A Federal Act to Promote Integrated Water Management: Is the CZMA a Useful Model?
Thompson, Barton H., Jr., Environmental Law
I. INTRODUCTION II. FRAGMENTATION AND INTEGRATION A. The Problem of Fragmentation B. State Efforts to Promote Integration III. THE CZMA AS A POTENTIAL MODEL A. The History and Provisions of the CZMA B. Should the National Government Take a CZMA-Like Approach to Integrated Water Management? IV. STATUTORY PROVISIONS A. What Federal Agency Should Administer SWIM? B. Management by States or Water Basins C. The Best Geographic Scale for Integration D. Substantive Integration E. Interstate Integration V. INCENTIVES A. Federal Funding B. Federal Consistency C. Federal Technical Assistance D. Streamlined Permitting E. Federal Delegation VI. CONCLUSIONS
This Article examines whether the federal Coastal Zone Management Act (CZMA) (1) provides a useful model for national encouragement, support, and oversight of more integrated management of freshwater resources in the United States. The last several decades have seen increasing interest in such management, from informal watershed planning to the more formal and ambitious concept of integrated water resource management (IWRM). (2) Such approaches have sought to surmount the significant fragmentation that historically has existed in the water arena and sometimes stymied effective water governance. This fragmentation is both substantive--with separate agencies holding responsibility over different but often closely related substantive issues--and geographic--with a single watershed or water basin often crisscrossed by multiple geopolitical boundaries.
The fragmentation that has historically plagued water management resembles the state of coastal management prior to the CZMA. Critics of mid-twentieth century coastal management worried that the nation's coasts were at risk and would remain at risk so long as control over coastal zones remained highly fragmented. (3) In response, Congress in 1972 passed the CZMA to promote the development and implementation of comprehensive state-level coastal plans. (4) The CZMA differed from other major national environmental laws passed during the same period, such as the Clean Air Act (5) and Clean Water Act, (6) by not mandating any specific state action but instead encouraging voluntary state planning through two principal incentives: matching federal funds and a promise of federal consistency. (7)
The history of the CZMA suggests that it might be a model for similar national legislation encouraging more integrated management of water resources. The national government would appear to have as much of an interest today in enabling and ensuring sustainable management of water resources throughout the United States as it did in promoting effective coastal management in 1972. Because of the national government's existing role in water management, integrated management requires the participation of the national government. (8) Poor water planning in one region, moreover, can impact national water needs, the water management of neighboring areas, and national economic markets. (9) However, Congress is unlikely to pass a national directive for integrated, regional water management in today's political landscape. Not only has Congress shown little interest over the last two decades in adopting major new legislation addressing either water or the environment, (10) but states have always carefully and generally successfully guarded their discretion over nonquality issues in water management." The need for a direct and universal congressional mandate is also unclear. The complexity and cost of integrated watershed planning in many regions may exceed the benefits, undermining any argument for a universal requirement. (12) And many watersheds have already voluntarily embarked on integrated planning, undermining the need for a direct mandate. (13) In this setting, voluntary incentives might be both an attractive and the only available approach. …