally undeveloped becomes covered with parking lots, buildings, and other impervious surfaces, rain water can no longer be absorbed into the ground. This excess water often causes erosion and downstream flooding Stormwater ordinances can use a number of innovative methods and may include such measures as retention basins to control peak flows, recharge trenches, porous paving and piping, contour terraces and swales. The key standard of the New Jersey programme and many other stormwater programmes is a requirement that peak run-off following development does not exceed pre-construction conditions. Vegetated buffers are also required in many programmes and engineers are now designing retention basins to serve dual purposes. They detain stormwater at periods of peak flow, but can also be used to capture the first flush of stormwater that contains the bulk of pollutants (ie sediment and hydrocarbons). These basins can capture 40-90% of pollutants while adding little cost to the construction of a retention basin already needed for flood control purposes. I’ ‘°Coasfai ~a~agemenf So/ufions to Nonpoinf Source Wafer P~l/ufi~n, US NationalOceanic and AtmosphericAdministration, Technical Assistance Bulletin No 102, April 1990, p 7.
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Regional programmes Numerous estuaries and other coastal waterbodies in the USA encompass watersheds that include several states and numerous localities. Attention over the last 20 years to restoring and improving the health of these waterbodies has led to a recognition that planning efforts need to be coordinated across the entire watershed if one is to make significant, longterm improvements to the health of the waterbody. This evolution in thinking is frequently described as the ‘watershed approach’. Depending upon the scale of the watershed, the ‘watershed approach’ usually takes on a regional scale that may involve numerous counties and cities, and, frequently, several states. Regional bodies have been set up around various coastal waterbodies. Some of these bodies have been formed by federal programmes and others by state and local governments. The National Estuary Program, or NEP, was established in 1987 and sets up management committees for selected estuaries deemed to be of national significance. Conferences are convened by the US Environmental Protection Agency for a period of five years to provide a framework for local officials, technical experts, citizens, and interest groups to work together in identifying major environmental problems in the estuary and how to address those problems. The National Estuary Program currently includes 21 programmes ranging from Puget Sound in the State of Washington to Casco Bay, Maine and San Juan Bay, Puerto Rico.
Local regulation and planning Land use planning in the USA is primarily a function of local government. Federal government involvement is limited to siting selected federal facilities, construction of interstate highways, the management of federal lands, and other specialized circumstances. States exercise certain powers over land use, especially those adjacent to coastal waters, but will generally require that local governments form decision-making bodies in order to address those aspects of the problem which are identified at the state level. Development and construction restrictions. Local governments in many areas of the USA require construction permits for new construction projects and renovations. These requirements frequently “Coastal Pollution, Technical
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Management Solutions to Nonpoint Source Water National Oceanic and Atmospheric Administration, Assistance Bulletin No 102, 1990, p 43.
apply to industrial, commercial, and residential properties. For example, a homeowner renovating a house or expanding a structure will need to submit plans verifying compliance with various building codes, construction standards, and zoning requirements. Historically, building permits in the USA have focused on meeting minimum standards for mechanical systems, structural integrity, plumbing, electrical, and other architectural details. Over time similar permit systems have been created in many communities to address development issues impacting adjacent land owners and the community at large, as well as environmental pollution issues that may be a distinct function of development and construction activities. Land use zoning is the cornerstone of US land use planning and may be described as a communitybased process of deciding what areas of a community are suitable for certain forms of development. This is most commonly accomplished by developing a community master plan that designates certain areas suitable for single family housing, multi-family housing, light commercial uses, heavy industry, greenspace, and other uses. Further sophistication of this process has produced requirements for general development permits that require applicants to address a host of specific issues including forms of pollution otherwise unregulated by federal and state law. Stormwater control is one of the more significant subcategories of non-point pollution where numerous localities are developing regulations. Highdensity communities tend to rely upon structural controls and techniques such as requiring the collection and treatment of run-off prior to release into ground or surface waters. Less developed communities tend to rely on non-structural controls, including the adoption of zoning restrictions that limit the type and density of land use in coastal areas.‘* Selected examples. In Juneau, Alaska, a local coastal protection plan prohibits hazardous landfill materials within 100 feet of the floodplain to prevent leaching of pollutants into adjacent waters. In addition, new development proposals involving the storage of hazardous materials are not allowed within the loo-year floodplain unless there is no feasible alternative and unless safety measures are provided to prevent accidental discharges. Two local governments in Rhode Island have undertaken programmes to encourage proper maintenance and operation of household septic systems adjacent to ecologically sensitive waters. These “ibid,
p 45.
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programmes involved mailing information to homeowners on the effects of overloaded septic systems and offered a local tax rebate as an incentive for annual pump-outs. Local governments in the State of Washington have used the State Revolving Fund Program to offer low interest loans and grants to low-income households in need of septic system improvements. Numerous local governments in Virginia and other areas of the country require builders to erect fencing around the perimeter of construction sites to prevent erosion and excessive run-off. Local communities along the Long Island Sound also require that peak rates of stormwater run-off do not exceed pre-development levels. This policy of ‘zero additional run-off’ is quickly becoming a standard model for local site development regulations. Numerous county governments surrounding the Chesapeake Bay have adopted ‘critical area’ regulations that severely limit development along coastal areas and tributaries of the Bay. Regulations specify acceptable density levels, set-back requirements, prohibitions against development in non-tidal wetlands, and may require above ground septic systems in areas with limited absorption capacity. Public involvement, I have attempted so far to describe the general relationship of federal, state and local requirements in the US while also noting examples of specific programmes. The process by which these requirements are established, especially those developed by local authorities, is subject to considerable scrutiny. The development of local plans and decisions on individual development applications almost always require public hearings where interested citizens, business interests, and environmental groups may argue for the approval or disapproval of particular requirements and/or applications. Because of this process, community requirements must attempt to balance the various interests put forward by selected members of the community. Recognizing that some communities place higher values on certain activities, local requirements vary considerably. Almost all these systems place considerable importance on the ability of citizens and interest groups to appeal decisions by the responsible authorities. Such appeals may be administrative in nature, or may be, and often are pursued through formal legal action.
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pollution and related development activities in coastal areas. Of necessity, this article has made frequent reference to federal programmes and laws that provide the framework for controlling these sources of pollution. When considering the multitude of statutes, programmes, and other requirements as a whole, it can be difficult to project meaningful comparison with systems utilized by other countries and localities. Indeed, it is difficult to acquire a detailed understanding of national, state, and local programmes in one’s own country; let alone objectively assess the relative successes or failures of other national, state, and local governments. Therefore, I restrict my conclusions to US experience over the last four to five decades and some general lessons that are certainly open to debate. As noted above, pollution sources before 1972, including land-based sources of marine pollution, were generally the subject of state law as well as general nuisance and tort law. This situation produced inadequate results (indeed some states enacted few, if any restraints on polluting activities) and was generally considered unacceptable by the late 1960s. As a result, various federal environmental laws have been enacted since the early 1970s. Responsibilities for controlling pollution were generally consolidated under a single agency, the US Environmental Protection Agency, and similar patterns of organization emerged in many state and local governments. The resulting system of federal, state, and local laws and the consolidation of most regulatory functions into a single agency has realized significant improvements in controlling pollution, especially point sources that once discharged significant quantities of effluent. Federal and state funding of municipal wastewater systems and coastal zone management programmes has stimulated a wide range of treatment programmes that are now being financed through local user fees. For example, the federal government has provided over $58 billion in construction grant money for the construction of municipal wastewater treatment plants. This programme was then phased out in favour of a state revolving fund programme that provides federal seed money, but requires local governments to repay the loan through taxes, municipal bonds, and other instruments.13 To place some perspective on progress in this area, municipal wastewater from 80 million people was subjected to secondary treatment in 1972, whereas in 1988 secon-
Assessment and conclusions I have attempted local activities
to provide regulating
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13The programme also requires limited matching funds from state and local governments in most cases.
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dary treatment has been extended to approximately 140 million people - an increase of 75%. One can attempt to assess the effectiveness of the US approach by improvements in water quality, but the limitations of baseline data, increases in population, economic activity and other variables often require such qualifications that the resulting conclusions have limited assessment value. It may be more useful to consider the level of control required by various activities and the extent of institutional development that has surrounded the US approach to controlling environmental pollution. Numerous national programmes aimed at protecting the environment have been created while each of the 50 states and territories have established institutions to regulate and control activities within their borders. Many local governments have also acquired the institutional capacity to regulate selected environmental problems and have been reasonably successful in establishing stringent requirements especially in those areas where state and regional authorities have provided the support and scientific basis to support various forms of action. Also significant has been the evolution of state and local programmes designed to regulate and manage the development of coastal areas better. The idea of identifying the coastal zone as a unique resource requiring the coordination of federal, state, and local land use interests was an ambitious undertaking that could have easily failed in its objective to become a useful mechanism for managing development activities along the coast. The US Coastal Zone Management Program, has, however, grown to cover an increasing range of issues and has effectively involved local governments in those issues that affect the continued vitality of coastal areas as productive and attractive communities. It should be noted that while the regulation of development activities along the US coastline and other areas of the country has produced significant and tangible improvements, both in environmental quality and the realization of more compatible and appropriate land uses, the regulation and restriction of land use has brought forward serious legal questions. Central to this debate is the question of whether various restrictions constitute a ‘taking’ of personal property that requires financial compensation under the US Constitution. This is a complex subject under US law whose evaluation will significantly affect the future of land use regulation. Past US pollution control programmes have relied on a media specific orientation (ie regulation of air, water, waste, etc) that has resulted, in some cases, in the transfer of pollutants from one media to another.
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Greater attention is now placed on cross-media approaches as well as ecosystemor watershedbased approaches that look at sources across an entire area. These changes also reflect a recognition that ‘command and control’ regulation by federal and state governments has limits in the effective control of certain sources and that local programmes are critical in addressing many of the more unique and diverse sources of pollution. While the US experience has demonstrated the necessity of involving state and local government, it has also shown the value of federal programmes designed to support the institutional capacity of local governments. Both developed and developing countries must establish the institutional capacity for state and local governments to tackle environmental problems. US environmental programmes, including those addressing land-based sources and coastal development activities, are implemented, in large part, by state and local governments. The stringency of such programmes and in many cases, their very existence, would be doubtful in the absence of a concerted and strong federal programme. In this respect, the US experience suggests that effective state and local programmes need to be stimulated and supported through an organized and concerted programme of the federal government. Federal oversight has also proved necessary in the USA to ensure minimum standards of environmental protection. This should not suggest that environmental policy needs to be rigidly centralized. It does, however, offer a picture where all levels of government can work through a network of programmes that hopefully capitalize on the strengths of each level. For example, it would be both inefficient and unrealistic for 50 state governments and innumerable local governments to invest in research to evaluate environmental problems common to the nation as a whole. At the same time, state and local governments offer the most efficient means of enforcing pollution control standards and establishing land use policies suited to local priorities. The US experience suggests that a well coordinated programme involving all levels of government is for managing land-based sources of necessary marine pollution. It is probably necessary, however, for national governments first to establish effective national institutions and programmes that can stimulate and support action by state and local governments. The views and opinions expressed in this paper are those of the author and are not intended to represent views of the US Environmental Protection Agency or the US government as a whole.
Marine Policy 1994 Volume
18 Number
2
Land-based marine pollution and coastal zone management Role of state and local government in the USA
B C Wood-Thomas
Land-based sources (LBS) are estimated to contribute 80-90% of the total pollutants entering the world’s oceans. These sources include a wide spectrum of activities, and, because of this diversity, require the creation of generic distinctions. The most basic distinction, point and non-point, is made on the specificity of the source and relates to the existence, or lack thereof, of a discrete outfall. The USA has relatively few (approximately 350) point sources that discharge directly into the ocean. However, discharges to coastal waters (including estuarine waters) number around 20 0OO.l
Point sources Point sources are distinct, identifiable outfalls whose origin can be precisely located (eg discharges through pipes). Industrial discharges are usually easy to locate and may be analysed to identify selected metals, toxics, and other hazardous pollutants. Municipal wastewater treatment plants account for some 25% of total point sources discharging to coastal waters, but account for 90% of the total effluent flow. Because vast areas of the world fail to treat sewage adequately and because of increasing population along the world’s coastlines, municipal waste provides one of the most widespread pollutants in the marine environment.
‘Upriver discharges and other contributing sources outside coastal areas are not accounted for in these figures. Bryan Wood-Thomas is a Marine Policy Advisor with the Environmental Protection Agency, 401 M Street SW, Washington DC 20460, USA.
0308-597x/94/020165-10
0
1994 Butterworth-Heinemann
Ltd
Non-point sources Non-point sources of pollution are dispersed sources that enter the marine environment via indirect pathways, such as run-off or through the atmosphere. These pollutant sources, although not directly discharging to marine waters, are a significant source of pollutant loadings. Common examples include: pesticide and fertilizer run-off; salt; petroleum; and other contaminants from roadways, parking lots, and other hard surfaces; as well as volatile organic emissions that contribute to ozone and other air pollution problems. Non-point sources account for more than half the nation’s water pollution and can be subdivided into four main categories: urban, agricultural, industrial and construction/ development related. Atmospheric deposition can also be considered a non-point source of pollution with respect to the marine environment and is discussed separately. Urban run-off is typically collected through stormwater systems across a municipal area. This mixture will include oil, grease, pesticides, fertilizer, salt, sediment, and other materials that are periodically swept away in rain storms. Storm events also contribute to marine debris problems (mainly plastics). While plastic debris may have little effect on water quality, it adversely effects marine life due to ingestion and entanglement and is a significant source of aesthetic pollution along beaches. Agricultural sources typically include farming and silviculture operations that frequently use significant quantities of commercial fertilizer, herbicides, and pesticides that are later washed away by rainfall and through irrigation systems. Nutrients are of signifi-
16.5
L~~d-b~~d
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cant concern in the run-off from intensive farming practices. Intensive livestock practices lead to high ammonia emissions, soil acidification and consequently enhanced drainage. Overgrazing exacerbates erosion and the ultimate disposal of animal wastes increases the overall organic load to coastal waters. In addition, erosion of farmland and forests contributes immense quantities of sediment that fills reservoirs, clogs waterways, buries benthic communities and otherwise degrades aquatic ecosystems that are unable to handle rates of erosion that exceed natural levels. Irrigation associated with agriculture in arid areas has also taken its toil on the marine environment. Irrigation water is generally consumed before reaching the coast, thus decreasing the amount of water available for adequate flushing. Any drainage that does occur as a result of irrigation often contains high levels of fertilizers and pesticides and may be highly saline. Agricultural and industrial contaminants may also be transported to rivers and coastal waters via ground water. Industrial non-point sources of water pollution include the run-off of heavy metals and other compounds from industrial stockpiles, mining operations, and contaminated stormwater. Less important, though sometimes locally significant, are contaminated aquifers that interface with river inputs and coastal waters. Construction/development related activities also contribute to the non-point source problem. Deforestation, displacement of earth, and the resulting erosion during and after construction can produce significant volumes of sediment that frequently end up in coastal waters. Coastal development projects, dredging operations, and the reclamation of shallow coastal waters all contribute in varying degrees to the loss of habitat in the coastal zone. This problem has been especially critical in tropical settings where mangroves and coral reefs have been destroyed through either excessive erosion or direct development.
Coastal diversity The US coastline involves a broad array of coastal types ranging from broad barrier island systems on the Mid-Atlantic coast to rocky headlands along the North-west Atlantic and North-eastern Pacific coasts. Furthermore, the US coastal zone includes cold water temperate and arctic conditions as well as warm water, tropical ecosystems in Florida, Puerto Rico, and the Pacific. In light of this diversity, US policies need to be adaptable to a wide range of
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conditions, not only from an ecological standpoint, but also from a development perspective. Land use and development patterns vary considerably across this spectrum of geographic conditions and state and local government are relied upon to develop and implement programmes that are appropriate to local conditions. This is especially true in the area of land use regulation, as is discussed below.
Relationship between federal, state, and local environmental law in the USA National legislation governing pollution control in the USA is, as a general rule, highly specific in the goals and standards to be attained. The US Environmental Protection Agency is responsible for developing specific regulations and standards applicable under each of the major environmental statutes, yet the implementation and enforcement of most standards is often undertaken by state governments. A good example of this relationship is the Resource, Conservation, and Recovery Act (RCRA) that mandates federal standards for the management and disposal of hazardous wastes. The law and implementing regulations stipulate a broad array of management requirements that must be applied to certain substances and waste mixtures. These requirements include specific storage, transportation, disposal, and waste minimization requirements. Individual states must in turn develop their own laws that implement these requirements. States may elect to pass more stringent standards and requirements (except for transportation standards that are subject to interstate consistency requirements) and must demonstrate their capacity to enforce the applicable standards. Although state obligations vary under different environmental statutes, this model of federal and state authority is typical of US regulation of water, air, and waste disposal activities. Land use planning, development, and construction regulation is managed by local government and to a more limited extent, by states. Municipal and county governments typically establish land-use planning, zoning, and other development controls that frequently require permit applications and, in many cases, public hearings. Site construction regulations controlling sediment run-off associated with excavation and other grading activities are also regulated and enforced by local governments. Since federal and state governments do not, as a general rule, issue standards or regulations relating to land use, considerable variation exists in the regulation and oversight of various development activities.
Land-based
In the coastal zone, as in other areas of the country, local and state governments formulate standards and balance conflicting interests between development, conservation, and other users. The federal government, however, has recognized the unique importance of the coastal zone and the ‘public goods’ value of coastal resources to the population as a whole and has provided a series of incentives for states and localities to develop integrated coastal zone management programmes that reflect various goals and guidelines which are stipulated under the Coastal Zone Management Act (CZMA). The conservation of specially protected areas (both onshore and offshore) is accommodated through federal designation procedures that nominate selected areas in consultation with state and local government.
US media and cross-media approaches Although various forms of water pollution were regulated under different laws prior to 1972, the basic framework for controlling water pollution was established by enactment of the Federal Water Pollution Control Act in 1972. This was later modified in 1977 and renamed the Clean Water Act (CWA). The Clean Water Act establishes, among a permit programme that is imother things, plemented either by the federal government or by states with authorized programmes, a system of minimum national effluent limitations, and guidelines and standards for selected industries. The act also requires states to develop water quality standards and provides for special problems such as toxic chemicals, the control of non-point sources, and a state revolving loan programme. Prior to 1970, ambient water quality standards were generally set by the states for various water bodies within their borders. Although the approach offered flexibility in state regulatory practices, the system worked poorly in most states. Major problems included: inability to determine when and if a specific discharge violated ambient water quality standards; inability to regulate interstate waters; and inadequate enforcement and considerable variation in standards from state to state including no standards in many states. Although a few states made the water quality approach work, it was clear by 1970 that an effective nationwide approach would require federal mini-
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mum ‘end-of-pipe’ effluent criteria enforceable directly against the discharger.’ Even so, US law between 1970 and 1977 relied heavily on ambient water quality standards. This continued to be ineffective and amendments to the CWA in 1977 shifted emphasis to technology-based controls backed up by water quality standards. The Coastal Zone Management Act (CZMA) and the Clean Air Act are also significant statutes stipulating controls on land-based sources. These laws as well as relevant sections of the Clean Water Act are described in more detail below. Point source regulation under the CWA The primary mechanism in the USA for controlling point source discharges is a nationwide permit programme known as the National Pollutant Discharge Elimination System (NPDES). It is worth noting that the CWA defines a point source as ‘any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged’. Under the NPDES programme and many other US environmental programmes, individual states may take over the permitting programme once adequate legislation is in place and the EPA has approved the programme - 39 of the 50 states currently administer and enforce their own permit programmes. Technology-based effluent controls. Various standards of technology-based controls are required depending upon the pollutants involved and the age of the facility. Technology-based standards under US law require best available technology in specified circumstances as well as other variations of technology application. When the CWA was first implemented, many existing discharges were required to achieve the best practical technology (BPT). In short, this standard was the equivalent of the ‘average of the best existing performance by well-operated plants within an industrial category or subcategory’.” This determination was to take into account such factors as the age of the plant and process employed, requiring what amounted to a cost-benefit analysis that took into account a broad range of engineering factors common to a particular industry. It should be emphasized that BPT was a transitional mechanism for existing industries with achievement of higher standards required in subsequent years. Best conventional pollutant technology (BCT) 2Environmenfa/ Law Handbook, p 266.
Government
institutes,
Rock-
ville, MD, 1985, 3ibid, p 285.
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that federal construction grants and state revolving funds have provided millions in capital investment to facilitate construction of adequate public waste systems in local communities across the USA. Federal and state finance programmes targeted for the construction of municipal and private waste treatment systems are discussed below.
50 affected % miles2 by each
pollutant
40
30
20
10
-
0
Figure 1. Top ten pollutants
in US estuaries.
Source: The Quality of Our Nation’s
Water,EPA, Washington,
1990.
was required in 1977 for fecal coliform, suspended solids, pH, biological oxygen demand (BOD), oil, grease, and other pollutants determined by the EPA as ‘conventional’ pollutants. BCT limitations are set by the federal government based on a consideration of the reasonableness of the relationship between the cost of attaining a reduction in effluent and the resulting benefits. For practical purposes the process of establishing best practical and best conventional technologies can be considered as essentially the same and often resulted in comparable or equal standards. In contrast, best available technology (BAT) is defined as the ‘very best control and treatment measures that have been or are capable of being achieved’ and are to include in-plant process changes. Specific standards are also set for municipal or publicly-owned treatment works. Pre-treatment limits are established for industries discharging into public sewer systems to ensure proper operation of the sewage treatment facility whose operation and enforcement is the responsibility of local governments. In this area, primary responsibility rests at the local level with the state and federal government serving as a back-up intermediary should the local and/or state government fail adequately to maintain and enforce federal standards. It should be noted
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Water quality criteria. As has been noted earlier, federal or state permits must impose technologybased effluent limitations. These limitations function as nationwide minimum (or base level) discharge standards. The CWA also provides for the imposition of more stringent requirements where dictated by the need to protect or maintain water quality in specific bodies of water.4 The CWA sets fishable and swimmable waters as the goal for all US waters. Local treatment plants are required to take additional measures to meet state or federal water quality standards where such standards exist. Water quality-related effluent limitations have the potential to require levels of treatment considerably higher than those required under technology-based limits in areas of heavy discharge, in waters where very stringent quality standards have been established, and in waters with limited assimilative capacity, In practice, the enforcement of water quality standards has been difficult due to complications associated with translating ambient water-quality standards into discharge limitations for specific sources. Non-point source programmes Non-point sources contribute more than half of the suspended solids, phosphorus, chromium, copper, lead, iron, zinc, and fecal coliform bacteria that pollute US waters.’ The most common non-point pollutant is soil eroded from farms, construction sites, and stream banks. The soil destroys aquatic habitats by increasing turbidity, cutting off sunlight to aquatic plants and other organisms, and smothering fish spawning areas. Run-off poisoned with fertilizer, pesticides, toxic metals, and oils presents additional problems. An excess of nutrients in the water column accelerates vegetation growth which can lead to oxygen depletion. Overall, as coastal population and development increases, the increasing number of sources leads to a consequent increase in the loading and stress on adjacent water bodies. US regulatory programmes have focused on controlling discharges from major industrial and municipal point sources. As these efforts have, in some Vbid, p 300. ‘Wastes in Marine Environments, Office of Technology ment, US Congress, 1987, Chapter 3.
Assess-
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Land-bled
cases, reached decreasing levels of return per unit of effluent reduction, more and more attention has been directed to the control and management of diffuse, non-point sources of pollution. Urban and agricultural run-off are the two most general categories responsible for water quality problems in numerous watersheds. Increasing attention on the control of these sources has also shifted the focus to regional, state, and local programmes that are best equipped to deal with the specific problems and land-use practices that are unique to a given area. Regional, state, and local programmes designed to better manage these sources of pollution are discussed below. Regional, state, and local programmes to address non-point pollution are stimulated or mandated by requirements and/or incentives under the CWA and the Coastal Zone Management Act (CZMA). Other US statutes and programmes (such as the Department of Agriculture’s Soil Conservation Program) also provide requirements and/or incentives, but discussion in this paper is limited to the CWA and CZMA since they serve as the core of US programmes in this area. Recent regulations have established treatment requirements for run-off in cities with populations over 100 000 and require permits for discharges from municipal collection systems. Run-off from industrial sites is also subject to specific permit requirements. Other permit and non-permit programmes aimed at both agricultural and urban run-off generally prescribe or encourage a series of ‘best management practices’. For example, farmers tilling land in riparian areas have been encouraged through federal, state, and local programmes to plow fields in a manner that minimizes erosion. Other programmes address pesticide application. Many local and regional programmes require minimum buffer zones and other mechanisms aimed at intercepting run-off. Amendments in 1990 to the CZMA require states and territories to develop a Coastal Nonpoint Pollution Control Program. These programmes are implemented through both the CWA and the CZMA and require that states identify land uses that individually or cumulatively contribute to the degradation of coastal waters. Requirements also include the identification of ‘critical coastal areas’ where new land uses or substantial expansion of existing land uses are subject to various management measures and public participation requirements. Atmospheric
deposition
Atmospheric deposition is the least discussed aspect of land-based marine pollution, even though global
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estimates attribute 3&40% of marine pollutants to contaminants transported through the atmosphere.6 Atmospheric deposition can be direct (ie direct deposition to coastal and marine waters) or indirect (ie deposition on land and streams that is later carried to coastal waters via run-off). The US Clean Air Act stipulates a vast array of air quality requirements affecting both stationary and mobile sources of air pollution. It should be noted, however, that air pollution sources in the USA have not yet been regulated with pollution of the marine environment as a consideration. Recent programmes controlling acid rain were based, in part, on estimated impacts to various freshwater lakes and forests in the North-eastern and Mid-Atlantic states, but impacts on coastal and marine waters have not been a subject of legislative action. Although impacts on the coastal and marine waters have not yet played a role in US air pollution policies, reductions in certain pollutants (most notably lead) have contributed to improved water and sediment quality. Like many other US environmental statutes, the Clean Air Act mandates standards and programmes for implementation by state governments. Various areas throughout the country are designated as attainment or non-attainment areas for selected air pollutants. As most of these non-attainment areas are large metropolitan areas subject to federal and state sanctions (eg lack of eligibility for federal transportation funds), local governments and metropolitan authorities are playing a central role in establishing innovative programmes to achieve compliance with air quality standards. Land use planning
and coastal zone management
Land use planning in the USA is almost exclusively performed by local authorities.’ Authorities responsible for zoning, building codes, and other development policies may be organized by township, county, or other divisions of local government. management of the coastal zone is an integrated effort of local, state, and federal government. Although all three levels of government play critical roles in the management of the coastal zone, state government is the central force responsible for organizing programmes to be implemented by local ‘The State of the Marine Environment, UnitedNations Group of Experts on the Scientific Aspects of Marine Pollution, UNEP Regional Seas Reports and Studies, No 115, 1990. 7The US federal government does not exercise land use authority except for federal lands. The size and extent of federal lands in Alaska and the western states, however, account for a very sizable area of land use jurisdiction. Individual states do exercise authority in this area, but generally delegate to local governments.
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governments. The federal government serves as the catalyst for state programmes by providing grants and other incentives for states to create programmes consistent with national goals. The federal government, however, does not exercise the powers common to federal agencies responsible for regulating various forms of environmental pollution. This is based, in part, on the philosophy that land use planning is best administered by local governments and that management of the coastal zone, especially development of coastal properties, is more appropriately managed in the context of land use and development planning. Land use planning. Land use planning exists at a variety of levels in the USA. The most common and widespread form of planning in the US is local zoning laws that map out various areas of the community suitable for industrial, commercial, and residential development as well as designating particular areas for parks, recreation, and wildlife conservation. Such laws are often organized into a community ‘master plan’ that contains more detailed requirements concerning development densities, setback requirements, building height limitations, and special requirements for proposed developments near floodplains, wetlands, and other critical areas. Modifications to local zoning laws and decisions concerning individual development proposals are usually managed by a local planning authority and zoning board. Members of the zoning and/or planning committee may be volunteers or, more commonly, are elected or appointed to serve for periods of two or more years. Decisions concerning various development proposals are almost always the subject of public hearings where concerned citizens and affected property owners may air their views. As a general rule, rural areas and small towns possess less restrictive ordinances and may possess no restrictions in land-use, while larger communities and more densely populated areas tend to regulate construction and development activities at considerably higher levels. The success and failure of local planning efforts is frequently dependent upon three important variables: (1) the adequacy of existing requirements and their innate ability to provide useful controls on development, (2) the political commitment and strength of the system to withstand excessive and inappropriate requests for variances, and (3) the ability of the plan to accommodate public interests. The second factor noted is perhaps the most important variable since well conceived land use models can be seriously undermined if the political organiza-
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tion of the zoning board or other decision making body is susceptible to routine variances to accommodate special development interests. Coastal zone management. A national effort to coordinate development planning along the US coastline began in 1972 with enactment of the Coastal Zone Management Act. The act outlines four basic policies: (1) to preserve, protect, develop, and where possible, restore or enhance the resources of the US coastal zone; (2) to encourage and assist the states to develop and implement coastal zone management programmes meeting specified national standards; (3) to protect significant natural resources, improve protection of life and property, and to improve predictability in government decision making; and (4) to encourage the participation and cooperation of state and local governments as well as interstate, regional, and federal agencies.s The US Coastal Zone Management Program provides funds, policy guidance, and technical assistance to coastal states and US island territories to help them establish and maintain CZM programmes that meet certain national objectives. To foster state participation, two kinds of incentives are provided: (1) federal matching grants which help states meet the cost of implementing their programmes; and (2) federal consistency authority, which requires that federal activities directly affecting the coastal zone must be conducted in a manner consistent to the maximum extent feasible with state CZM plans. State plans must be approved by the federal government as consistent with federal goals and are evaluated every two years. States are required to address nine national objectives:
protection of natural resources; management of coastal development to avoid hazardous areas; priority consideration to coastal dependent uses and energy facilities; public waterfront access; assistance in urban waterfront and harbour redevelopment; coordination and simplification of government procedures; consultation and coordination with federal agencies; public participation in decision making; and comprehensive planning, conservation, and management of living marine resources. 8Coastal Zone Management in the USA, US Department Commerce, 1990, p 1.
National Oceanic
and Atmospheric
of Administration,
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Land-based
Also included is a system of national estuarine research reserves designed to help states acquire and manage estuarine areas as natural field laboratories. This is facilitated by financial assistance rewards that provide funds on a SO/50 matching basis. All 35 coastal states and US island territories participate in the programme. To date, 29 states and territories, covering 94% of the US coastline, have received federal approval and are implementing programmes at the state and local level.’ Management efforts have led to a reduction in the risk to life and property from storms and have focused state efforts on deterring development in highly vulnerable areas of the US shoreline, including the adoption of setback regulations and other mechanisms described below. Additionally, the programme encourages the acquisition of wetlands and other critical habitats, the control of pollution sources and development planning that recognizes long-term coastal dynamics as well as public access and education.
State and regional efforts As mentioned above, states must develop selected environmental standards and may choose to implement and enforce environmental pollution control standards. States may, and many do, elect to adopt more stringent standards in various areas. In those states that frequently develop more stringent standards, state programmes are the driving force in environmental policy, while in other states federal standards serve as the driving force in establishing various pollution control standards. On the other hand, states are the primary players in establishing coastal zone management programmes and policies. For this reason, the discussion of state programmes will focus on coastal zone management and examples highlighting specific programmes. Recent amendments to the Coastal Zone Management Act require states and territories with federally approved programmes to develop specific programmes for controlling non-point pollution of coastal waters. A variety of approaches are used by many states and territories to address run-off problems of particular signi~cance to individual states. Rhode Island requires development applicants to submit professionally designed sedimentation and erosion control plans and stormwater management plans. All new developments must keep run-off at predevelopment levels and discharge of run-off ‘Ibid, p 2.
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directly into the estuary is prohibited. Run-off from parking lots and roads adjacent to the coastline must be treated to remove oil and sediments. Driveways and parking areas within 200 ft of water must be constructed with porous materials. The state of Alaska has adopted buffer zones along rivers with critical salmon populations. For example, nearly SO% of the entire US sockeye salmon harvest comes from Bristol Bay, A1aska.t’ A local programme in Bristol Bay establishes a 100 ft buffer for non-water-dependent development to protect salmon migration, spawning, and rearing and extends to tributaries that affect those waters. In Maryland, a state ‘Greenshores Program’ promoted the planting of trees, shrubs, and native ground covers as part of a buffer along the shoreline of the Chesapeake Bay. Maine requires a 75 ft setback for construction along marine and fresh waters to maintain vegetated buffers. Maine requires coastal communities to zone all lands within 250 ft of a waterbody and has established standards to control sediment and phosphorous run-off. The New Jersey Coastal Program provides a good example of how a state programme has served as a catalyst to regulate stormwater discharges from new developments. Different engineering solutions and other methods are used to compensate for the added run-off and pollution caused by development. When land that was formally undeveloped becomes covered with parking lots, buildings, and other impervious surfaces, rain water can no longer be absorbed into the ground. This excess water often causes erosion and downstream flooding Stormwater ordinances can use a number of innovative methods and may include such measures as retention basins to control peak flows, recharge trenches, porous paving and piping, contour terraces and swales. The key standard of the New Jersey programme and many other stormwater programmes is a requirement that peak run-off following development does not exceed pre-construction conditions. Vegetated buffers are also required in many programmes and engineers are now designing retention basins to serve dual purposes. They detain stormwater at periods of peak flow, but can also be used to capture the first flush of stormwater that contains the bulk of pollutants (ie sediment and hydrocarbons). These basins can capture 40-90% of pollutants while adding little cost to the construction of a retention basin already needed for flood control purposes. I’ ‘°Coasfai ~a~agemenf So/ufions to Nonpoinf Source Wafer P~l/ufi~n, US NationalOceanic and AtmosphericAdministration, Technical Assistance Bulletin No 102, April 1990, p 7.
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Regional programmes Numerous estuaries and other coastal waterbodies in the USA encompass watersheds that include several states and numerous localities. Attention over the last 20 years to restoring and improving the health of these waterbodies has led to a recognition that planning efforts need to be coordinated across the entire watershed if one is to make significant, longterm improvements to the health of the waterbody. This evolution in thinking is frequently described as the ‘watershed approach’. Depending upon the scale of the watershed, the ‘watershed approach’ usually takes on a regional scale that may involve numerous counties and cities, and, frequently, several states. Regional bodies have been set up around various coastal waterbodies. Some of these bodies have been formed by federal programmes and others by state and local governments. The National Estuary Program, or NEP, was established in 1987 and sets up management committees for selected estuaries deemed to be of national significance. Conferences are convened by the US Environmental Protection Agency for a period of five years to provide a framework for local officials, technical experts, citizens, and interest groups to work together in identifying major environmental problems in the estuary and how to address those problems. The National Estuary Program currently includes 21 programmes ranging from Puget Sound in the State of Washington to Casco Bay, Maine and San Juan Bay, Puerto Rico.
Local regulation and planning Land use planning in the USA is primarily a function of local government. Federal government involvement is limited to siting selected federal facilities, construction of interstate highways, the management of federal lands, and other specialized circumstances. States exercise certain powers over land use, especially those adjacent to coastal waters, but will generally require that local governments form decision-making bodies in order to address those aspects of the problem which are identified at the state level. Development and construction restrictions. Local governments in many areas of the USA require construction permits for new construction projects and renovations. These requirements frequently “Coastal Pollution, Technical
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Management Solutions to Nonpoint Source Water National Oceanic and Atmospheric Administration, Assistance Bulletin No 102, 1990, p 43.
apply to industrial, commercial, and residential properties. For example, a homeowner renovating a house or expanding a structure will need to submit plans verifying compliance with various building codes, construction standards, and zoning requirements. Historically, building permits in the USA have focused on meeting minimum standards for mechanical systems, structural integrity, plumbing, electrical, and other architectural details. Over time similar permit systems have been created in many communities to address development issues impacting adjacent land owners and the community at large, as well as environmental pollution issues that may be a distinct function of development and construction activities. Land use zoning is the cornerstone of US land use planning and may be described as a communitybased process of deciding what areas of a community are suitable for certain forms of development. This is most commonly accomplished by developing a community master plan that designates certain areas suitable for single family housing, multi-family housing, light commercial uses, heavy industry, greenspace, and other uses. Further sophistication of this process has produced requirements for general development permits that require applicants to address a host of specific issues including forms of pollution otherwise unregulated by federal and state law. Stormwater control is one of the more significant subcategories of non-point pollution where numerous localities are developing regulations. Highdensity communities tend to rely upon structural controls and techniques such as requiring the collection and treatment of run-off prior to release into ground or surface waters. Less developed communities tend to rely on non-structural controls, including the adoption of zoning restrictions that limit the type and density of land use in coastal areas.‘* Selected examples. In Juneau, Alaska, a local coastal protection plan prohibits hazardous landfill materials within 100 feet of the floodplain to prevent leaching of pollutants into adjacent waters. In addition, new development proposals involving the storage of hazardous materials are not allowed within the loo-year floodplain unless there is no feasible alternative and unless safety measures are provided to prevent accidental discharges. Two local governments in Rhode Island have undertaken programmes to encourage proper maintenance and operation of household septic systems adjacent to ecologically sensitive waters. These “ibid,
p 45.
Marine Policy 1994 Volume 18 Number 2
Land-based
programmes involved mailing information to homeowners on the effects of overloaded septic systems and offered a local tax rebate as an incentive for annual pump-outs. Local governments in the State of Washington have used the State Revolving Fund Program to offer low interest loans and grants to low-income households in need of septic system improvements. Numerous local governments in Virginia and other areas of the country require builders to erect fencing around the perimeter of construction sites to prevent erosion and excessive run-off. Local communities along the Long Island Sound also require that peak rates of stormwater run-off do not exceed pre-development levels. This policy of ‘zero additional run-off’ is quickly becoming a standard model for local site development regulations. Numerous county governments surrounding the Chesapeake Bay have adopted ‘critical area’ regulations that severely limit development along coastal areas and tributaries of the Bay. Regulations specify acceptable density levels, set-back requirements, prohibitions against development in non-tidal wetlands, and may require above ground septic systems in areas with limited absorption capacity. Public involvement, I have attempted so far to describe the general relationship of federal, state and local requirements in the US while also noting examples of specific programmes. The process by which these requirements are established, especially those developed by local authorities, is subject to considerable scrutiny. The development of local plans and decisions on individual development applications almost always require public hearings where interested citizens, business interests, and environmental groups may argue for the approval or disapproval of particular requirements and/or applications. Because of this process, community requirements must attempt to balance the various interests put forward by selected members of the community. Recognizing that some communities place higher values on certain activities, local requirements vary considerably. Almost all these systems place considerable importance on the ability of citizens and interest groups to appeal decisions by the responsible authorities. Such appeals may be administrative in nature, or may be, and often are pursued through formal legal action.
marine pollution
and coastal zone management:
B C Wood-Thomas
pollution and related development activities in coastal areas. Of necessity, this article has made frequent reference to federal programmes and laws that provide the framework for controlling these sources of pollution. When considering the multitude of statutes, programmes, and other requirements as a whole, it can be difficult to project meaningful comparison with systems utilized by other countries and localities. Indeed, it is difficult to acquire a detailed understanding of national, state, and local programmes in one’s own country; let alone objectively assess the relative successes or failures of other national, state, and local governments. Therefore, I restrict my conclusions to US experience over the last four to five decades and some general lessons that are certainly open to debate. As noted above, pollution sources before 1972, including land-based sources of marine pollution, were generally the subject of state law as well as general nuisance and tort law. This situation produced inadequate results (indeed some states enacted few, if any restraints on polluting activities) and was generally considered unacceptable by the late 1960s. As a result, various federal environmental laws have been enacted since the early 1970s. Responsibilities for controlling pollution were generally consolidated under a single agency, the US Environmental Protection Agency, and similar patterns of organization emerged in many state and local governments. The resulting system of federal, state, and local laws and the consolidation of most regulatory functions into a single agency has realized significant improvements in controlling pollution, especially point sources that once discharged significant quantities of effluent. Federal and state funding of municipal wastewater systems and coastal zone management programmes has stimulated a wide range of treatment programmes that are now being financed through local user fees. For example, the federal government has provided over $58 billion in construction grant money for the construction of municipal wastewater treatment plants. This programme was then phased out in favour of a state revolving fund programme that provides federal seed money, but requires local governments to repay the loan through taxes, municipal bonds, and other instruments.13 To place some perspective on progress in this area, municipal wastewater from 80 million people was subjected to secondary treatment in 1972, whereas in 1988 secon-
Assessment and conclusions I have attempted local activities
to provide regulating
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of state and sources of
13The programme also requires limited matching funds from state and local governments in most cases.
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Land-based
marine pollution
and coastal zone management:
B C Wood-Thomas
dary treatment has been extended to approximately 140 million people - an increase of 75%. One can attempt to assess the effectiveness of the US approach by improvements in water quality, but the limitations of baseline data, increases in population, economic activity and other variables often require such qualifications that the resulting conclusions have limited assessment value. It may be more useful to consider the level of control required by various activities and the extent of institutional development that has surrounded the US approach to controlling environmental pollution. Numerous national programmes aimed at protecting the environment have been created while each of the 50 states and territories have established institutions to regulate and control activities within their borders. Many local governments have also acquired the institutional capacity to regulate selected environmental problems and have been reasonably successful in establishing stringent requirements especially in those areas where state and regional authorities have provided the support and scientific basis to support various forms of action. Also significant has been the evolution of state and local programmes designed to regulate and manage the development of coastal areas better. The idea of identifying the coastal zone as a unique resource requiring the coordination of federal, state, and local land use interests was an ambitious undertaking that could have easily failed in its objective to become a useful mechanism for managing development activities along the coast. The US Coastal Zone Management Program, has, however, grown to cover an increasing range of issues and has effectively involved local governments in those issues that affect the continued vitality of coastal areas as productive and attractive communities. It should be noted that while the regulation of development activities along the US coastline and other areas of the country has produced significant and tangible improvements, both in environmental quality and the realization of more compatible and appropriate land uses, the regulation and restriction of land use has brought forward serious legal questions. Central to this debate is the question of whether various restrictions constitute a ‘taking’ of personal property that requires financial compensation under the US Constitution. This is a complex subject under US law whose evaluation will significantly affect the future of land use regulation. Past US pollution control programmes have relied on a media specific orientation (ie regulation of air, water, waste, etc) that has resulted, in some cases, in the transfer of pollutants from one media to another.
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Greater attention is now placed on cross-media approaches as well as ecosystemor watershedbased approaches that look at sources across an entire area. These changes also reflect a recognition that ‘command and control’ regulation by federal and state governments has limits in the effective control of certain sources and that local programmes are critical in addressing many of the more unique and diverse sources of pollution. While the US experience has demonstrated the necessity of involving state and local government, it has also shown the value of federal programmes designed to support the institutional capacity of local governments. Both developed and developing countries must establish the institutional capacity for state and local governments to tackle environmental problems. US environmental programmes, including those addressing land-based sources and coastal development activities, are implemented, in large part, by state and local governments. The stringency of such programmes and in many cases, their very existence, would be doubtful in the absence of a concerted and strong federal programme. In this respect, the US experience suggests that effective state and local programmes need to be stimulated and supported through an organized and concerted programme of the federal government. Federal oversight has also proved necessary in the USA to ensure minimum standards of environmental protection. This should not suggest that environmental policy needs to be rigidly centralized. It does, however, offer a picture where all levels of government can work through a network of programmes that hopefully capitalize on the strengths of each level. For example, it would be both inefficient and unrealistic for 50 state governments and innumerable local governments to invest in research to evaluate environmental problems common to the nation as a whole. At the same time, state and local governments offer the most efficient means of enforcing pollution control standards and establishing land use policies suited to local priorities. The US experience suggests that a well coordinated programme involving all levels of government is for managing land-based sources of necessary marine pollution. It is probably necessary, however, for national governments first to establish effective national institutions and programmes that can stimulate and support action by state and local governments. The views and opinions expressed in this paper are those of the author and are not intended to represent views of the US Environmental Protection Agency or the US government as a whole.
Marine Policy 1994 Volume
18 Number
2