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106th Congress (1999-2000)

House Report 106-485

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COASTAL COMMUNITY CONSERVATION ACT OF 1999

79-006

106TH CONGRESS

Report

HOUSE OF REPRESENTATIVES

1st Session

106-485
COASTAL COMMUNITY CONSERVATION ACT OF 1999

November 18, 1999- Committed to the Committee of the Whole House on the State of the Union and ordered to be printed
Mr. YOUNG of Alaska, from the Committee on Resources, submitted the following
REPORT
together with
DISSENTING VIEWS
[To accompany H.R. 2669]
[Including cost estimate of the Congressional Budget Office]

The Committee on Resources, to whom was referred the bill (H.R. 2669) to reauthorize the Coastal Zone Management Act of 1972, and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof the following:

SECTION 1. SHORT TITLE.

SEC. 2. AMENDMENT OF COASTAL ZONE MANAGEMENT ACT OF 1972.

TITLE I--REAUTHORIZATION AND AMENDMENT OF COASTAL ZONE MANAGEMENT ACT OF 1972, GENERALLY

SEC. 101. PROGRAM DEVELOPMENT GRANTS.

SEC. 102. COASTAL COMMUNITY CONSERVATION GRANTS.

`COASTAL COMMUNITY CONSERVATION GRANTS

SEC. 103. COASTAL ZONE MANAGEMENT FUND.

SEC. 104. AMENDMENTS RELATING TO COASTAL ZONE ENHANCEMENT GRANTS.

SEC. 105. AMENDMENTS RELATING TO WALTER B. JONES AWARDS FOR EXCELLENCE IN COASTAL ZONE MANAGEMENT.

SEC. 106. REPORTS.

SEC. 107. AUTHORIZATION OF APPROPRIATIONS.

SEC. 108. TECHNICAL CORRECTIONS.

SEC. 109. COASTAL ZONE MANAGEMENT OUTCOME INDICATORS.

SEC. 110. PERSONAL WATERCRAFT STUDY.

each study funded under this section consider the impacts of personal watercraft and other motorized recreational vessels, including noise and uncombusted fuel, on the following:

SEC. 111. PROTECTION OF PRIVATE PROPERTY.

`SEC. 320. PROTECTION OF PRIVATE PROPERTY.

TITLE II--AMENDMENTS RELATING TO NATIONAL ESTUARINE RESERVES

SEC. 201. POLICIES AND PURPOSES.

SEC. 202. AREAS THAT MAY BE DESIGNATED.

SEC. 203. DONATIONS.

SEC. 204. EVALUATIONS.

SEC. 205. AUTHORIZATION OF APPROPRIATIONS.

PURPOSE OF THE BILL

The purpose of H.R. 2669 is to reauthorize the Coastal Zone Management Act of 1972, and for other purposes.

BACKGROUND AND NEED FOR LEGISLATION

Congress enacted the Coastal Zone Management Act (CZMA) in 1972 to establish a federal- state partnership for managing the coastal areas of U.S. states and territories. Under the CZMA, the Secretary of Commerce provides grants to coastal states to develop and implement federally-approved coastal zone management programs. The term `coastal state' is defined as a `state of the United States in, or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island Sound, or one or more of the Great Lakes', including Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern Mariana Islands, the Trust Territories of the Pacific Islands and American Samoa. Only these coastal states and territories are eligible for assistance under the CZMA. The CZMA gives coastal states with approved coastal zone management programs the right to review certain federal actions to ensure that these actions are consistent with state coastal zone management programs. To date, 33 of the 35 eligible coastal states have federally-approved programs, and two more are completing their proposed programs. The CZMA is administered by the National Oceanic and Atmospheric Administration (NOAA) of the Department of Commerce. The authorization of appropriations for the CZMA expired on September 30, 1999.

The CZMA requires that state management programs include the following: (1) the boundaries of the coastal zone affected by the program; (2) an inventory and designation of areas of particular concern in the coastal zone; (3) a definition of permitted land and water uses that directly impact coastal waters; (4) an identification of how those uses will be controlled; (5) an outline of broad guidelines to determine priority of uses in coastal areas; (6) a description of the administrative structure that will operate the approved management program; (7) a definition of `beach' and a planning process for dealing with access to public coastal areas; (8) a planning process for energy facilities likely to be located in or significantly affect the coastal zone; and (9) a planning process for studying both the effects and alternatives for controlling coastal erosion.

Several sections of the CZMA authorize grant programs, including Sections 306, 306A and 309. Section 306 grants are known as administrative grants. Section 306 grants are used by the states to fund the administrative activities of their coastal zone management programs, including hiring personnel. Coastal states are required to provide a one-to-one match for 306 funds. States making satisfactory progress implementing their plans are also eligible for Section 306A resource management improvement grants. H.R. 2669 expands the 306A grants and renames the resource management improvement grants coastal community conservation grants. These grants assist states with on-the-ground projects within the coastal zone, including preserving or restoring coastal habitat, redeveloping urban waterfronts and ports, and providing access to public beaches and coastal waters. Section 306A grants must be matched by the state on a one-to-one basis. Under the new Section 306A coastal community conservation grants, states must find a qualified local sponsor for projects. This increased emphasis on community involvement is designed to increase local participation in and support for the coastal zone management program. Local sponsorship of 306A projects may be expressed in several forms to meet the goals and objectives of the CZMA, depending on what is appropriate for the particular project being considered. Local sponsorship may take the form of financial or in-kind contributions, or may be expressed as a resolution of support for a particular project from a local government with jurisdiction over the coastal area that is being considered for the project.

Finally, participating coastal states may compete for coastal zone enhancement grants under Section 309. These grants can be used to strengthen the state programs in emerging areas of concern, such as wetland protection and restoration, increased public access to coastal areas, control of development impacts and protection from coastal hazards. Under current law, no matching funds are required for these grants. H.R. 2669 would retain the Section 309 grant program, but requires the states to provide a one-to-one match, consistent with the other grant programs under the CZMA.

State grants under Sections 306, 306A and 309 were funded at a total $54.7 million in Fiscal Year 1999. Of that amount, $10 million was used for Section 309 grants. Each coastal state with an approved plan received federal coastal zone management grants totaling between $635,000 and $2.795 million in Fiscal Year 1999. The total amount of grants that each state is eligible for is determined by the state's coastal population and shoreline mileage, except that since 1993, Congress (in annual appropriations laws) has placed a cap on the maximum amount that may be given to any one state. H.R. 2669 reauthorizes the 306, 306A and 309 grant programs for five years.

Accountability and the lack of demonstrated progress within the federal and state coastal zone management programs is a concern of the Committee. In December 1997, the Department of Commerce Inspector General concluded that `only anecdotal evidence' can be cited `to demonstrate the accomplishments of the CZM program' and that `states have been unable to measure or evaluate `on the ground' outcomes of the CZM program because the data necessary to make these decisions has not been collected.' The Inspector General recommended that NOAA `develop a strategy to measure the effectiveness of the CZM program.'

In response, NOAA commissioned a study to investigate the effectiveness of the coastal zone management program. The researchers concluded that state coastal zone management programs were effective in implementing a limited number of CZMA objectives they reviewed. However, they reached this conclusion based primarily on assessments of policies, processes and tools rather than actual outcome data. The researchers state `there are insufficient data for systematic, out-come based performance evaluation of state CZM programs, largely because of the lack of a common set of outcome indicators that would link state management activities and decisions to national CZMA objectives.' The lead author of the study testified at a February 25, 1999, hearing recommending the development of such indicators and that Congress `initiate a national outcome monitoring and performance system' for the CZMA program. H.R. 2669 requires NOAA to submit a report to Congress that includes recommendations for a set of measurable performance and outcome indicators for state coastal zone management programs, and to submit draft legislation that would establish a coastal zone management outcome monitoring and performance evaluation system. The Committee

expects that these outcome indicators will be quantitative, to the extent practicable, and allow the Secretary of Commerce to document the public benefits of the CZMA.

The CZMA also authorizes the National Estuarine Reserve System (NERS). The System is a partnership between coastal states and NOAA. NOAA establishes standards for designating and operating reserves, supports the operation of each reserve, undertakes projects that benefit the entire Reserve System and integrates information from individual reserves to support decision-making at the national level. The states are charged with the day-to-day management of the reserves. Under the CZMA, the Secretary of Commerce can make grants, not to exceed 50 percent of the cost of the project, which enable coastal states to acquire, develop, and operate estuarine reserves. Designation of an estuarine reserve requires state agreement for the long-term management of the site for research useful to coastal zone managers. Since the NERS program began in 1972, it has grown from a single 4,400-acre site in Oregon to a 25-site system managing over one million acres in 19 states and Puerto Rico. Table 1 lists the active and proposed NERS sites. More than half the System is made up of two reserves: Apalachicola in Florida and Kachemak Bay in Alaska. Most of the land in the system is not owned by the reserve management agencies or NOAA. Instead, the majority of the land included in the reserves is held for conservation purposes by other state or federal agencies. H.R. 2669 would reauthorize appropriations for the NERS program for five years and provide increasing funds for operations and facilities.

COMMITTEE ACTION

H.R. 2669 was introduced on August 2, 1999, by Congressman Jim Saxton (R-NJ). The bill was referred to the Committee on Resources, and within the Committee to the Subcommittee on Fisheries Conservation, Wildlife and Oceans. On February 25, 1999, the Subcommittee held a hearing on the reauthorization of the CZMA, where the witnesses testified in favor of reauthorization of the program and inclusion of nonpoint source pollution provisions within the CZMA.

On August 5, 1999, the Subcommittee met to mark up the bill. Subcommittee Chairman Jim Saxton offered an en bloc amendment to make technical corrections and expand the scope of the personal watercraft study to include other types of vessels. Congressman Wayne Gilchrest (R-MD) offered an amendment to the en bloc amendment that requires the Secretary to reserve a portion of the CZMA Section 306A grants for nonpoint source pollution plan implementation. The Gilchrest amendment was adopted by voice. The Saxton en bloc amendment, as amended, was then passed by voice vote. Congressman Frank Pallone (D-NJ) offered an amendment to allow the Secretary to retain a portion of deobligated grant funds for administrative expenses. The amendment was withdrawn. Congressmen Saxton offered an amendment to require states to enact enforceable policies regarding the operation of personal watercraft in coastal areas. The amendment was withdrawn. Finally, Congressman Richard Pombo (R-CA) offered an amendment to prohibit any restrictions on commercial or private use of private property, or any taking of private land, under the CZMA. The amendment failed on a rollcall vote of 8 to 4, as follows:

G: GRAPHICS HR485.001

The bill, as amended, was then ordered favorably reported to the Full Committee by voice vote.

On October 6, 1999, the Full Committee on Resources met to consider the bill. Congressman James V. Hansen (R-UT) offered an amendment to strike the nonpoint source pollution provisions added to the bill in Subcommittee that would have allowed the Transportation and Infrastructure Committee to request a sequential referral of the bill. The amendment was adopted by a rollcall vote of 26 to 15, with one member voting present, as follows:

G: GRAPHICS HR485.002

Congressman Pombo offered an amendment that prohibited the Secretary of Commerce from: (1) requiring a state, as a condition of a grant under the CZMA or the approval of a state coastal zone management program, to take actions that would constitute a use of non-federal property for a public purpose without just compensation; and (2) taking private property for public use under the CZMA without payment of just compensation. The amendment was adopted by a rollcall vote of 24 to 23, as follows:

G: GRAPHICS HR485.003

The bill, as amended, was then ordered favorably reported to the House of Representatives by voice vote.

SECTION-BY-SECTION ANALYSIS

Section 1. Short title

The short title of H.R. 2669 is the Coastal Community Conservation Act of 1999.

Section 2. Amendment of Coastal Zone Management Act of 1972

Except as otherwise provided, all references to an amendment or repeal in H.R. 2669 refer to the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.).

TITLE I--REAUTHORIZATION AND AMENDMENT OF THE COASTAL ZONE MANAGEMENT ACT OF 1972, GENERALLY

Section 101. Program development grants

Program development grants under Section 305 of the CZMA assist states to develop coastal zone management programs. The authority for Section 305 grants expired on October 1, 1999. Section 101 amends Section 305 to extend program development grants through Fiscal Year 2003 to allow the last two remaining eligible states, Indiana and Illinois, to develop their programs. After 2003, federal funds will not be available for program development.

Section 102. Coastal community conservation grants

Section 102 replaces an existing grant program, the resource management improvement grant program (CZMA Section 306A grants), with a new coastal community conservation grant program. The new grant program promotes greater community involvement in coastal management by requiring local community sponsors for projects funded under the grants. Under this program, the Secretary of Commerce is authorized to make grants to coastal states for the purpose of assisting local communities carry out eligible conservation projects. Funds appropriated under this section must be allocated to the states according to the same formula used to allocate administrative grants under Section 306 of the CZMA. States are required to provide one-to-one matching for all federal dollars allocated under this section. The Secretary can suspend a state's eligibility for up to one year if that state does not fulfill the obligations of a grant made under this section.

To be an eligible coastal community project, the project must be submitted by the state coastal zone management program, be carried out in the coastal zone, achieve at least one of the existing objectives established in Section 303(2) of the CZMA (the Congressional declaration of policy), achieve at least one of the objectives of the grant program established in Section 306A(b), and be designed and carried out with a qualified local entity. `Qualified local entity' is a defined term, and means any local government, area wide planning agency described in the Demonstration Cities and

Metropolitan Development Act of 1966, regional agency, interstate agency or National Estuarine Reserve.

Section 102 requires that coastal community conservation projects funded under this grant program meet one or more objectives specified in Section 306A(b). The new grant program incorporates the objectives of the old Section 306A resource management improvement grant program. In addition, several new objectives are added to the list. These include: the redevelopment of historic waterfronts and ports; the preservation, restoration, enhancement or creation of coastal habitats; the preparation of plans that promote coastal community revitalization; the provision of access to public beaches and coastal areas for persons with disabilities; and the inventorying of existing points of public access to coastal areas. These new objectives will allow the states greater flexibility in implementing their coastal zone management programs, expand the scope of coastal community involvement in the program, and improve the success of on-the-ground projects that get funded under the CZMA.

A provision allowing states to use Section 306A funds for the development of coordinated processes among state agencies for the regulation and permitting of aquaculture is removed from the objectives list because the new grant program requires a local partner for all Section 306A projects. Local governments are not involved in coordinating permits among state agencies. A similar aquaculture coordination provision is added as an objective of the program enhancement grants established under Section 309 of the CZMA in Section 104 of H.R. 2669.

In addition to meeting the stated objectives of this section, grants made under the coastal community conservation grant program must be used for the specific purposes which are enumerated in Section 306A(c). Section 102 adds two new uses of the coastal community conservation grants. The first new use is the purchase and distribution of cultch material for oyster beds to promote shellfish production. The second new use allows states to use the grants to cover the cost of work needed to restore, enhance or create coastal habitat or to prepare plans that promote coastal community revitalization and that lead to construction of projects that are eligible funding under the coastal community grant program. This allows Section 306A money to be used to design projects that will be carried with future grants under this section.

Section 103. Coastal zone management fund

Section 103 requires that loan repayments under the coastal zone management fund established under Section 308 of the CZMA be used to offset federal administrative costs for this title. The coastal zone management fund receives loan repayments from the defunct Coastal Energy Impact Assistance Loan Program. Current law allows the fund to be used for program administration and other expenses. The balance of the fund is declining, and the fund is expected to receive its last payment within four years. Recent language in Department of Commerce appropriations laws has limited the use of these funds for program administration. Funds generated under this section will now be transferred directly to NOAA's Operations, Research and Facilities account to offset the expenses of carrying out the CZMA program.

Section 104. Amendments relating to coastal zone enhancement grants

Section 104 amends the grant program established under Section 309 of the CZMA. This program is known as the coastal zone enhancement grant program. The coastal zone enhancement grant program allows states to revise, update and improve their coastal zone management programs to address emerging new coastal issues. Under existing law, states are not required to match federal grant dollars. Section 104 requires the states to provide one-to-one matching funds for these grants, which is consistent with other grant programs established under the CZMA. Section 104 adds several new areas under which states may make enhancements to their programs, including the coordination of aquaculture permitting among state agencies and the ability to address significant emerging coastal issues that are of concern both nationally and locally. The `significant, emerging coastal issues' provision is intended to give the states the incentive to revise their plans to address the concerns of coastal communities within their boundaries. Section 104 requires that the Section 309 grants be allocated to the states under the same formula used to allocate the base program funding under Section 306 of the CZMA. The Secretary may suspend the eligibility of a state for at least one year if the Secretary finds that the state is not taking the actions committed to under the terms of the grant.

Section 105. Amendments relating to Walter B. Jones awards for Excellence in Coastal Zone Management

Section 105 amends the existing Walter B. Jones Excellence in Coastal Zone Management awards program authorized under Section 314 of the CZMA. Under existing law, the Secretary is directed to implement an awards program to promote excellence in coastal zone management. The awards program was funded by receipts in the Coastal Zone Management Fund, which will soon be depleted. This section makes the program permissive instead of mandatory and clarifies that funding for the awards should come out of the funds appropriated for the general administration of the CZMA.

Section 106. Reports

The Secretary of Commerce is required to submit a report every two years describing the administration of the CZMA program. Section 106 makes two changes to the report. First, the Secretary is no longer required to submit the report to the President prior to transmittal to Congress. Instead, the report can be submitted directly to Congress. Second, the requirement to report on the economic, environmental and social consequences of energy development in the coastal zone is removed, because this section was tied to the provision of economic assistance under the Coastal Energy Impact Assistance Fund established under Section 308 of the CZMA. This fund expired in 1988, and was repealed as part of the Coastal Zone Reauthorization Act of 1990. Congress has already received reports documenting the effectiveness of the Coastal Energy Impact Assistance Fund.

Section 107. Authorization of appropriations

Table 2 lists the amounts that are authorized to be appropriated to carry out the purposes, policies and grant programs established under the CZMA. Section 107 contains several additional provisions related to appropriations and grants made under this title. Coastal states are given up to three years to obligate any grant funds received under this title, after which the funds revert to the Secretary for future grants. Section 107 allows states to use grants received under this title to purchase federal services not available elsewhere or from the private sector, such as technical

assistance or Geographic Information System support from the Coastal Services Center in South Carolina. Section 107 requires that at least 10 percent but no more than 15 percent of the amounts appropriated to carry out Sections 306 and 309 of the CZMA be used for the coastal zone enhancement program under Section 309. This section also restricts NOAA from using any of the funds appropriated to carry out Sections 306, 306A, or 309 for administrative purposes. H.R. 2669 provides an explicit authorization of appropriations for administrative costs that is sufficient to meet the federal needs of this program. In addition, funding is authorized for the Barnegat Bay Personal Watercraft Task Force.

Section 108. Technical corrections

Section 108 makes several technical corrections to the CZMA, including amending the phrase `coastal state' to appear consistently throughout the CZMA.

Section 109. Coastal zone management outcome indicators

Section 109 requires the Secretary to submit to Congress a proposal for establishing a mechanism to measure the effectiveness of the state coastal zone management programs. Within two years, the Secretary of Commerce must provide Congress with a report containing a common set of measurable outcome indicators to evaluate the effectiveness of coastal zone management programs. The Secretary must provide the Governors of coastal states with a copy of the report and include their comments in the report. Within four years, the Secretary must submit recommendations for a national coastal zone management monitoring and performance evaluation system. This program is intended to improve the CZMA program by determining where the program is most successful and by identifying areas that need to be addressed to fully meet the purposes and policies of the CZMA. This section authorizes appropriations of $1 million for each of Fiscal Years 2000 and 2001 to develop the performance monitoring system.

Section 110. Personal watercraft study

Section 110 authorizes the Secretary to make grants to support peer-reviewed research to investigate the impacts of personal watercraft and other motorized recreational jet-powered vessels on coastal aquatic habitat. This section authorizes up to $2 million each year for Fiscal Years 2000, 2001, and 2002 to study the impacts of these vessels on wildlife, fish, other aquatic organisms, aquatic vegetation, water quality and shoreline stability. The Secretary is required to report back to Congress within 48 months on the results of the research and to summarize public comments based on a draft report published in the Federal Register.

The scope of the study is limited to the impacts of these vessels on marine habitat in the coastal zone, including the effects of noise and pollution. Personal watercraft are defined as `vessels that use an in-board motor that powers a water jet pump or a caged propeller and are designed to be operated by a person standing on, kneeling on, or sitting astride the vessel'. This definition includes personal watercraft that can carry more than a single person. Other motorized recreational vessels are defined as vessels that use an in-board motor powering a water jet pump or caged propeller and are designed to be operated by a person sitting within the vessel. The Secretary has the discretion to determine which projects will be funded and should consider the technical merits of the proposals before making grants. Grants made under this section should result in research that is peer-reviewed and likely to be accepted for publication in widely distributed technical literature.

Section 111. Protection of private property

Section 111 creates a new Section 320 of the CZMA, Protection of Private Property. This provision prohibits the Secretary of Commerce from: (1) Requiring a state, as a condition of a grant under the CZMA or the approval of a state coastal zone management program, to take actions that would constitute a use of non-federal property for a public purpose without just compensation; and (2) taking private property for public use under the CZMA without payment of just compensation.

The intent of Section 111 is to protect private property from federal actions that would result in a taking of the property for a public use without just compensation. Under this section, state and local governments are not prohibited from enacting restrictions on private property, such as local zoning ordinances, but the Secretary cannot require these types of restrictions as a condition of the CZMA grants or program approval. The prohibition also affects grants under the NERS program.

TITLE II--AMENDMENTS RELATING TO NATIONAL ESTUARINE RESERVES

Section 201. Policies and purposes

Section 201 clarifies the policies of the CZMA as they pertain to the National Estuarine Reserve System (NERS). The term `National Estuarine Reserve' is adopted as the official title for NERS units. Section 201 amends Section 303 of the CZMA to state that it is the policy of the NERS to develop federal, state and community partnerships to improve the understanding, management and stewardship of coastal areas and to encourage the development, application and transfer of innovative coastal management technologies to local, state and federal resource managers. Section 201 also replaces the definition of the term `estuarine sanctuary' with `national estuarine reserve' in Section 304 of the CZMA.

Section 202. Areas that may be designated

Section 202 amends Section 315 of the CZMA to clarify that areas designated as estuarine reserves may include estuaries, islands, transitional lands, and adjoining upland to the extent that this land constitutes a natural ecosystem unit, such as a watershed.

Section 203. Donations

Section 203 amends CZMA Section 315 to authorize the Secretary to enter into cooperative agreements and contracts with, or make grants to, any nonprofit organization established to benefit a National Estuarine Reserve, to the extent that such activities are consistent the purposes of the NERS. The Secretary is also authorized to accept donations to carry out research and education projects at the reserves. This change allows the estuarine reserves to use volunteers and donations, and is consistent with existing law pertaining to National Marine Sanctuaries and National Wildlife Refuges.

Section 204. Evaluations

Under existing law, the Secretary of Commerce is required to periodically evaluate the operations and activities of the NERS. Section 204 amends the CZMA to require the Secretary to include an evaluation of efforts to coordinate reserve activities with state coastal zone management programs established under the CZMA.

Section 205. Authorization of appropriations

Section 205 amends Section 318 of the CZMA to authorize the following appropriations to administer the NERS program: $7 million in Fiscal Year 2000; $8 million in Fiscal Year 2001; $9 million in Fiscal Year 2002; $10 million in Fiscal Year 2003; and $11 million in Fiscal Year 2004. This section also authorizes $12 million for construction at the reserves for each of Fiscal Years 2000 through 2004.

COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee on Resources' oversight findings and recommendations are reflected in the body of this report.

CONSTITUTIONAL AUTHORITY STATEMENT

Article I, section 8 of the Constitution of the United States grants Congress the authority to enact this bill.

COMPLIANCE WITH HOUSE RULE XIII

1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the Rules of the House of Representatives requires an estimate and a comparison by the Committee of the costs which would be incurred in carrying out this bill. However, clause 3(d)(3)(B) of that rule provides that this requirement does not apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974.

2. Congressional Budget Act. As required by clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974, this bill does not contain any new budget authority, credit authority, or an increase or decrease in tax expenditures. According to the Congressional Budget Office, because the bill allows the Secretary of Commerce to accept and spend donations of funds for estuarine reserve projects, enactment of this bill could increase government receipts and direct spending, but `any additional receipts and resulting direct spending would be minimal and largely offsetting.'

3. Government Reform Oversight Findings. Under clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, the Committee has received no report of oversight findings and recommendations from the Committee on Government Reform on this bill.

4. Congressional Budget Office Cost Estimate. Under clause 3(c)(3) of rule XIII of the Rules of the House of Representatives and section 403 of the Congressional Budget Act of 1974, the Committee has received the following cost estimate for this bill from the Director of the Congressional Budget Office:

U.S. Congress,

Congressional Budget Office,

Washington, DC, October 21, 1999.

Hon. DON YOUNG,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2669, the Coastal Community Conservation Act of 1999.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contacts are Deborah Reis (for federal costs), and Shelley Finlayson (for the state and local impact).

Sincerely,

Barry B. Anderson

(For Dan L. Crippen, Director).

Enclosure.

H.R. 2669--Coastal Community Conservation Act of 1999

Summary: H.R. 2669 would amend the Coastal Zone Management Act of 1972, which governs federal and state environmental management of coastal areas. The bill would extend the authorization of appropriations for state grants and other coastal zone management (CZM) programs administered by the National oceanic and Atmospheric Administration (NOAA). H.R. 2669 would authorize appropriations totaling about $115 million for fiscal year 2000 and $620 million over the 2000-2004 period. Roughly half of each year's authorization would be for funding of existing programs that received appropriations of about $58 million in 1999.

Assuming appropriation of the authorized amounts, CBO estimates that the federal government would spend about $20 million in fiscal year 2000 and a total of $450 million over the 2000-2004 period on programs authorized by H.R. 2669. (About $170 million would be spend after fiscal year 2004.) Enacting the bill could increase governmental receipts and direct spending; therefore, pay-as-you-go procedures would apply. CBO estimates, however, that any additional receipts and resulting direct spending would be minimal and largely offsetting.

H.R. 2669 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA). Any costs to state governments would be the result of complying with grant conditions.

Estimated cost to the Federal Government; The estimated budgetary impact of H.R. 2669 is shown in the following table. The costs of this legislation fall within budget function 300 (natural resources and environment). 



------------------------------------------------------------------------------------------------


                                  By fiscal years, in millions of dollars--                     


                                                                       2000 2001 2002 2003 2004 


------------------------------------------------------------------------------------------------


SPENDING SUBJECT TO APPROPRIATION                                                               


Authorization level 1                                                   115  120  123  128  134 


Estimated outlays                                                        20   75  109  120  126 


------------------------------------------------------------------------------------------------


Basis of estimate

Spending subject to appropriation

For purposes of this estimate, CBO assumes that H.R. 2669 will be enacted early in fiscal year 2000 and that the entire amounts authorized will be appropriated for for each fiscal year. Outlays are based on historical spending patterns of CZM programs.

Title I would authorized appropriations for CZM programs. The legislation would authorize the appropriation of $6.5 million annually over the 2000-2004 period to NOAA for the costs of administering CZM grant programs. Annual amounts between $87 million and $105 million would be authorized for CZM grants over this period. This title also would authorize appropriations totaling $8 million through fiscal year 2002 for new studies to be conducted by NOAA or its grantees.

Title II would authorize annual funding for the National Estuarine Research System, which is also administered by NOAA. Specifically, the bill would authorize the appropriation of between $7 million and $11 million for each of fiscal years 2000 through 2004 for state grants for acquisition and management of estuarine reserves. For this same period, the bill would authorize $12 million a year for new state grants for construction projects at these reserves.

Property rights

Section 110 would prohibit NOAA from requiring any state, as a condition of a grant, to take any action that would constitute a use of nonfederal property for public use without payment of just compensation. CBO estimates that this provision would have no significant budgetary impact. We expect that NOAA would likely refrain from knowingly making conditions for grants that would violate the prohibition. If, however, NOAA did make grant conditions that

are deemed by a court to cause a state to take property, either the condition would be altered or eliminated or the federal government would compensate the owner--all of which could happen under existing law as well.

This section also would prohibit NOAA from taking private property for public use without payment of just compensation. This provision restates current law and would therefore have no impact on the federal budget.

Pay-as-you-go considerations: The Balanced Budget and Emergency Deficit Control Act sets up pay-as-you-go procedures for legislation affecting direct spending or receipts. Title II would authorize NOAA to accept and spend donations of funds from the public for estuarine reserve projects. Such donations are recorded in the budget as governmental receipts, and spending of the gifts would be considered new direct spending. Based on information provided by the agency. CBO estimates that this provision would have a budgetary impact of less than $500,000 annually.

Intergovernmental and private-sector impact: H.R. 2669 contains no intergovernmental or private-sector mandates as defined in UMRA. Much of the funding authorized by the bill would fund grant programs that require matching funds from participating state governments. States would be able to allocate a portion of the grant funds received under the program to qualified local entities to further their coastal management programs. Any costs to state governments from the requirements of this program would be incurred voluntarily.

Previous CBO estimate: On July 1, 1999, CBO transmitted a cost estimate for  H.R. 1243, the National Marine Sanctuaries Enhancement Act of 1999, as ordered reported by the House Committee on Resources on June 9, 1999. These bills would authorize the appropriation of different amounts of money and the cost estimates reflect those differences.

Estimate prepared by: Federal costs: Deborah Reis. Impact on State, local, and tribal governments: Shelley Finlayson.

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

COMPLIANCE WITH PUBLIC LAW 104-4


This bill contains no unfunded mandates.

PREEMPTION OF STATE, LOCAL, OR TRIBAL LAW


This bill is not intended to preempt any State, local, or tribal law.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED




COASTAL ZONE MANAGEMENT ACT OF 1972


TITLE III--MANAGEMENT OF THE COASTAL ZONE


SHORT TITLE




CONGRESSIONAL FINDINGS






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CONGRESSIONAL DECLARATION OF POLICY












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DEFINITIONS








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SUBMITTAL OF STATE PROGRAM FOR APPROVAL




ADMINISTRATIVE GRANTS






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 [Struck out->][ RESOURCE MANAGEMENT IMPROVEMENT GRANTS ][<-Struck out]














COASTAL COMMUNITY CONSERVATION GRANTS










































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COORDINATION AND COOPERATION












State's approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the  [Struck out->][ state ][<-Struck out]  State or its designated agency a copy of the certification, with all necessary information and data. Each coastal  [Struck out->][ state ][<-Struck out]  State shall establish procedures for public notice in the case of all such certifications and, to the extent it deems appropriate, procedures for public hearings in connection therewith. At the earliest practicable time, the  [Struck out->][ state ][<-Struck out]  State or its designated agency shall notify the Federal agency concerned that the  [Struck out->][ state ][<-Struck out]  State concurs with or objects to the applicant's certification. If the  [Struck out->][ state ][<-Struck out]  State or its designated agency fails to furnish the required notification within six months after receipt of its copy of the applicant's certification, the  [Struck out->][ state's ][<-Struck out]  State's concurrence with the certification shall be conclusively presumed. No license or permit shall be granted by the Federal agency until the  [Struck out->][ state ][<-Struck out]  State or its designated agency has concurred with the applicant's certification or until, by the  [Struck out->][ state's ][<-Struck out]  State's failure to act, the concurrence is conclusively presumed, unless the Secretary, on his own initiative or upon appeal by the applicant, finds, after providing a reasonable opportunity for detailed comments from the Federal agency involved and from the  [Struck out->][ state ][<-Struck out]  State, that the activity is consistent with the objectives of this title or is otherwise necessary in the interest of national security.

















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control and air pollution control requirements applicable to such program.







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COASTAL ZONE MANAGEMENT FUND










































COASTAL ZONE ENHANCEMENT GRANTS






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Secretary under subsection (d). The Secretary shall ensure that funding decisions under this section take into consideration the fiscal and technical needs of proposing States and the overall merit of each proposal in terms of benefits to the public.





















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REVIEW OF PERFORMANCE














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WALTER B. JONES EXCELLENCE IN COASTAL ZONE MANAGEMENT AWARDS


















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NATIONAL ESTUARINE RESEARCH RESERVE SYSTEM


























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COASTAL ZONE MANAGEMENT REPORT




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RULES AND REGULATIONS




AUTHORIZATION OF APPROPRIATIONS




















































































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SEC. 320. PROTECTION OF PRIVATE PROPERTY.








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SECTION 2 OF THE COASTAL ZONE PROTECTION ACT OF 1996


SEC. 2. FINANCIAL ASSISTANCE FOR DEVELOPMENT OF STATE COASTAL PROGRAMS.
















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DISSENTING VIEWS


As ordered reported by the subcommittee on Fisheries Conservation, Wildlife, and Oceans on August 5, 1999, H.R. 2669 provided a straightforward reauthorization of the Coastal Zone Management Act (CZMA). The CZMA is popular with States and--until this year--was noncontroversial in Congress; as recently as 1996, the House voted unanimously to reauthorize the program. Democrats on the Committee on Resources have consistently stated our commitment to pass a clean reauthorization bill this Congress. This position was reiterated in correspondence sent to Chairman Young dated July 26 and September 21 (attached).

During the October 6 Committee on Resources mark-up of the bill, Majority Members offered and prevailed on two amendments--one deleting authorizing language for States to begin implementation of their coastal nonpoint pollution control programs, and a second attaching a sweeping property rights provision that would require payment of compensation for any use of non-Federal land. According to initial analyses by the Department of Commerce, these amendments seriously undermine the integrity of the CZMA. As a result, this bill as amended is extremely controversial and should not become law.

Pollution from diffuse, or nonpoint, sources--from urban streets and parking areas, agriculture, forest harvesting activities, marinas and boating activities, and dam or channel construction and maintenance--has become the number one problem in coastal areas. State programs have been developed--with $22 million in Federal funds--to help address individual State concerns.

Degraded water quality resulting from nonpoint sources of pollution directly impacts fisheries and the habitats that support robust fish populations, swimmers at our beaches and estuaries, and public health. The proportion of valuable shellfish beds that have been closed to harvesting due to coastal pollution increased 40 percent between 1966 and 1990.

This has been a record year for beach closures. Visits to Los Angeles beaches have been cut in half since 1983 because people are worried about water quality and news stories suggest that public concerns are justified. Huntington Beach in Orange County, California--famous among surfers worldwide--was closed for swimming for much of this past summer because of high bacterial counts. Viruses from urban runoff have been discovered in coastal waters between Santa Barbara, California, and the Mexican border, with unknown effects on the people that use the resource.

Nonpoint source pollution from the Mississippi River watershed has contributed to formation of a `dead zone' extending 7000 square miles within the Gulf of Mexico. Similarly, runoff flowing into waters along the U.S. East Coast leads to seasonally low oxygen and sometimes outbreaks of Pfiesteria--a microbe that induces lesions then death in fish and neurological disorders in humans. This Fall, several separate areas along the Florida coastline have been besieged by harmful algal blooms or `red tides,' causing fish kills and eye and respiratory irritation in beachgoers.

The nonpoint pollution language in H.R. 2669 addressed water quality and could have triggered a sequential referral to the Committee on Transportation and Infrastructure. Nonetheless, given the magnitude of the nonpoint pollution problem nationwide, this program has become central to implementation of the Coastal Zone Management Act. Congress authorized the States to develop nonpoint pollution control programs in sec. 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (P.L. 101-508) because an existing nonpoint demonstration program under Section 319 of the Clean Water Act was not meeting the needs of coastal areas. Degraded coastal waters were an acute problem that needed concentrated efforts. This remains true today.

During the markup, the Chairman argued for removal of the nonpoint language not on the basis of substance, but to prevent a referral to the Committee on Transportation and Infrastructure that could indeterminately delay floor consideration. However, the Speaker clearly has authority under the Rules of the House to limit the time under which a second Committee may consider a sequentially referred bill. There was no need to delete the crucial nonpoint source language for this reason.

Ironically, after voting to remove the nonpoint source language, the Committee voted a adopt a property rights language offered by Mr. Pombo that was vigorously opposed by state and local governments, the Clinton Administration, environmental organizations and others, and whose inclusion in a final bill would prevent enactment of this measure. A views letter from the Department of Commerce dated October 6, 1999, declared that the Secretary of Commerce would recommend a Presidential veto should the property rights amendment be adopted.

We oppose Mr. Pombo's property rights amendment on both substantive and procedural grounds. It will have a dramatic impact on implementation of the Coastal Zone Management Act and on application of the 5th Amendment's Takings Clause. The amendment prevents the Secretary of Commerce from requiring State plans to `take any action that would constitute a use of non-Federal property for a public purpose without payment of just compensation.' The word `use' applies to any activity--not merely physical encroachment--on private property. It also lowers the standard from `taking'--which implies substantial economic loss--to every `use.' This language greatly expands the scope of private property rights beyond the protections afforded by the U.S. Constitution.

Taken literally, if grant approval conditions impose any restrictions on non-Federal property, payment of just compensation must occur in every case. The amendment would pre-empt the standards currently applied to the Takings Clause by requiring compensation much more often than the 5th Amendment. The practical effect would be to nullify or inhibit state and local implementation of coastal programs and create disincentives for States to enforce provisions because compensation payments to property owners would quickly exceed the amount of Federal funding received by the State to implement its program.

It is unfortunate that a non-controversial bill to reauthorize a successful and voluntary Federal-State partnership program has become burdened with highly controversial language that jeopardizes its enactment, while simultaneously stripped of the nonpoint source pollution provision that would enable states to address one of the most severe environmental problems confronting coastal zones. We cannot support the legislation in this form, but will vigorously support amendments on the floor to rectify these mistakes by the Committee.

George Miller.

Grace Napolitano.

Rush Holt.

Donna M. Christensen.

Dale E. Kildee.

Peter DeFazio.

Tom Udall.

Patrick J. Kennedy.

Neil Abercrombie.

Joseph Crowley.

Ron Kind.

Eni Faleomavaega.

Carlos Romero Barcelo.

Mark Udall.

Frank Pallone, Jr.

Adam Smith.

Bruce F. Vento.

Robert A. Underwood.

Jay Inslee.

House of Representatives,


Committee on Resources,


Washington, DC, September 21, 1999.


Hon. DON YOUNG,

Chairman, House Committee on Resources, Longworth House Office Building, Washington, DC.

DEAR CHAIRMAN YOUNG: On July 26, 1999, sixty-six Democratic members of the House of Representatives sent a letter to you and Mr. Saxton, urging the Committee to consider legislation to reauthorize the Coastal Zone Management Act (CZMA) during this session of Congress.

We were pleased that on August 5, 1999, Mr. Saxton responded to that request, and the Subcommittee on Fisheries Conservation, Wildlife, and Oceans approved an amended version of H.R. 2669. We support many of the provisions of Mr. Saxton's bill and hope that it will quickly be brought before the full Committee. We are particularly pleased that, as amended, H.R. 2669 authorizes implementation of State coastal nonpoint pollution programs.

Polluted runoff remains the largest unaddressed cause of impaired water quality along our coasts. A quick glance at recent press can attest to the dramatic negative impact runoff has on fisheries, recreation, and human health. The New York Times ran a story last week stating that farm runoff contributed to the largest E. coli outbreak in New York history. Similarly, the Los Angeles Times wrote that the famous surfing mecca--Huntington Beach in Orange County, California--was closed for swimming this summer because of high bacterial counts. Viruses from urban runoff have been discovered in coastal waters between Santa Barbara, California, and the Mexico border with unknown effects on the people that use the resource. Runoff from the Mississippi River watershed may have deprived 7000 square miles within the Gulf of Mexico of the oxygen required to sustain marine life. Fishkills along the U.S. East Coast each summer are also attributed to runoff, resulting in oxygen depletion--or worse--Pfisteria, a microbe causing lesions in fish and neurological disorders in humans.

With 30 percent of our gross national product linked to coastal activities, we can ill afford to ignore the problems caused by nonpoint source pollution. In 1990, Congress had the foresight to direct the States to develop nonpoint pollution control plans. To facilitate implementation of these plans, the States are still waiting for the program to be fully authorized within CZMA. Therefore, with this reauthorization, we must ensure that program funds can be used to improve water quality along our coasts. It would be irresponsible of Congress to ignore this very real threat to our fisheries, to swimmers at our beaches and estuaries, and to public health.

On behalf of our nation's coastal constituencies, we urge you to expedite the Committee's consideration of CZMA reauthorization legislation. We thank you for your serious attention to this request, and we look forward to working with you to move H.R. 2996 through the Committee and bring it before the full House this session.

Sincerely,

Representatives George Miller; Eni Faleomavaega; Neil Abercrombie; Donna Christensen; Joseph Crowley; Peter DeFazio; Rush Holt; Jay Inslee; Patrick Kennedy; Dale Kildee; Ron Kind; Grace Napolitano; Frank Pallone; Owen Pickett; Carlos Romero-Barcelo; Adam Smith; Mark Udall; Tom Udall; Robert Underwood; Bruce Vento.

-

Congress of the United States,


Washington, DC, July 26, 1999.


Hon. DON YOUNG,

Chairman, House Committee on Resources, Longworth House Office Building, Washington, DC.

Hon. JIM SAXTON,

Chairman, House Subcommittee on Fisheries Conservation, Wildlife, and Oceans, O'Neill House Office Building, Washington, DC.

DEAR CHAIRMAN YOUNG AND CHAIRMAN SAXTON: We are writing concerning a matter of critical importance to the coastal districts that we represent. Specifically, we request your leadership in expediting the committee's consideration of Coastal Zone Management Act (CZMA) reauthorization legislation.

Over 60 percent of all Americans live within 50 miles of the ocean or one of the Great Lakes. The population density within the coastal areas that we represent is approximately four times the national average. Since population in these areas is expected to grow an additional 15 percent over the next two decades, we will confront substantial increases in the already considerable demands on our coastal resources. Moreover, sound management of these areas should be of national concern, given the fact that thirty percent of our gross national product can be linked to activities associated with our nation's shorelines.

First enacted in 1972, the CZMA established a comprehensive program to manage the increasingly competitive uses of and impacts on our fragile coasts. It is unique among Federal programs in that it employs a voluntary, flexible framework to effectively coordinate all levels of government--Federal, state, and lcoal--to manage our valuable coastal resources. Today, 34 of 35 eligible states and territories participate in the CZM program--including Alaska and New Jersey--and 32 have implemented federally approved management plans. Successful implementation of management plans, however, depends upon continued availability of funding to sustain Federal and state technical expertise.

As you know, the current CZMA authorization for appropriations expires at the end of fiscal year 1999. As evidenced by testimony heard from witnesses this spring in the Subcommittee on Fisheries Conservation, Wildlife, and Oceans and by Congress' near-unanimous votes for reauthorization of the program only 3 years ago, the CZMA has been both popular and successful. We are concerned that without action by the Committee on Resources, renewal of this statute becomes increasingly unlikely during this session of Congress. On behalf of our coastal constituencies, we urge you to expedite the Committee's consideration of CZMA reauthorization legislation. We thank you for your serious attention to this request, and we look forward to working with you on the timely reauthorization of this very important statute.

Sincerely.

Frank Pallone, Jr.,

Co-Chair, Congressional Coastal Caucus.

George Miller,

Ranking Minority Member, Committee on Resources.

Eni Faleomavaega,

Ranking Minority Member, Subcommittee on Fisheries Conservation, Wildlife, and Oceans.

Also signed by 63 other Representatives.

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The Secretary of Commerce,


Washington, DC, November 10, 1999.


Hon. DENNIS HASTERT,

Speaker of the House of Representatives,

Washington, DC.

DEAR MR. SPEAKER: I am writing to express the Department's views on H.R. 2669, entitled the Coastal Community Conservation Act of 1999, as amended at the House Resources Committee mark-up on October 6, 1999. The Department strongly opposes H.R. 2669, as amended. I would recommend that the President veto the bill if it is presented to him with the property rights amendment.

The Department, therefore, respectfully urges you to pass H.R. 2669, but without the property rights amendment and with the Coastal Nonpoint Pollution Control Program provisions that were removed at the October 6 markup.

The reauthorization of the Coastal Zone Management Act (CZMA) is of great importance to the Department and provides a unique opportunity to guide coastal and ocean resources management in the next century. H.R. 2669 contained important provisions that would help coastal States to address the severe impacts to the coastal zone from polluted runoff and would provide much needed support at the local level to revitalize coastal communities.  These provisions, and the CZMA in general, have the support of the Department, the coastal States, local government groups, and the environmental community, as well as substantial bi-partisan support in Congress. In fact, the CZMA has had strong bi-partisan support for over 27 years and was unanimously reauthorized by the 104th Congress in 1996.

The property rights amendment (introduced by Representative Richard Pombo) would require that in order for States to: (1) qualify for CZMA grants; (2) implement their Federally approved coastal management programs; or (3) use the CZMA Federal consistency requirements, they provide compensation for public `uses' of property under a State's coastal management program, even if those uses do not rise to the level of a taking compensable under the Fifth and Fourteenth Amendments. The so-called Pombo amendment is an attempt to impede State and local government land use management and zoning by establishing the principle that any regulation of private property for public purposes, or `uses,' must be compensated by State and local governments.

The Pombo amendment is not only directed at actions `required' by the Secretary. The effectiveness of the CZMA is dependent on State and local government authority to protect the public's interest in the coastal zone for the benefit of all citizens. For example, State and local CZMA programs are effectively saving lives and property by protecting the coastal wetlands, beaches and dunes that are necessary for flood control, reducing polluted runoff, erosion control, storm protection, and sustaining the viability of commercial and recreational fisheries.

To implement the CZMA, States develop Coastal Management Programs (CMPs) which are approved by the Secretary. The State CMPs contain State and local laws and other authorities. While participation in the national CZMA program is voluntary, once a State CMP is approved, to obtain CZMA funds and other CZMA benefits, States are required to implement their approved CMPs. If States do not implement the CMPs as approved, the Secretary may impose financial or program sanctions. Thus, the requirement for compensation under the Pombo amendment would apply to all State and local government actions taken pursuant to a State's CMP. The Pombo amendment would prevent States and local government from protecting the public's interest through zoning and other laws unless they pay each landowner for every land use and zoning decision, or refuse to participate in the CZMA.

The Pombo amendment would, as a result and for all practical purposes, render the national and State CZMA programs non-existent and ineffective. Further, the amendment would subject the Department and the States to endless litigation and would place an enormous financial burden on the States, local governments, and the Federal Government. If this amendment is adopted, there would effectively no longer be a coastal management program in the United States as envisioned in the CZMA.

We also continue to note that section 109(b) imposes a requirement on the Executive Branch that violates the Recommendations Clause of the Constitution. See U.S. Const., Art. II, Sec. 3. The Clause precludes Congress from either requiring the Executive Branch to make, or prohibiting the Executive Branch from making, legislative recommendations to Congress. The Department therefore recommends that section 109(b) be amended by inserting the words: `, if any,' after the words `House of Representatives draft legislation'.

For similar reasons, which we understand are developed in more detail in a letter that the Department of Justice is submitting on H.R. 2669, the Department also recommends that section 109(a) be amended to clarify that Congress does not intend to compel the Secretary of Commerce to file a report containing policy recommendations in addition to technical information. Specifically, we suggest that the first sentence of section 109(a) be revised to require the Secretary of Commerce to submit a report that `evaluates the possibility of using a common set of measurable outcome indicators to evaluate the effectiveness of State coastal zone management programs in achieving the coastal management objectives specified in section 303(2)(A) through (J) of the Coastal Zone Management Act of 1972 (16 U.S.C. 1452(A)-(J)), and, if the Secretary deems it appropriate, to recommend such a set of outcome indicators.'

The Department also strongly recommends that H.R. 2669 section 107(e), Restriction on Use of Amounts for Program, Administrative or Overhead Costs, be deleted. Section 107(e) states that except for funds appropriated under CZMA section 318(a)(4), amounts appropriated shall be available only for grants to States and shall not be available for other programs, administrative or overhead costs. However, CZMA section 318(a)(4), as revised by H.R. 2669 section 107(a), authorizes only $6.5 million for not only Walter B. Jones Awards for accomplishments in the field of coastal zone management (as proposed by H.R. 2669 section 105 amending CZMA section 314), but also for expenses incidental to the administration of the CZMA.

This authorization for expenses incidental to the administration of the CZMA will only cover personnel and associated operational costs such as travel, supplies, equipment, etc. directly related to administration of the State coastal management program as well as the National Estuarine Research Reserve System. It does not cover other shared National Oceanic and Atmospheric Administration (NOAA) costs, such as grants administration, legal counsel, security, etc., that are just as necessary to support an effective program, but are more efficiently provided through a centralized source. When these corporate costs rise faster than can be supported through NOAA's administrative line item, they must be paid for somehow, and the most equitable way is by the programs that they support.

The restriction as proposed in section 107(e) of H.R. 2669 would severely hamper the flexibility required to equitably meet these necessary costs. The Department suggests that a sufficient amount of budget authority be added to the amount in CZMA subsection 318(a)(4) to cover these costs in future years. This would allow the entire amount of the section 306 grants to be awarded to the States, while still allowing NOAA to meet its necessary expenses.

The Department also notes that the total authorization levels in H.R. 2669 section 107 should be amended to conform to the President's fiscal year 2000 budget request.

The Office of Management and Budget has advised the Department that there is no objection to the submission of this letter to the Congress from the standpoint of the Administration's program.

Sincerely,

WILLIAM M. DALEY.

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U.S. Environmental Protection Agency,


Washington, DC, November 4, 1999.


Hon. J. DENNIS HASTERT,

Speaker of the House of Representatives,

Washington, DC

DEAR MR. SPEAKER: This letter provides you the Environmental Protection Agency's views on H.R. 2669, entitled the Coastal Community Conservation Act of 1999, to reauthorize the Coastal Zone Management Act of 1972 (CZMA). Although legislation to reauthorize and strengthen the CZMA would be of tremendous value, I believe that the bill as amended in the Committee on Resources would be a serious step backward for efforts to protect coastal waters. I would recommend that the President veto this legislation if it is enacted with the `takings' amendment.

By 2010, nearly one-half of the population in the United States will live in coastal regions that make up only 10 percent our country's land area. The CZMA has been, and continues to be, essential to protecting coastal waters and estuaries. Coastal zone management programs complement and enhance the water quality and wetlands protection programs that  EPA implements under the Clean Water Act. A strong and effective CZMA is essential to continued progress in reducing water pollution and restoring the health of coastal waters.

I am especially concerned with the amendment offered by Congressman Pombo, and approved by the Committee. The amendment could be interpreted to require that coastal States, in order to obtain the benefits of participation in the coastal zone management program, adhere to an extremely broad requirement for compensation of coastal property owners who comply with coastal protection requirements. The benefits of participation in the CZMA program include federal funds, and a requirement that federal agencies comply with the provisions of State plans. The Administration recognizes the constitutional obligation to provide governmental compensation for `takings' consistent with current law and judicial decisions. The amendment approved by the Committee, however, could be interpreted to go far beyond constitutional requirements and thus could serve to undermine the current balance between the property rights of individuals and the rights of society more generally to promote the common good. Protecting the unique qualities of coastal areas and preventing impairment of our coastal waters are widely recognized as important goals. Enactment of the `takings' amendment could dramatically reduce the effectiveness of CZMA programs and put coastal waters at serious risk of degradation.

In addition, H.R. 2669 as passed by the Committee removes authorization for funding for Section 6217, the Coastal Nonpoint Pollution Reduction Program, that was requested by the Administration. Currently, 29 coastal states and territories have conditionally approved coastal nonpoint source control programs. These programs are a critical element of our efforts to restore and protect coastal water quality.

I look forward to working with you to resolve this important matter in a way that will protect our vital coastal waters.

Sincerely,

CAROL M. BROWNER.

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State of California,


Office of the Attorney General,


Sacramento, CA, October 29, 1999.


Re Pombo amendment to H.R. 2669 (Reauthorization of Coastal Zone Management Act).

CALIFORNIA CONGRESSIONAL DELEGATION,

U.S. Capitol,

Washington, DC.

DEAR MEMBERS OF THE CALIFORNIA DELEGATION: On behalf of the California Coastal Commission and in my capacity as Attorney General of the State of California, I write to express our strong opposition to amendments to H.R. 2669 which the House Resources Committee adopted at its October 6, 1999, markup of the bill. H.R. 2669 provides for the reauthorization of the Federal Coastal Zone Management Act (`CZMA'), and in general we are in support of this reauthorization. However, the Resources Committee amended H.R. 2669 to eliminate provisions regarding non-point source pollution control and water quality and to add a provision sponsored by Representative Pombo regarding restrictions on the use of private property. While we disagree with the deletion of the pollution and water quality provisions as a matter of policy, I write to specifically explain the basis for our objections to the proposed private property use amendment.

As amended, H.R. 2669 would prevent the Secretary of Commerce from requiring a State `as a condition of any grant of funds under this title or the approval of a State plan under section 306, to take any action that would constitute a use of non-Federal property for a public purpose without payment of just compensation.' We understand that Representative Pombo has asserted this amendment would ensure that the states would respect private property rights by compensating owners for restrictions placed on the use of their property. This amendment represents an unwarranted federal intrusion into state land use regulation. As explained in greater detail below, it would greatly increase the exposure of coastal states to lawsuits for inverse condemnation, would seriously inhibit coastal planning and regulation, and represents an immense departure from both established `takings' jurisprudence and the very purpose and intent of the CZMA. For these reasons and the reasons stated below, we urge the House of Representatives to delete this amendment when the legislation is considered on the House floor. We additionally urge the Senate not to include similar language in its legislation reauthorizing the CZMA.

In enacting the CZMA, Congress found and declared that it is the national policy to preserve, protect, develop and where possible, to restore or enhance the Nation's coastal zone for this and succeeding generations. To this end, Congress has encouraged and assisted the states in the development of coastal management programs which regulate coastal property, including private property. These coastal management programs serve a vital purpose. They insure protection of the Nation's coasts for tourism, commerce, fisheries, recreation, and resource management. Our coasts are a major economic engine, providing tourist dollars, jobs, port-related commerce and coastal industry. In the CZMA, Congress created a federal and state partnership for management of our coastal resources and coastal property. This partnership is now in serious jeopardy because of the Pombo amendment.

Current takings jurisprudence holds that government may not restrict all reasonable economic use of property unless either background principles of state property law would not allow the proposed use or the proposed use would constitute a nuisance. (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003.) Government may, however, impose restrictions on the use of property. These restrictions may be in the form of conditions requiring exactions of property or fees where there is a sufficient nexus between the impacts of the project and the condition sought to be imposed and where the condition would further legitimate state interests. (Nollan v. California Coastal Commission (1987) 483 U.S. 825.) Further, such conditions must be roughly proportional to the impacts of the project. (Dolan v. City of Tigard (1994) 512 U.S. 374.) Aside from such exactions, the United States Supreme Court never has found that a mere restriction on the use of property alone for a public purpose would constitute a taking. To the contrary, long established case law holds that restrictions on the use of property for a public purpose are valid where the property otherwise retains a reasonable use. For example, restrictions on aesthetics, such as landscaping requirements and limitations on building color, set back requirements, prohibitions on the filling of wetlands or other sensitive resources, and similar restrictions which serve a public purpose and still allow a use of the private property have all been found to be legitimate and to pass constitutional muster. (Euclid v. Amber Realty (1926) 272 U.S. 365; Concrete Pipe & Prods. v. Const. Laborers Pension Trust (1993) 508 U.S. 624; United States v. Riverside Bayview Homes (1985) 474 U.S. 121.) Such regulations are intended to protect communities and the quality of life enjoyed by their inhabitants as well as the Nation's resources, and as such they benefit all property owners.

The amendment goes too far, and it is unnecessary. As Representative Pombo interprets his amendment, it imposes far greater restrictions on government regulation of private property than the Takings Clause of the Constitution because it would require compensation for all restrictions on the use of private property. As noted above, the Supreme Court has never interpreted the Takings Clause to require compensation in this manner. Moreover, the states already must conform their regulatory activities to the Takings Clause of the Constitution, as interpreted and applied by the Supreme Court. No justification has been provided to show why it is necessary for Congress to impose restrictions on the states which go beyond the Supreme Court's Takings Clause jurisprudence.

At a minimum, the amendment will engender confusion because its bounds are not at all clear. While an expansive interpretation of the amendment has been asserted, the actual language might be read in a more narrow fashion. This lack of clarity in the language necessarily creates a huge amount of ambiguity and that ambiguity will generate litigation in which the courts will have to attempt to determine the scope of the language. The states should not be forced to bear the brunt of such confusion or of the costly litigation which will follow especially when the Supreme Court has already provided standards in this area.

This type of legislation also is contrary to accepted principles of federalism. The Pombo amendment attempts to move beyond accepted constitutional restrictions to dictate or control the states' ability to regulate coastal property within  their borders. This federal intrusion into the purview of the states should not be authorized. The federal-state partnership long fostered by the CZMA should be continued without this unwarranted intrusion into states' rights.

We strongly support the CZMA and the cooperative relationship between the federal government and the states which it has fostered. The Pombo amendment places both the CZMA and that cooperative relationship at risk. Thus, we urge the California members of the House of Representatives to do all that they can to insure that the amendment is removed from H.R. 2669. We further urge Senators Feinstein and Boxer to do all that they can to insure that the Senate version of CZMA reauthorization does not include the proposed Pombo language.

Sincerely,

Bill Lockyer,

Attorney General.

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Coastal States Organization,


Washington, DC, October 5, 1999.


Hon. GEORGE MILLER,

Committee on Resources, House of Representatives,

Washington, DC.

DEAR REPRESENTATIVE MILLER: On Wednesday, October 6th, the House Resources Committee is scheduled to consider H.R. 2669, the Coastal Community Conservation Act of 1999. This bill would amend and reauthorize the Coastal Zone Management Act of 1972 (CZMA). The CZMA sets forth a federal-state partnership to protect and restore the nation's coastal resources by providing a flexible framework for states to develop programs that support a wide range of environmental and economic objectives. The CZMA is unique in providing that states set the priorities consistent with the broad national goals set out in the Act. I urge you to support H.R. 2669, report the bill out of the Resources Committee, and urge passage of CZMA reauthorization this year.

States with approved coastal management programs are eligible to receive federal assistance, matched by the states, to help implement and enhance their CZM programs. In addition, Federal activities must be consistent with state coastal zone management policies. The CZMA also authorizes the National Estuarine Research System--a network of estuarine areas protected for research, monitoring and environmental education. These programs have been instrumental in assisting coastal states to balance the many competing uses of resources in the coastal zone.

We understand that an amendment may be offered to address protection of private property rights. While coastal Governors believe that government decision-makers should carefully evaluate the effect of their actions on Constitutionally protected private property, they also believe that the interpretation of the so-called `takings' clause of the U.S. Constitution is the province of the Courts. CSO opposes any amendment that would limit or interfere with legitimate state and local government coastal management, land use or regulatory authority, or otherwise undermine the state prerogatives that are the basis of the federal-state CZMA partnership.

Please call me with any questions you may have or further information. Thank you for your consideration.

Sincerely,

Tony MacDonald,

Executive Director.

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California Coastal Commission,


San Francisco, CA, October 28, 1999.


Re Representative Saxton amendments to Federal Coastal Zone Management Act (CZMA) Reauthorization Bill H.R. 2669.

Hon. GEORGE MILLER,

House of Representatives,

Washington, DC.

DEAR CONGRESSMAN MILLER: On behalf of the California Coastal Commission, I respectfully request your support for amendments to be offered by Representative Jim Saxton to H.R. 2669 that would delete two provisions added by the Resources Committee at the request of Representative Pombo.

Specifically, Mr. Saxton's amendment would reinstate vital provisions that help coastal states deal with polluted runoff that is the major cause of ocean water contamination. His amendment would also delete a provision that threatens to cripple state coastal management programs by creating a new cause of action for coastal property owners to sue state and local governments over coastal land use decisions. Since its initial enactment in 1972, the CZMA has achieved a remarkable record of success around the country. Its reauthorization is vital to all coastal states and coastal local governments who have worked closely with our federal partners to protect coastal resources for the benefit of current and future generations. In our view, the unfortunate insertion of the two provisions to H.R. 2669 in Committee has fatally flawed the bill.

Please contact your House Leadership colleagues in support of Representative Saxton's attempts to move the bill to the Floor under an open rule, and then urge your fellow members to support his proposed amendments. If you or your staff have any questions, please give me a call.

Sincerely,

Peter M. Douglas,

Executive Director.

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National Association of Counties,


October 5, 1999.


DEAR REPRESENTATIVE MILLER: The National Association of Counties (NACo) would like to express our views concerning an amendment to the Coastal Zone Management Act (CZMA) that may come before the Committee on Resources tomorrow. NACo strongly supports HR 2669 that reauthorizes the CZMA through FY 2005. We particularly support the new Coastal Community Conservation Grants program that would provide additional revenues to local governments for managing coastal areas. Because of the CZMA, county governments in coastal areas have been able to manage natural resources, protect public health and safety, and guide sustainable growth and development.

We understand that passage of the bill by the Committee on Resources may be threatened by the introduction of a takings/private property rights amendment. The amendment would prohibit the CZMA from placing `restrictions on commercial or private use of private property' within a coastal area. This language is extremely broad, potentially barring a local government receiving a coastal grant from applying a local ordinance or safety regulation on any type of private property for any reason.

Such an amendment would, we believe, prevent slates, counties and other local governments from controlling damaging pollutants from entering estuaries through stormwater runoff, providing public access to coastal waters and controlling overdevelopment in delicate tidal plains and flood-prone areas. It could also prevent local governments from protecting public safety, for example by prohibiting a county from temporarily barring access to a private beach or commercial area while dangerous marine debris from a hurricane is removed.

We urge you to please make every effort to attend the Committee markup of HR 2669, resist any property rights amendments to the bill, and allow the CZMA to continue to protect our coastal communities.

Very truly yours,

Larry E. Naake,

Executive Director.

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-CENTER FOR MARINE CONSERVATION, AMERICAN OCEANS CAMPAIGN, CLEAN OCEAN ACTION, COAST ALLIANCE, CHESAPEAKE BAY FOUNDATION, NATURAL RESOURCES DEFENSE COUNCIL,

September 1, 1999.


Hon. GEORGE MILLER,

Ranking Minority Member, Committee on Resources, House of Representatives, Washington, DC.

DEAR REPRESENTATIVE MILLER: The House Resources Committee will soon be taking up Chairman Saxon's bill to reauthorize the Coastal Zone Management Act (H.R. 2669). We urge you to approve this bill and send it to the House floor as soon as possible to help communities develop local solutions to the nation's leading cause of water pollution--polluted runoff.

According to data from the states, polluted runoff--or nonpoint source pollution--accounts for more than 60% of water quality impairment including runoff from crops, grazing and feedlots.

A recent three-part series in the Washington Post (enclosed) notes that more than 600 million chickens are raised along Eastern Shore of the Chesapeake Bay, turning out more than 750,000 tons of manure--more waste than produced by a city of 4 million people! This waste contains high concentrations of nitrogen and phosphorous and is washed into the Chesapeake Bay, depleting oxygen levels, causing algal blooms, killing seagrasses, fish and shellfish, and ruining local economies. Scientists also suggest that a toxic microbe called Pfiesteria, which makes people sick and kills hundreds of thousands of fish, feeds on the excess nitrogen and phosphorous produced from the overabundant chicken waste.

Some states are taking action to prevent the over-application of chicken manure, and reduce the quantities of nitrogen and phosphorous entering stressed water bodies. But they need help. It is time for the federal government to step up to the plate.

Chairman Saxton's CZMA reauthorization bill (H.R. 2669) addresses the economic and environmental problems caused by polluted runoff. It incorporates state coastal nonpoint pollution control programs into the CZMA, makes such programs eligible for funding under the CZMA, and ensures that funds are dedicated to implementing nonpoint control programs.

Please take a moment to review the enclosed articles on the number one threat to our nation's water quality, and support H.R. 2669 to reauthorize the CZMA and the coastal nonpoint pollution control program. If you have any questions you can contact the following persons: Tim Eichenberg, Center for Marine Conservation; Kelli McGee, American Oceans Campaign; Jackie Savitz, Coast Alliance.

Thank you for your support.

Sincerely,

Tim Eichenberg, Center for Marine Conservation, Washington, DC; Jackie Savitz, Coastal Alliance, Washington, DC; Sarah Chasis, Natural Resources Defense Council, New York, NY; Barbara Jeanne Polo, American Oceans Campaign, Washington, DC; Cindy Zipf, Clean Ocean Action, Sandy Hook, NJ; Dr. Michael Hirshfield, Chesapeake Bay Foundation, Annapolis, MD.

A P P E N D I C E S


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