Legal Overview of the Galveston Bay Estuary Program, A

A LEGAL OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM

I. INTRODUCTION ...... 173 II. THE SIGNIFICANCE OF ESTUARIES ...... 174 III. THE NATIONAL ESTUARY PROGRAM (33 U.S.C. § 1330) ... 177 IV. THE SIGNIFICANCE OF GALVESTON BAY ...... 181 V. THE GALVESTON BAY NATIONAL ESTUARY PROGRAM .... 183 A. Administrative Development ...... 183 B. Joint Administration by the TNRCC & GLO ...... 184 VI. AN OVERVIEW OF THE GALVESTON BAY PLAN...... 186 VII. ENFORCEABILITY ...... 189 A. FederalConsistency for NationalEstuary Programs .. 192 B. State Consistency Under the Texas CoastalManagement Program ...... 193 C. Federal Consistency Under the CoastalZone Management A ct ...... 196 VIII. CONCLUSION ...... 197 APPENDIX A: AGENCY RESPONSIBILITIES ...... 199 APPENDIX B: APPLICABLE ACRONYMS ...... 206

I. INTRODUCTION

Whether you view Galveston Bay from the deck of a fishing boat or the offices of one of the many industrial plants that line its shores, one cannot help but notice how the bay is in trouble. From the trash ridden shorelines to the smell in the air, there are numerous signs that the bay is deteriorating. Galveston Bay is an important and rich provider of natural resources to the citizens of Texas. Over the years, these precious resources have been depleted due to overutilization and a general lack of respect by the human environment. While many individuals may feel discouraged by the above statements, there is reason to hope that recovery is promising for the future. The Galveston Bay National Estuary Program, a partnership program between the Texas Natural Resource Conservation Commission and the Texas General Land Office, has been developed with the purpose of improving "water quality and enhanc[ing] living resources in Galveston Bay."' This article is designed to provide insight into The Galveston Bay Plan, with a special focus on the issue of enforceability. To develop a working knowledge of the importance of The Plan, we must begin our discussion with the significance of estuaries in general.

i. The Galveston Bay Estuary Program: About the Program, http://gbep.tamug.tamu.edu/ about.htm (last visited Dec. 27, 1999) [hereinafter GBEP]. 174 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173

Estuaries provide many important social and economic benefits to the communities located along its shores. In addition, estuaries are essential to the ecological livelihood of many living creatures who depend on the resources an estuary provides. The next important area to understand is the legal development of the Galveston Bay National Estuary Program. This program is part of the National Estuary Program established by Section 320 of the Water Quality Act of 1987, authorizing the establishment of Management Conferences "to develop Comprehensive Conservation and Management Plans (CCMPs) for estuaries of national significance that are threatened by pollution, development or overuse."2 The Galveston Bay Plan, a comprehensive management plan itself, was designed to tackle issues relating specifically to Galveston Bay with the overall goal of restoring and protecting the bay's valuable natural resources. The final and most important piece of the article deals with the issue of enforceability. The chief tool used to enforce the goals of the bay is consistency review. In general, there are three types of consistency review applicable to The Galveston Bay Plan, which include (1) federal consistency for National Estuary Programs; (2) state consistency under the Texas Coastal Management Program; and (3) federal consistency under the federal Coastal Zone Management Act. These types of consistency review require administrative agencies to take into account the issues and goals of The Plan when allocating resources to different projects and activities located or affecting the Galveston Bay estuarine area. Overall, this article is designed for the practicing attorney to take into account The Galveston Bay Plan when advising clients on issues affecting the estuarine area. The article further provides the necessary insight into the development of The Plan, allowing practitioners to take into consideration the legal effects of advising clients on such issues that affect the bay, including land development projects and permitting decisions.

II. The Significance of Estuaries

An estuary is a body of water that serves as a vital habitat for many different species. Estuaries are found along the coastline in areas where fresh water and salt water mix together.' These vital habitats come in all shapes and sizes and are recognized by most individuals as bays, harbors, channels, inlets, sloughs or sounds.4 An estuary is a very special ecosystem supporting a large, unique community of plants and animals. Estuaries encompass one of the

2. Id. 3. 33 U.S.C. 1254(n)(4) (1995). 4. National Estuary Program: About Estuaries, http://www.epa.gov/owow/estuaries/about.htm (last visited Dee. 27, 1999) [hereinafter EPA]. 2001] OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM 175 most productive environments on earth, creating more organic matter each year than a comparable sized forest or grassland area.' A multiple number of habitat types are found in and around estuaries, including but not limited to, "shallow open waters, freshwater and saltwater marshes, sandy beaches, mud and sand flats, rocky shores, oyster reefs, mangrove forests, river deltas, tidal pools, sea grass and kelp beds, and wooded swamps."6 Further, the productivity of the estuarine community produces and attracts a diverse number of wildlife creatures, featuring mammals, birds, fish, reptiles, shellfish, and plants all interacting within complex food webs.7 Estuaries are critical for the survival of many species which depend on the estuarine habitats for their everyday life needs. Among the type of uses an estuary provides, the following are considered the most important:

HABITAT: Tens of thousands of birds, mammals, fish, and other wildlife depend on estuaries. NURSERY: Many marine organisms, most commercially valuable fish species included, depend on estuaries at some point during their development. PRODUCTIVITY: A healthy, untended estuary produces from four to ten times the weight of organic matter produced by a cultivated corn field of the same size. WATER FILTRATION: Water draining off the uplands carries a load of sediments and nutrients. As the water flows through salt marsh peat and the dense mesh of marsh grass blades, much of the sediment and nutrient load is filtered out. This filtration process creates cleaner and clearer water. FLOOD CONTROL: Porous, resilient salt marsh soils and grasses absorb flood waters and dissipate storm surges. Salt marsh dominated estuaries provide natural buffers between the land and the ocean. They protect upland organisms as well as billions of dollars of human real estate.'

Estuarine areas also provide cultural and sociological benefits to the communities they embrace.9 They offer ample opportunity and provide an outlet for recreation, science education, and aesthetic pleasures." Boating, swimming, and fishing are just a few of the activities available to individuals living on or near estuarine habitats." Estuaries are often the focal point of local communities, which rely on the estuary as a source of commerce,

5. An Introduction to Estuaries, http://inlet.geol.se.edu/nerrsintro.htmI (last visited Dec. 28, 1999) [hereinafter Intro to Estuaries]. 6. EPA, supra note 4. 7. Id. 8. Intro to Estuaries, supra note 5. 9. EPA, supra note 4. 10. Id. 11. Id. 176 TEXAS TECH JOURNAL OF TEXASADMINISTRATIVE LAW [Vol. 2:173 recreation, celebrations, and traditions." Further, estuaries serve as laboratories to both scientists and students by providing lessons in biology, chemistry, and oceanography. 3 Besides the social and cultural benefits, estuaries provide economic 14 benefits that are extremely valuable to the quality of the human environment. Tourism, commercial fishing, and other activities thrive on an estuary's ability to produce natural resources. 5 These protected coastal waters also support important public infrastructure, "serving as harbors and ports vital for shipping, transportation, and industry. "'' 6 A few specific examples of the economic benefits and social resources estuaries provide include:

[1] Estuaries provide habitat for more than 75% of America's commercial fish catch, and for 80-90% of the recreational fish catch. [2] Nationwide, commercial and recreational fishing, boating, tourism, and other coastal industries provide more than 28 million jobs. Commercial shipping alone employed more than 50,000 people as of January 1997. [3] There are 25,500 recreational facilities along the U.S. coasts-almost 44,000 square miles of outdoor public recreation areas. The average American spends 10 recreational days on the coast each year. In 1993 more than 180 million Americans visited ocean and bay beaches- nearly 70% of the U.S. population. Coastal recreation and tourism generate $8 to $12 billion annually. [4] In just one estuarine system- Massachusetts and Cape Cod Bays- commercial and recreational fishing generate about $240 million per year. In that same estuary, tourism and beach-going generate $1.5 billion per year, and shipping and marinas generate $1.86 billion per year."

Although estuaries are valuable to the American public as sources of employment and recreation, the steady influx of inhabitants to these areas has produced negative effects on the estuaries' value to the ecosystem.'" Currently, over 110 million Americans, about half the U.S. population, live in coastal areas, which include shores of estuarine areas. 9 This influx of people have threatened the integrity of the estuarine ecosystem by having shorelines and marsh areas reconstructed to accommodate housing, transportation, and agriculture needs.2 0 Stresses caused by the overuse of

12. Restore America's Estuaries-Whatis an Estuary, http://www.estuaries.org/estuarywhat.html (last visited Dec. 28, 1999). 13. Intro to Estuaries,supra note 5. 14. EPA,supra note 4. 15. Id. 16. Id. 17. Id. 18. Id. 19. Id.Coastal counties are growing three times faster than counties elsewhere in the nation. 20. Intro to Estuaries,supra note 5. 2001] OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM 177

resources and irresponsible land use activities have lead to a host of "human health and natural resources problems."2' Due to overuse and depletion of estuarine resources, Congress has recognized the importance of protecting estuarine resources for their natural, economic, and aesthetic values.22 As a result, Congress developed the National Estuary Program (NEP) to protect and restore the nation's significant estuaries.23 The NEP is an important community-based tool designed to focus on the protection and conservation of the estuarine ecosystem, which will be discussed in greater detail in the following section.24

III. THE NATIONAL ESTUARY PROGRAM (33 U.S.C. § 1330)

The National Estuary Program was established in 1987 as an amendment to the Clean Water Act with the goal of preserving the nation's most significant estuaries.25 The NEP not only focuses on the estuaries in the program, but also the applicable watershed areas that are important to the overall goals of the program.26 The NEP establishes its goals by looking at a broad number of important issues and assigning local and state governments the majority of the responsibility in implementing and maintaining the program.27 The program goes far beyond the issue of improving water quality by also focusing on maintaining the overall estuarine system, including its "chemical, physical, and biological properties, as well as its economic, recreational, and aesthetic values."2 A NEP is made up of not only representatives from local, state, and national government, but also consists of citizens, educators, and business leaders located in the community. 29 Currently, there are twenty-eight estuarine areas that participate in the NEP and the overall goal of each is to restore and protect the nation's most important estuaries.30

21. EPA, supra note 4. 22. Id. 23. 33 U.S:C. § 1330 (1994 & Supp. 1998). 24. Matthew W. Bowden, An Overview of the National Estuary Program, I I FALL NAT. RESOURCES & ENV'T 35 (1996). 25. National Estaury Program: About the NEP, http://www.epa.gov/owow/estuaries/about.htm (last visited Dec. 27, 1999) [hereinafter NEP]. 26. Bowden, supra note 24, at 35. 27. NEP, supra note 25. 28. Id. 29. Id. 30. Id. The following estuaries participate inthe program: Albemarle-Pamlico Sounds, Barataria- Terrebonne, Bamegat Bay, Buzzards Bay, Casco Bay, Charlotte Harbor, Lower Columbia River Estuary, Corpus Christi Bay, Delaware Estuary, Delaware Inland Bays, Galveston Bay, Indian River Lagoon, Long Island Sound, Maryland Coastal Bays, Massachusetts Bays, Mobile Bay, Morro Bay, Narragansett Bay, New Hampshire Estuaries, New York-New Jersey Harbor, Peconic Bay, Puget Sound, San Francisco Estuary, San Juan Bay, Santa Monica Bay, Sarasota Bay, Tampa Bay, Tillamook Bay.. 178 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LA W [Vol. 2:173

The Environmental Protection Agency (EPA) is the administrative branch of the federal government that manages .the National Estuary Program.3' Although the EPA administers the program, it is up to local and state governments to implement program decisions and activities. 32 As the first step in the process, the governor of a state nominates to the EPA Administrator an estuary which is nationally significant, and then requests a management conference in order to develop a comprehensive management plan for the estuary.3 If and when the nomination is accepted, the EPA will begin the management conference and analyze the conditions and problems of the estuary.34 A management conference usually consists of the following four different committees. 5 First, the Policy Committee is made up of high level EPA representatives, key state and local government personnel, members of business, industry, and environmental groups. 6 The committee sets the overall direction of the conference by setting goals and objectives. It also selects members of the other three committees.37 Second, the Management Committee consists of mid-level personnel from federal, state, and local agencies with responsibilities in agriculture, the environment, land use, fish 3 and wildlife, etc. ' This committee oversees the everyday operations of the conference.39 It defines and ranks the estuary's primary problems and develops management *strategies and detailed plans." Third, the Science/Technical Advisory Committee is made up of professionals in academia, government agencies, and the private sector.41 The advisory group's principal responsibility is to direct and evaluate scientific research and to ensure that the management decisions are based on sound scientific principles.42 This committee collects data, develops new studies, and assists in data management activities.43 Finally, the Citizen Advisory Committee consists of representatives of business, associations, environmental and civic groups, farming and fishing groups, and other concerned citizens." This committee helps inform the public about the work of the management

31. 33 U.S.C. § 1330 (1994). 32. NEP, supra note 25. 33. 33 U.S.C. § 1330(a)(1) (1994). 34. Id. § 1330(a)(2)(A). 35. Bowden, supra note 24, at 36. 36. Id. 37. Id. 38. Id. 39. Id. 40. Id. 41. Id. 42. Id. 43. Id. 44. Id. 2001] OVERVIEW OF THE GALVESTON BAYESTUARYPROGRAM 179 conference and serves as the predominant voice of the stakeholders located in the watershed area."' The duties of the management conference under section 1330(b) of the NEP are as follows:

(1) assess trends in water quality, natural resources, and uses of the estuary; (2) collect, characterize, and assess data on toxics, nutrients, and natural resources within the estuarine zone to identify the causes of environmental problems; (3) develop the relationship between the inplace loads and point and nonpoint loadings of pollutants to the estuarine zone and the potential uses of the zone, water quality, and natural resources; (4) develop a comprehensive conservation and management plan that recommends priority corrective actions and compliance schedules addressing point and nonpoint sources of pollution to restore and maintain the chemical, physical, and biological integrity of the estuary, including restoration and maintenance of water quality, a balanced indigenous population of shellfish, fish and wildlife, and recreational activities in the estuary, and assure that the designated uses of the estuary are protected; (5) develop plans for the coordinated implementation of the plan by the States as well as Federal and local agencies participating in the conference; (6) monitor the effectiveness of actions taken pursuant to the plan; and (7) review all Federal financial assistance programs and Federal development projects in accordance with the requirements of Executive Order 12372, as in effect on September 17, 1983, to determine whether such assistance program or project would be consistent with and further the purposes and 4 6 objectives of the plan prepared under this section.

These steps are defined by the EPA as the "characterization" process.47 These steps must be accomplished relatively quickly as the management conference should not exceed a period of five years.48 Overall, the NEP seeks to balance the competing demands of protecting the important estuarine ecosystems from expanding human activity by developing and promoting solutions that establish long-term ecological health.49 Once the characterization process is completed, the management conference will begin to develop a written plan addressing the environmental problems of the estuary, as well as the economic and social issues facing the estuary." This plan, known as a Comprehensive Conservation and Management Plan (CCMP), determines the priorities of issues and activities, /

45. Id. 46. 33 U.S.C. § 1330(b) (1994). 47. Bowden, supra note 24, at 36. 48. 33 U.S.C. § 1330(e) (1994). 49. Bowden, supra note 24, at 35. 50. Jd. at 36. 180 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173 and serves as a blueprint for the future protection and restoration of the estuary.5 CCMPs are not directly enforceable regulations.5 2 Instead, they serve as a tool for changing existing regulations and establishing new regulations and requirements necessary to accomplish the overall goals of the program.53 The Environmental Protection Agency requires CCMPs to contain five important items.54 First, the plan must include proposed solutions to the estuarine problems identified by the management conference.5 Most of these solutions call for tighter control and more stringent regulations in existing regulatory schemes. 6 Second, the CCMP must establish a plan for implementing the CCMP's specific recommendations.57 This involves coordinating and planning with governmental agencies on the CCMP's goals and generating support for these goals in the private sector.5 Third, financing must be established to determine the various issues and activities prioritized in the CCMP.5 9 Funding a CCMP can be very expensive (millions of dollars) and financing should come from various sources including federal, state, local government, private grants, and the business sector.' At the state and local levels, most of the funding for the CCMP is acquired through tax increases on the public and industry.6 Fourth, the Management Conference must establish a plan for monitoring the effectiveness of the CCMP's initiatives.62 Monitoring is needed to determine the impact of the proposed solutions by the management conference and to make adjustments to actions which are failing to meet the applicable goals.63 Finally, the management conference must develop procedures to review "all federal financial assistance programs and federal development projects to determine their consistency with the CCMP."6 Federal programs that conflict with the CCMP may require modification to comply with the goals established by the management conference committees." After completing the conservation and management plan and providing a period for public review, the administrator has 120 days

51. Comprehensive Conservation and Management Program, http://www.epa.gov/owow/estuaries/ ccmp/index.htm (last visited Dec. 28, 1999). 52. Bowden, supra note 24, at 36. 53. Id. 54. Id.at 37. 55. Id. 56. Id. 57. Id. 58. Id. at 37, 72. 59. Id. at 72. 60. Id. 61. Id. 62. id. 63. Id. 64. Id. 65. Id. 2001] OVERVIEW OF THE GALVESTON BAYESTUARY PROGRAM 181 to approve the plan." The plan must be approved if it meets the legislative requirements of the NEP and the Governor of the estuary area concurs.67 The NEP departs from the traditional command-and-control type environmental legislation by insisting on public input and recommendations from experts in the field on an estuary's problems and issues.6' The NEP is promoted by the EPA as a collective decision-making body made up of the various stakeholders with different rights and responsibilities in relation to the estuarine area.69 Overall, the NEP is a watershed-based management program which develops strategies to address the most serious issues affecting the Nation's estuaries.7" The NEP is an important piece of legislation that allows coastal communities to transfer knowledge and experience to other areas considering participating in the program.7' This should ultimately lead to future programs proceeding more quickly at a reduced cost.

IV. THE SIGNIFICANCE OF GALVESTON BAY

Galveston Bay is a premier Texas resource which ranks high among the most important bay systems in the United States. The bay provides both economic and sociological benefits to the Texas communities it serves. Many of the specific benefits important to the citizens of Texas are economic. There are approximately 110,000 jobs related to Galveston Bay complex, with the bay generating over $4.2 billion in travel-generated dollars related to the watershed area.' The Galveston Bay is also the home of the Port of Houston, which is the second largest seaport in the nation and the eighth largest in the world.74 The Port of Houston generates over $5.5 billion in annual revenues. 75 The bay further serves as a major transportation artery, supporting the Houston Ship Channel, the Intracoastal Waterway, the Port of Galveston, and the Port of Texas City, sites that petrochemical and other industries rely on in their routine business practices.76

66. 33 U.S.C. § 1330(0(1) (1994). 67. Id. 68. Bowden, supranote 24, at 35. Most traditional environmental legislation defines the limits of the action, then insists that these limits be followed. This is the command-and-control approach. 69. Id. at36. 70. Id. at 72. 71. Id. at 35. 72. Id. 73. Water Quality Division: The Galveston Bay Estuary Program, http://www.tnrcc.state.tx.us/ admin/topdoc/gi/236/index.html (last visited Dec. 28, 1999). 74. Id. 75. Id. 76. GALVESTON BAY NATIONAL ESTUARY PROGRAM MANAGEMENT CONFERENCE, THE GALVESTON BAY PLAN: THE COMPREHENSIVE CONSERVATION AND MANAGEMENT PLAN FOR THE GALVESTON BAY ECOSYSTEM: A PROJECT OF THE GALVESTON BAY NATIONAL ESTUARY PROGRAM (1995) [hereinafter The Plan]. 182 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173

Galveston Bay is a major resource for the commercial fishing and manufacturing industries. The bay accounts for one-third of the commercial fishing industry located in the state with annual revenue over $200 million." Further, "[m]ore than ninety percent of the commercially harvested seafood species in the Gulf of Mexico and its bay systems require estuarine environments like Galveston Bay for one or more of their life stages."78 In the area of manufacturing, the Galveston Bay complex hosts a number of different industries. In 1996, manufacturing contributions to the Gross Area Product in Harris and adjoining counties totaled $25.7 billion, with the Houston-Gulf Coast area accounting "for almost half of the nation's basic petrochemicals manufacturing capacity and over one-third of the nation's petroleum refining."79 Besides playing an important economic role, the bay provides resources necessary to support the environment." The Galveston Bay area serves as an pivotal environmental habitat for many species including "colonial waterbirds, shorebirds, dolphins, sea turtles, alligators, and numerous other species."'" In the area of wastewater discharge, the bay serves as a receiving body for both point and non-point source pollutant discharges.82 There are over fourteen hundred point source discharges, both from industries and municipalities, located along the Galveston Bay complex.83 These account for over sixty percent of all the wastewater discharge in the state of Texas.' The bay has many other important uses, including "cooling water, sailing, motorboat cruising, sightseeing, and oil and gas production."85 For example, there are over 10,000 recreational boats registered in the Galveston Bay area, making it the third largest concentration of recreational boats in the United States.86 Also more than half the recreational fishing expenditures in the state, over $600 million annually, are derived from Galveston Bay. 7 Galveston Bay is a beautiful and precious natural resource to the citizens of Texas. The bay is an estuary, defined by D.W. Pritchard as "a semi- enclosed body of water having a free connection with the open sea and within which seawater is diluted measurably by freshwater from land drainage."88 The estuarine habitat is one that is constantly changing because of the unique

77. Water Quality Division: The Galveston Bay Estuary Program, supra note 73. 78. Id. 79. Id. 80. The Plan,supra note 76, at 2. 81. Id. 82. Id. 83. Id. 84. Id. 85. Id. 86. Water Quality Division: The Galveston Bay Estuary Program, supra note 73. 87. Id. 88. The Plan, supra note 76, at 5. 20011 OVERVIEW OF THE GALVESTON BAY ESTUARYPROGRAM 183 and different physical forces that affect the area.89 Because of this, species living in estuaries have the uncanny ability to adapt to tremendous fluctuations in their aquatic environment.9" In fact, the estuary as a whole is able to sustain many detrimental activities caused by human effects.9' Yet, in spite of the estuary's unique ability to overcome the impact of society, there does exist a breaking point.92 Galveston Bay's resources have now exceeded this breaking point and the problems must now be addressed by participation in the National Estuary Program. In general, these problems include habitat destruction and its effect on wildlife, competing human uses of the bay, and water and sediment quality problems.93 It is imperative that the problems and issues associated with Galveston Bay be addressed, and that the resources of the bay be protected and restored for future generations. These are just of few of the reasons for developing the CCMP known as The Galveston Bay Plan.

V. THE GALVESTON BAY NATIONAL ESTUARY PROGRAM

A. Administrative Development

In 1989, the Galveston Bay Estuary Program (GBEP) was established as part of the National Estuary Program when the bay was labeled a nationally significant estuary.' The Texas Legislature recognized the importance of the Galveston Bay estuary area by amending Chapter five of the Water Code to add Subchapter M entitled, Estuary Management Plans.9" The legislature made a finding of benefit and public purpose by recognizing

the importance of implementing estuary management plans by protecting and improving water quality and restoring estuarine habitat that makes the bays and estuaries productive, protecting the economies of those areas, and continuing the involvement of the public and the many interests who use and appreciate the estuarine resources of Texas. State and local government participation in estuary programs to protect natural resources serves a public use and benefit. The state and the implementing agencies recognize the prerogatives of local governments and the sanctity of private property rights. No action by an estuary program is intended to usurp the authority of any local government. A local government's participation in or withdrawal from an estuary program is at the sole discretion of the local government and is

89. Id. 90. Id. 91. Id. 92. Id.at 6. 93. Id.at 7. 94. GBEP, supra note 1. 95. The Plan, supra note 76, at 7. 184 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173

subject only to the local government's obligation to complete any financial commitment it has made. 96

Further, the act provides the necessary guidelines to qualify the management plan for valuable state funding.9" The legislation establishes a two-part test for eligibility,,which consists of the following:

(1) the estuary involved has been designated jointly by the governor and the United States Environmental Protection Agency as an estuary of national significance in accordance with section 320 of the Federal Water Pollution Control Act (cite omitted), as amended; and (2) the comprehensive conservation and management plan for the estuary involved, together with the accompanying implementation plan, has been completed and approved.98

This test was ultimately met, and during the 1995 legislative session, $750,000 was approved to implement The Galveston Bay Plan."

B. Joint Administration by the TNRCC & GLO

The Galveston Bay Estuary Program is a program administered jointly by the Texas Natural Resource Conservation Commission (TNRCC) and Texas General Land Office (GLO) pursuant to an adopted Memorandum of Understanding (MOU) between the two agencies."° The memorandum states that the TNRCC and the GLO, working in consultation with the Galveston Bay Council, "shall not agree to any program, policy or expenditure of resources without determining that the program, policy or expenditure is cost effective and an appropriate method for ensuring the restoration, maintenance or enhancement of the natural resources in and around Galveston Bay."'0' The MOU calls for each agency to appoint representatives to coordinate and implement decisions related to the GBEP. °2 The MOU further allows for alternative dispute resolution tactics for disagreements between agency viewpoints. 03 In addition, the MOU may be amended or terminated at any time by either agency with proper notice.'"

96. Tex. SB 708, 76th Leg., R.S., 1999 Tex. Gen. Laws 1189. 97. Id. § 5.558. 98. Id. 99. GBEP, supra note 1. 100. 30 TEX. ADMIN. CODE § 7.105(a)(8) (1998) (Natural Res. Comm'n). Authority for this section arises from the provisions of this Chapter 7 issued under the Tex. Water Code, §§ 5.103, 5.105, 13.041, 26.011,27.019, 32.009, 33.007, and 34.006; and Tex. Health & Safety Code Ann. §§ 341.002, 341.031, 361.011, 361.017, 361.024, 366.012, 382.017, 401.011, 401.051, and 401.412. 101. 30 TEX. ADMIN. CODE § 7.105(b)(2) (1998). 102. Id. § 7.105(b)(3). 103. Id. § 7.105(c). 104. Id. § 7.105(d)(2)(3). 2001] OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM 185

The TNRCC was labeled as the key implementing commission of The Galveston Bay Plan in the management conference.' 5 The TNRCC is responsible for the management of Texas marine life and was a clear choice to serve as sponsor of The Galveston Bay Plan."° The TNRCC specifically created the Galveston Bay Program (GBP), which consists of a staff of nine individuals who oversee activities related to the plan and whose responsibilities include the following:

(I) Acquiring, managing, and dispersing funds to implement The Plan; (2) Coordinating activities of the Plan Partners; (3) Reviewing federal projects in an open process for consistency with The Plan; (4) Providing for coordination with the Texas Coastal Management Program (CMP) and the Coastal Coordination Council; (5) Tracking and monitoring implementation of specific actions by The Plan's partners; (6) Identifying and communicating bay improvements to agencies, stakeholders, and the public, and redirecting The Plan where improvements lag; (7) Conducting public outreach and education to increase awareness of Galveston Bay, and advocating conservation of the estuary; (8) Evaluating the impacts of proposed actions on cultural resources and areas of historical significance.'0 7

Further, the partnership process necessary for successful implementation of The Plan called for the creation of the Galveston Bay Council. 08 The Council consists of agency representatives and various stakeholders (including the Chair of the Galveston Bay Foundation and the Vice Chair of Houston Lighting & Power) with interests in protecting the bay's natural resources.t' 9 The Council was created and appointed by the TNRCC in 1995."1 The Council's active role will consist of the following duties:

(1) Provide an ongoing forum for technical and stakeholders review and involvement during The Plan implementation. (2) Contribute to assessments of [sic] Plan effectiveness and participate in periodic redirection of The Plan initiatives. (3) Advise the TNRCC during consistency reviews of eligible federal projects.

105. The Plan, supra note 76, at 15. 106. Id. 107. GBEP,supra note 1. 108. The Plan, supra note 76, at 15. 109. Id. 10. GBEP, supra note I. 186 TEXAS TECH JOURNAL OF TEXAS ADMINISTRA TIVE LAW [Vol. 2:173

(4) Maintain agency commitments to implement The Plan; assure efficient cross-jurisdictional coordination and, if necessary, facilitate resolution of disputes. (5) Set annual priorities for implementation of action plans."'

These two sections of law encompass the main aspects and reasoning justifying the Galveston Bay Estuary Program in the state of Texas. The plan itself is complex and designed to rehabilitate the bay from pollution, development, and overuse."' The actual plan and examples of its specific requirements will be discussed in greater detail in the following section. This will allow attorneys who represent client interests in the watershed area to evaluate the potential business and industry issues that this new administrative comprehensive conservation plan will create.

VI. AN OVERVIEW OF THE GALVESTON BAY PLAN

Galveston 'Bay's problems and solutions are identified and discussed extensively throughout The Plan. The Plan represents a partnership of stakeholders who possess vital roles in industry, the environment, and as public citizens."3 These stakeholders, along with local, state, and federal agencies, are afforded the responsibility of maintaining a healthy bay for the public good."' A partnership approach is the focus in The Galveston Bay Plan, departing from the traditional command and control approach seen commonly in the environmental arena.' In the traditional process, "individual problems prompted legislation and creation of a system of diverse regulatory mandates."" 6 Under this process, the authority is a commanding top-down approach resulting in a adversarial relationship between stakeholders."' The traditional process can be quite effective for some environmental issues, but it is imperative that a plan dealing with the National Estuary Program provide a partnership-like atmosphere." The partnership process starts with the relevant stakeholders researching and agreeing upon the issues for the entire estuarine ecosystem."19 but is necessary to help "stimulate a self- This process takes longer, 12 perpetuating sense of personal responsibility for public resources." 0

111. Id. 112. Id. 113. The Plan,supra note 76, at.12. 114. Id. at 13. 115. Id. 116. Id. 117. Id. 118. Id. 119. Id. 120. Id. 2001] OVERVIEW OF THE GALVESTON BAY ESTUARYPROGRAM 187

The above process was essential in developing The Galveston Bay Plan by factoring in the viewpoints of all relevant stakeholders, including government agencies and the public.' The management conference felt it was necessary to involve all relevant stakeholders in the process in order to develop a comprehensive environmental program with the primary goal of active problem-solving. 22 The Galveston Bay Plan consisted of the collaboration of over two hundred and twenty individuals who developed The Plan in the following three different phases over a five-year period:

Phase One: Agreement on bay problems. A Priority Problems List was established by consensus of the Management Conference. This list provided guidance for the next step. Phase Two: Scientific characterization of the problems. Over a four-year period, numerous scientific studies were carried out to determine the status, trends, and probable causes of the problems. This effort culminated in publication of a book entitled: The State of the Bay: A Characterizationof the Galveston Bay Ecosystem. This step resulted in substantial redefinition of the bay's problems, providing a strong factual foundation for management planning. The Action Plan Demonstration Project program of the EPA has been helpful in providing funds for early implementation of critical actions, and other actions have been taken using other means. This uAction-now" approach has helped provide experience in implementation of work that can be expanded for full-scale bay management under The Galveston Bay Plan. PhaseThree: Development of solutions. The Galveston Bay Plan links a set of specific initiatives to the identified problems of Galveston Bay. These solutions were developed over three years by sixteen task forces established by the Management Committee of the GBNEP. In all, several hundred meetings were convened as The Galveston Bay Plan went through six complete revisions.'

The Plan, as finalized contains eighty-two management plans that specifically address seventeen problematic areas." See Appendix A for the list of action plans along with agency responsibility information. . The Plan's projects and recommendations fall under one of the following three headings: (1) Habitat/Living Resource Protection; (2) Balanced Human Uses; or (3) Water and Sediment Quality Improvement. 2 ' In addition, the action plans are divided into eleven different categories that include, "habitat protection; species population protection; public health protection; freshwater inflow and bay circulation; spills and dumping; shoreline management; water

121. The Plan, supra note 76, at 19. 122. Id. 123. Id. 124. Jim Katchtick, The Galveston Bay Plan, In TNRCC THE STATE OF THE BAY SYMPOSIUM II, 7(1997). 125. The Plan, supra note 76, at 24. 188 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173 and sediment quality; nonpoint sources of pollution; point sources of pollution; research; and, public participation and education."'26 Further, the concepts of the Regional Monitoring Program, the role of the public, and 2 7 implementation/funding are discussed. After identifying and prioritizing the problems and objectives of The Plan, specific action plans were developed to accomplish these tasks."2 Each action in The Plan includes the following important information:

[I] What: Concise description of the action. [2] How: The process involved in taking action, described in the form of consecutive steps involving specific entities. [3] When: Timeline keyed to the steps under "How," indicating the schedule for the action. [4] Where: Where action will be accomplished and portion of estuary it is expected to affect. [5] Who: Agencies/institutions who will act, pay, and enforce; descriptions of their commitments. Lead entity(s) are designated here. [6] Public Costs: Table presenting estimated five-year costs of action for new initiatives. [7] Regulatory Issues: Statement of any need(s) for legislation or regulation associated with the action. 29

For example, the first action plan under the Habitat Protection section of The Galveston Bay Plan calls for the restoration, creation, and protection of wetlands. 3' This action plan calls for establishment of an enhancement program with specific targets aimed towards the following: "(a) 1,400 acres of submerged aquatic vegetation; (b) 5,000 acres of fresh marsh; and (c) 8,600 acres of estuarine emergent marsh."'3 ' Some of the steps promoted by the plan include having agencies such as the Texas Parks and Wildlife Department (TPWD) and the United States Fish and Wildlife Service (USFWS) work with area partners such as Partners for Wildlife and Coastal Wetlands Planning Protection, thus utilizing efforts to restore and maintain existing wetlands.'32 Also, consideration is given in the action plan to the 3 development of boat-free zones and additional coastal preserves. 1 The action plan does, however, require approval from the GLO before beginning

126. Katchtick, supra note 124, at 7. 127. Id. 12S. The Plan, supra note 76, at 25. 129. Id. 130. Id. at 44. 131. Id. 132. Id. 133. Id. 2001] OVERVIEW OF THE GALVESTON BAY ESTUARYPROGRAM 189 activities and projects on state lands."" In addition, the action plan calls for increased public education and information to encourage habitat conservation.'" The total cost for this action plan is estimated at $4,296,250. 36 The following agencies have been identified as possible sources of funding: USDA, NOAA, Corps, USFWS, USGS, EPA, DOT, and the Nature Conservancy.' The regulatory issues prevalent under the action plan consists of making changes to existing federal, state, and local government initiatives that currently discourage and help destroy habitat restoration. 3' The Galveston Bay Plan includes a total of eighty-two action plans with the same analysis and information as provided in the example above. 3 9 For specific information on these action plans, please refer to The Plan itself. A list has been provided in Appendix A, which includes the title of specific action plans along with the relevant agencies who are responsible for implementation. The Plan should be consulted whenever an entity is evaluating or contemplating an activity or project along the Galveston Bay estuarine area. Special emphasis should be given to specific action plans that will affect possible client's interests in private industry and development.

VII. ENFORCEABILITY

The National Estuary Program was established by the Clean Water Act (CWA) amendments of 1987 to provide structure for the coordination of federal, state, and local government efforts.'I The primary goal of the NEP is protecting the nation's most significant estuarine habitat areas.' 4' The CWA gives implication that once a completed Coastal Comprehensive Management Plan (CMP) is approved by the EPA it will be implemented.' As written, the CWA does not provide authority to enforce implementation of the CMP and therefore the Galveston Bay Estuary Plan as a whole is not enforceable.'43 However, the plan will establish the basis for "federal and possibly state and local consistency review."'" The type and strength of consistency review will depend on the adoption of the "enforceable policies of The Plan as a SAMP [Special Area Management Plan] in the TCMP [Texas Coastal Management

134. Id. 135. Id. 136. Id. 137. Id. 138. Id. 139. Katchtick, supra note 124, at 7. 140. JEFFERY M. TAEBEL ET AL., IMPLEMENTATION STRATEGY FOR THE GALVESTON BAY PLAN 3 (1994). 141. 33U.S.C.§ 1330 (1994&Supp. 1998). 142. Taebel, supra note 140, at 3; see also 33 U.S.C. § 1330(0(2). 143. Taebel, supra note 140, at 3. 144. Id. 190 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173

Program] and acceptance of the TCMP into the Federal Coastal Zone Management (CZM) Program. "145 Enforceable policies under The Plan are defined as the elements of the "recommended actions which call for federal, state, and/or local agencies to exercise their regulatory authority to require a cause of action to be undertaken." 46 Many of The Plan's specific action plans call for the establishment and/or modification of legislation, memoranda of understanding, and local ordinances to develop these enforceable policies. 4 " The establishment and modification of these new and existing regulations will require cooperation between the various stakeholders including both federal and state agencies and the Texas Legislature. 4" The concept of consistency is nothing new in the area of environmental and administrative law.'49 In the general scheme of The Galveston Bay Plan, consistency will assure that agencies conducting projects and activities in the estuarine area will be in compliance with the overall goals of The Plan.'" The chief reviewing entity determining consistency with The Plan is the GBP, a subgroup of the Texas Natural Resource Conservation Commission.)' The GBP's responsibilities include reviewing "applicable federal assistance and development projects for consistency with The Plan, in accordance with the provisions of Section 320 of the Clean Water Act."' In addition, once The Plan is adopted within the TCMP as a SAMP, the GBP will provide information to the Coastal Coordination Council (CCC) to determine consistency with state and local projects.' Also, the GBP will work in partnership with the GLO to preview specific projects for consistency by allowing "applicants to address potential impacts on the bay earlier in their planning process, minimizing inconsistencies with the Plan."" In developing the TCMP, Texas has currently been given designation as a federal CZM program.' 5 With CZM status, consistency review under The Plan would further apply to federal permits and licenses giving The Plan added strength over the CWA consistency, which included only federal agency actions and funding programs.5 6 In summary, The Galveston Bay

145. Id. 146. Id. 147. Id. 148. Id. 149. See 42 U.S.C. § 4332 (1995). 150. The Plan, supra note 76, at 325. 151. Taebel, supranote 140, at 13. 152. Id. 153. Id. 154. Id. 155. Texas Coastal Management Program, htp://red.glo.state.tx.us/resmgmt/coastal/cmp.html (last visited Jan. 25, 2000). 156. Taebel, supra note 140, at 13. 2001] OVERVIEW OF THE GALVESTON BAY ESTUARYPROGRAM 191

Plan will utilize the three types of consistency review outlined in the following table:'

Type of Consistency Authority Scope

Federal Consistency for Executive Order of the Applies to federal National Estuary President cited in actions affecting NEP Programs Section 320 of the initiatives. Is limited to Water Quality Act federal financial (EPA). assistance and development programs; does not apply to permits

State Consistency under State Statute; final Applies to state agency the Texas Coastal determination by the actions within the Management Program Coastal Coordination coastal area. Is based on Council enforceable policies, agency rule-making, and "thresholds;" including state permits

Federal Consistency Federal Statute under Applies to federal under the Coastal Zone NOAA; depends upon actions in the coastal Management Act federal approval of the zone, including permits; Texas Coastal gives states control over Management Program federal actions under state coastal management programs

As The Galveston Bay Plan passes through each one of these consistency phases, it is imperative that practicing attorneys stay informed. These consistency provisions have the ability to affect a number of client interests in the watershed area. Whether a certain action plan affects the development of waterfront property or affects the discharge permit application process, depends on the nature of consistency review involved. Each of the previous consistency provisions and the procedures used to review consistency will be discussed in greater detail in the following sections.

157. The Plan, supra note 76, at 326. 192 TEXAS TECH JOURNAL OF TEXAS ADMINISTRA TIVE LA W [Vol. 2:173

A. FederalConsistency for NationalEstuary Programs

Section 320 of the Water Quality Act allows the GBP to conduct federal consistency review. 58 This section describes the different provisions that allow for review of "all federal financial assistance and development programs" to determine their consistency with the overall objectives of The Galveston Bay Plan.5 9 By virtue of delegated authority from the Management Conference approved by the EPA, the GBP will provide commentary of specific federal projects scheduled in the estuarine area."W For federal activities inconsistent with The Plan,the GBP will suggest alternatives to bring the activities into compliance.' 6' This compliance is necessary based on the requirement of the Management Conference to

review all Federal financial assistance programs and Federal development projects in accordance with the requirements of Executive Order 12372, as in effect on September 17, 1983, to determine whether such assistance program or project would be consistent with and further the purposes and objectives of the plan prepared under this section.6

Executive Order 12372, entitled Intergovernmental Review of Federal Programs,was signed into law by Ronald Reagan and provides that federal agencies must consult state and local officials who may be affected by federal financial assistance or direct federal development. 63 In addition, the State of Texas has its own Executive Order process known as the Texas Review and Comment System (TRACS).'" Under this review process, federal agencies must inform state and local governments of proposed actions that are subject to the process and make efforts to accommodate the state's recommendation. 165 The federal consistency review afforded by Section 1330(b)(7), will have a significant effect on many of the major activities occurring in Galveston Bay, since most major activities have some type of federal involvement.6 An attorney must consult The Plan if clients are conducting activities in the estuarine area, such as dredging, highway construction, etc., to determine if any possible involvement with a federal agency exists. If there is an agency

158. Id. 159. Id. 160. Id. 161. Id. 162. 33 U.S.C. § 1330(b)(7) (1994 & Supp. 1998). 163. Exec. Order No. 12,372, 47 Fed. Reg. 30,959 (1982). 164. GALVESTON BAY NATIONAL ESTUARY PROGRAM, FEDERAL CONSISTENCY REPORT FOR THE GALVESTON BAY PLAN 6 (1994). 165. Id. 166. Id. at 5. 20011 OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM 193 present, any potential conflicts should be resolved in favor of The Plan's specific goals and objectives.

B. State Consistency Under the Texas CoastalManagement Program

In developing The Galveston Bay Plan,close consideration was given to coordinate the goals and activities of The Plan with the nationwide Coastal Management Program.'67 Texas participated in this program with the development of the Texas Coastal Management Program.'" The TCMP is responsible for coordinating federal, state, and local projects with the primary purpose of managing Texas coastal resources.'69 This program began by coastal communities lobbying for a more centralized approach to coastal issues. o The TCMP established the Coastal Coordination Council for the purpose of administering the management program by overseeing federal, state, and local coastal activities.'' The CCC consists of the following major players in the area of Texas administrative law:

The Commissioner of the General Land Office chairs the Council. The other members of the Council are the chair of the Parks and Wildlife Commission or a member of the commission designated by the chair; the chair of the Texas Natural Resource Conservation Commission or a member of the commission designated by the chair; a member of the Railroad Commission of Texas appointed by that commission; the chair of the Texas Water Development Board or a member of the board designated by the chair; the chair of the Texas Transportation Commission or a member of the commission designated by the chair; a member of the State Soil and Water Conservation Board appointed by that board; and four gubernatorial appointees. The appointees are a local elected official who resides in the coastal area, an owner of a business located in the coastal area who resides in the coastal area, a resident from the coastal area, and a representative of 72 agriculture.

In general, the council's chief function is to develop and adopt policies used by all entities responsible for regulating and managing the state's coastal resources in the decision-making process.'" The council's role will be to

167. The Plan, supra note 76, at 327. 168. Texas Coastal Management Program, http:l/red.glo.state.tx.us/res._mgmvtcoastal/cmp.html (last visited Jan. 25, 2000). 169. Id. 170. Id. 171. Id. 172. Coastal Coordination Council, http://hed.glo.state.tx.us/resmgmrtcoastal/ccc.htm (last visited Jan. 25, 2000). 173. Tx. NAT. REs. CODE ANN. § 33.204(a) (Vernon Supp. 1999). 194 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173 review state agencies and subdivision practices and actions to determine their overall consistency with the TCMP. 4 The Texas Legislature has stated that an agency or subdivision action that adversely affects or detours from the management plan shall comply with the goals of the Texas coastal plan.' This codifies the consistency review responsibility for the CCC. During the process of conducting a review under Section 33.205, the procedures mandate that

the council shall receive and consider the oral or written testimony of any person regarding the coastal management program as the testimony relates to the agency or subdivision action or federal agency action or activity or outer continental shelf plan under review. The council may reasonably limit the length and format of the testimony and the time at which it will be received. Notice of the period during which the testimony will be received shall be published in the Texas Register and in a newspaper of general circulation in each county directly affected by the matter under review before the commencement of that period. The council shall consider only the record before the agency or subdivision involved in the matter under review, the agency's or subdivision's findings, applicable laws and rules, any additional information provided by that agency or subdivision, and public testimony under this subsection, provided that if the agency or subdivision did not hold a hearing, make a record, or make findings, the council may hold a hearing and make findings necessary to a complete and thorough review.' 6

In addition, the Council is required to formulate a procedure by which an agency or subdivision may apply and receive a preliminary consistency review.'" The preliminary process shall:

(1) create a permitting assistance group composed of representatives of council member agencies and other interested council members to coordinate the preliminary reviews; and (2) require that the following written information be produced not later than the 45th day after the date of the request for preliminary review: (A) a statement from each agency or subdivision required to permit or approve the project as to whether the agency or subdivision anticipates approving or denying the application; (B) if an agency or subdivision intends to deny an application, the agency's or subdivision's explanation of the grounds for denial and recommendations for resolving the grounds in a way that would allow the application to be approved;

174. CoastalCoordination Council, supra note 172. 175. TEx. NAT. REs. CODE ANN. § 33.205(a) (Vernon Supp. 1999). 176. Id. § 33.204(e). 177. Id. § 33.205(0. 2001] OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM 195

(C) if enough information is already available, a preliminary finding as to whether the project is likely to be found consistent with the goals and policies of the coastal management program; and (D) if the project is likely to be found inconsistent with the goals and policies of the coastal management program, an explanation and recommendation for resolving the inconsistency in a way that would allow the project to be found consistent.'

These processes are mandated by statutory authority and should be considered in length by attorneys when analyzing new development projects for clients in coastal areas, including the Galveston Bay Watershed. 79 The Galveston Bay Plan and the TCMP have a unique opportunity to work together to accomplish many of the state's goals for maintaining coastal natural resources.8 0 The Plan calls for adoption by the CCC, as a SAMP within the TCMP, which would allow issues facing the TCMP to take into account the important needs of the Galveston Bay Estuary.'' Final rules have been approved for the TCMP, which uallow the CCC to adopt enforceable policies for Galveston Bay as a SAMP."'82 Subsequently, the GBP in conjunction with the Galveston Bay Council will be able to participate in the consistency process in the following three ways:

[I] Through agency rules. Under the policies of the CCC, state agencies will adopt rules to assure state actions are consistent with the CMP. Such rules could be adopted to assure consistency with elements of The Galveston Bay Plan. Most initiatives in The Galveston Bay Plan have identified a lead agency. [see Appendix A] [2] Through consistency pre-review. Rules of the CCC establish a pre-view process, whereby the CCC can hear and comment on agency actions in the context of non-binding discussion, in essence to provide an opinion in advance of actual consistency review. Pre-review is triggered only by the request of the state agency undertaking the action at hand. [3] Through written/oral comments. When the CCC undertakes consistency review, their meeting for this purpose includes elements similar to a public hearing. Any party can provide comments at such a meeting, including, potentially, a representative of the Galveston Bay Council. The CCC then weighs public testimony prior to their consistency decisions. 83

178. Id. 179. Id. 180. The Plan, supra note 76, at 327. 181. Id. 182. Id. at 328. 183. Id. 196 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVELAW [Vol. 2:173

Under the TCMP's alternative choices for consistency review, the goals of the GBP are even more reachable.

C. FederalConsistency Under the CoastalZone ManagementAct

During the design phase of the TCMP, the overall goal was "to meet requirements for participation in the federal Coastal Zone Management (CZM) Program," which is administered at the federal level by the National Oceanic and Atmospheric Administration (NOAA).'" Once the TCMP is federally approved, the state receives grant funding and can insist that federal projects located in the coastal area be consistent with the overall goals and policies in the coastal management plan.'" The TCMP was presented to NOAA and on January 10, 1997, the program was accepted into the federal 8 6 coastal zone management program.1 Pursuant to the Coastal Management Act of 1972, the federal program is designed to function as a voluntary partnership between the states and the federal government."8 7 The primary goals of the act outlined by Congress include the following:

(1) to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation's coastal zone for this and succeeding generations; (2) to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values as well as the needs for compatible economic development[;J (3) to encourage the preparation of special area management plans which provide for increased specificity in protecting significant natural resources, reasonable coastal-dependent economic growth, improved protection of life and property in hazardous areas, including those areas likely to be affected by land subsidence, sea level rise, or fluctuating water levels of the Great Lakes, and improved predictability in governmental decisionmaking; (4) to encourage the participation and cooperation of the public, state and local governments, and interstate and other regional agencies, as well as of the Federal agencies having programs affecting the coastal zone, in carrying out the purposes of this chapter[.]' s

184. Texas Coastal Management Program, http:l/red.glo.state.tx.uslres-mgmtlcoastal/cmp.htm (last visited Jan. 25, 2000). 185. Id. 186. Id. 187. 16 U.S.C. § 1455 (1995). 188. Id. § 1452(4). 2001] OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM 197

Since the approval of the act, approximately twenty-eight coastal states have 89 developed their own coastal programs for federal approval.' Once a program is approved, all federal activities and projects with the state management programs require consistency. The act specifically states that "[e]ach federal agency activity within or outside the coastal zone that affects any land or water use or natural resource of the coastal zone shall be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs."190 Federal actions include both direct federal actions and indirect federal actions. 191 Direct federal actions are defined as "activities and development projects performed by a federal agency, or a contractor for the benefit of a federal agency."" Indirect federal actions include "activities not performed by a federal agency, but requiring federal permits or licenses or other forms of federal approval, and federal financial assistance to states and territories and local governments." 93 The federal agency responsible for the activity is mandated to provide consistency determination on the particular activity to the relevant state agency."' In the case of Texas, the relevant state agency is the General Land Office. Further, the statute requires the federal agency to "insure that the project is, to the maximum extent practicable, consistent with the enforceable policies of approved State management programs."195 The effects of federal approval of the TCMP will benefit The Galveston Bay Plan tremendously. With the federal Coastal Zone Management Program in effect, consistency review will apply to federal permits and licences in addition to agency actions and funding assistance programs. 96 This designation will serve as an excellent implementation resource, "since federal permits for discharges of wastewater, stormwater, and dredged materials, among others, would need to be consistent with The Plan."197

VIII. CONCLUSION

The Galveston Bay National Estuary Program is a unique approach to solving the problems associated with the Bay. The Galveston Bay Plan calls for a development of partnerships between the various stakeholders to reach

189. CoastalZone ManagementProgram, httpJwww.nos.noaagov/oam/cnm Oast visited Jan. 25, 2000). 190. 16 U.S.C. § 1456(cXIXA) (1994). 191. See Federal Conaistency, http://www.nos.noaa.gov/ocr/czm/federal-consistency.html (last visited Jan. 25, 2000). 192. Id. 193. Id. 194. 16 U.S.C. § 1456(cX1)(C) (1994). 195. Id. § 1456(cX2). 196. The Plan, supra note 76, at 328. 197. Id. 198 TEXAS TECH JOURNAL OF TEXASADMINISTRATIVELAW.[Vol. 2:173 the objectives and goals of the Management Conference. These goals and objectives are necessary to maintain the viability of the bay for generations to come. The Management Conference established a total of eighty-two management actions designed to protect and enhance this valuable ecosystem. These actions are used as guidelines for the GBP to determine the potential effects of federally funded or federally conducted activities in the estuarine area. This process is known as "consistency review." In addition to the consistency review granted under the National Estuary Program (33 U.S.C. § 1330), other federal and state consistency processes exist to provide for further consistency review by the GBP. Overall, The Galveston Bay Plan provides a forum for coordinating agency activities and the activities of various stakeholders, with the ultimate goal of preserving and increasing the value of the bay's natural resources. This can best be accomplished by following the recommendations of The Plan, focusing on implementation and proper monitoring to adequately determine when goals are achieved or need to be re-evaluated.

by Jason Homrighaus 2001] OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM 199

Appendix A: Agency Responsibilities 98

Action Action Title Priority Lead Entities Other Participants Number

liP-I Restore crete,poetwIa d Very HiCh CorpsGLO TPWD. USFWS. NOAA, NMPS,private conservationSCS, ThNRCC, groups pivate landowners, citizens

HP-2 Promote beneficial Very High Cors and agencies serving on TCMP, Tx DOT, TNR.CC, uses of dredged theTC"C' "PWD local sponsors. City material to restore of Texas City andcreate wetlands

HP-3 Inventory degraded Very High USFWS, National Biological NMFS SCS Corps EPA, wetlands an-fund Survey, private landowners GLO. TPWD renedial measures

HP-4 Implemeni a Very Higsh o EPA FEMA. HUD coordinated system- N-.UWS, TRC. H wide wetland TNR1t TWD5, RRC 13O. H. regulatory program GAC. citizens

HP-5 Acquire andprotect High TPWD, USFWS, GLO Corps,NPS, EPA, MFS, quality wetlands private coonservaion groups, private sector

HP-6 Develop.economic High GLO. TPWD. GBC, local USFWS, NOAA, private andtax incentive governments sector, privateconservation wetlandsprogams to protect groups

HP-7 Facilitate birds Very High TPWD, USFWS. GLO Private organizations, nsting on existing Citizens sites

HP-8 Build nesting islands Very High Corps, USFWS. GLO TPWD, local dredging sing dredged sponsors materials

HP-9 Reduce erosional Moderate SCS, GLO Cops SeaGrant N S impacts on wetlands USFWS TPWD TWDB and habitats NBS, T CC durenu of Recimatn, USCG, San Jainto River Authority. TrinityRiver Authority. HGCSD.UT BEG

SP- I Implement a bay- High TPWD, new species advisory USFWS TNRCC, GLO. effort to commitce. GBP EPA CCC, Corps, SCS, strengthenwide species M S. localgovernments, mnagemeni private conservation co3mer1iafitshin interests, the public

SP-2 Retursoyster shells High TPWD OysterAdvinory to designated Commitie. NMF S locaion within the commeial oyster bay harvesters

SP-3 Promote the High USFWS, TPWD, HL&P GLO. TDH, Corps,TAMU. development of other industry eltettive'ter rtiesa maeril 8al

198. Tacbel, supra note 140, at 32-6. 200 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173

SP-4 Set wide a portion of High TPWD USFWS GLO, TD.H, reef hbita as NMFS, tea Grant, industry, sciestific research public areasor preserve

SP-5 Encourage continued High NMFS USFWS. TPWD, Sea development of gear industryGrant. ommercial fishing to reduce commercial bycatch

SP-6 Conduct education High TPWD

SP-7 Investigate potential High HL&P TPWD, USFWS, SeaGrant measuresto reduce impsement and

SP-8 Develop High TPWD USFWS, NMFS management plans for endangeredor threatened species

SP-9 =Iprove Low EPA, USFWS. USCO TPWD, NMFS prohibitions against introductions of exotic species

SP-10 Identifyimlement and Low TPWD NMFS. USFWS. SCS eniques for the controlof problem exotic species

PH-I Develop a seafood High TDH TNRCC, EPA. FDA, and consumption safety localgovernments proram

PH-2 Enhance the DH Moderate TDH TPWD, USGS Shellfish Sanitation Program

PH-3 Develop a contact Low TDH EPA. TNRCC USGS recrestion advisory county and lc al health program agencies

FW-l Complete current Very High TWDB, TPWD TNRCC. Univemities studies to determine freshwater inflow needsfor the bay

FW-2 Exoand streanmflow, Very High USGS.TPWD Trinity River Authority, Eaient loading. SanJacinto River and rainfall Authority Corps City of monitoring Houston. Harnai onty Flood Control District, National Weather Service, BEG, Iocal govettimnents

FW-3 Establish Very High TNRCC TPWD TWDB, GLO, management CCC, ('ty of Hoston, stratellies for Trinity River Authority, meting freshwater SanJIcinto River inflow needs Authority, other water consumra

FW-4 Establish inflow Very High TNRCC TPWD TWDB GLO regulations to protect CCC OSOS C.orps EPA, the ecological needs USFWS, City of Houston of the estuary otherwater consumen 2001] OVERVIEW OF THE GALVESTON BAYESTUARYPROGRAM 201

FW-5 Explore moam of Very High TNRCC TWDB TPW. USGS C idinagiment Corr UO.- u o toh Rec anation, Trinity River RiverAuthrt Authiority Sa'acinto

FW-6 Reduce water Very High GBP. TWDB.HGCSD TN.CC munlcI. lies, consumption Triniy lUve Authonty, at acito River. an

FW-7 Evaluate the effects Moderate TNRCC TWDB TPWD USOS circulationof tructures on bay COZI, tity ofixa City.

SD-I Promote Ilaning Hih Natural resource mme forthe ofHTia ie US S. that will theilitte awe natural resource NMFS. GLO. TNRCC. TPWD) damage assesament

SD-2 Identify simplified High GRP Natural resource trstees d "Tm P . .SFWS for the stateNOAA. of Texas GLO. (i.e. oil spills MRCC: TPWD)

SD-3 Facilitate elf ve Low GOP Natural resourcetrustees restoration of for the stareof Teas (i.e. naturalGalveston resources Bay's TNP.CC.USFWS, I'MD)NOAA. GLO. damage by llsTCT

SD-4 Facilitate spill Low GLO Natural resource trnstee clanup byadvance for the atieof Tea lie. shoreline USFWS NOAA, TNRCC characterization TPWD)

SD-S Improve trash Low GRP GLO Corps, loa manaement nearthe governments, coonercial- shoreline venture ..perator for private failities

SD-6 Screentrash from Low L9c|Kvenmes sby authority stoniwater oWEjA "nTN. tX discharge

SD-7 Publicize Low GOP GLO. TNRCC. local medi ivironmqtal aIrm eep Texas .eauuftal" ctaute by illegal similar campaigns. dumping

SM-I Establish a planning High Local govenment, H-GAC Regulaoy szence, prgashor-elineprosrp."' fototen scoithstuat deoees ebmcand private development

SM-2 Identffpoprite High GOP.H-GAC Local governments. CCC resioetis] shoreline develpmentI guidelines

a DPS SM-3 commorcradildentify priate High GBP. H-GAC, TNRCC. GLO,l o TNRCC,l m ints. H-GAC, industrial shoreline indsy piblic deveopment guidelines

SM-4 Minimize negtive High GLO TNRCC. TDH. coury effects of siructures health departments. rps. and redging on private lesholder, loca publicly owned lands 8ovemmeUS US9O 'W," P A,

SM-S Improve acces to Low GOP TPWD, USFWS, H-OAC, publc.l.yowned 8LO . Co nemats. 202 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173

WSQ-l Reducecontaminant Very High TNRCC EPA, NPDES pernit concentraions to holders USGS, toxics meetstandards and researchers criteria

WSQ-2 Determine source of Very High TNRCC. USFWS EPA. TPWD USGS ambient toxicity in Corps. RRC. PDES water andsediment torinwater permit holders, industrialgroups

WSQ-3 Establish and adopt Very High TNRCC TPWD USFWS USGS, sediment quality GLO criteria

WSQ-4 Perform TMDL Very High TNRCC EPA USFWS USGS. toad in studies for NPDS, stoirwater permit toxcs holders

WSQ-5 Sport Clean Texas Very High TNRCC, industries, local Prevention20 Pllution Program municipalities, andcitizens

WSQ-6 Reduce nutrient and High TNRCC. EPA. USGS Local municipalities BOD loadings to problem areas

WSQ-7 Perform TMDL High TNRCC EPA. USFWS, USGS, loading studies for NPDES. stormwater permit oxygen demand and holders

NPS- I Implement Very High Joint Storm Water Task Force, H-GAC USGS EPA. atorrwater programs POadena.and municipalities in TNRCZ!, local developers for local local Galveston Bay Watershed municipalities

NPS-2 Perform pilot Very High GBP, TNRCC, Houston/Harris H-GACEPA.diniversities iPectsto develop County USGS,.GL (TCMP),n beat consultin S i~rms,lo~a management municipalties practices for the Galveston Bay watershed

NPS-3 Identify andcorrect Very High GBP H-GAC EPA. universities, priority watershed USGS SWCB SCSGLO pollutant problems fiCMs)local municipalitiescosulting firms,

NPS-4 Establish residential Very High TNRCC. GBP EPA, GLQ (TCMP, local load reduction municipalities, Ioaschool programs districts, environmental organizations

NPS-5 Correct Very High County Health Departments EPA. TD. TPWD malfunctioning Corps. GLO, GBP shoreline sepic tanks

NPS-6 Implement NPS Very High GLO. NOAA EPA, USGS. TNRCC. local reductionaplan municipalities, marina prgram or new owners, construction development companiesand developers, indutrie

NPS-7 Establish roadway Very High GBP, TXDOT USDOT, county highway planning to depurtments, local minimize NPS municipalities, TNRCC effects

NPS-8 Implement NPDES Moderate EPA.,T RCC, industries storm water projran identified by federal regulations for areaindustries in NPDES industrial stormwater permit program 2001] OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM 203

NPS-9 Prevent degradation Moderate TNPCC. localindustriea with H-GAC. River Authorities, of baywaters by known ground water problems USGS known industrial ground water plumes

NPS-10 Develop inventory High SWCB, SCS,H-GAC River Authorities, local of agricltura NPS farming o 1anizatons EPA, TNRCC. USGS. GLO

NPS-tI1 Coordinate and High GBP SWCB diutricts GLO. implement existing USDA EPA.S Clea agficultural NPS River ct studies, "IA, control programs Farm Assist Rural Clean Water Program. Cner13vation Reserve Program. Wetlands Reserve Program. TNRCC Ag CCa(MOUaNCnd SCWB) betvTen

NPS-12 Adopt regional Low H-GAC, CCC, GBP EPAITNRCC (NPDES). consIucion GLO (TCMP), local standards for NPS municpalities, Joint Storm reduction Water Mnagement Task Force

NPS-13 Implement toxics Low H-GAC, CCC. GBP GLO (TCMP), EPA, andnutrient control TNRCC. localdevelopers, practices.at construction companies, contruction sit municipalities, Joint Storm Water Management Task Force

NPS-14 Require sewage Moderate GLO. TPWD. TNRCC GBP. local marinas local municipalities, TNi.CC andpumpout provisionsstorage, for treatment

NPS-I S Require useof Moderate TNRCC GBP, GLO (TCMP) local marine sanity boatsupply retailers, boat chemicals that can owners be treated in POTWs

NPS-16 Implement Moderate Marina ownets with NPDES Local municipalities, washdown controls permit TNRCC. GLO (TCMP). and containment CoastGuard. EPA measures

PS-I Determine location Very High TNRCC, local municipalities EPA MUD GCWDA, andextent of bypass TWD5B,G , Galveston andoverflow CountyHnrri County, problems Chai ounty.County Brzoria County. Liberty

PS-2 Eliminate or reduce Very High TNRCC. localmunicipalities GLOEPA, MUDS GCWDA" bypassor overflow problems

PS-3 Regionalize small High GCWDA. TNRCC Local municipalities wastewater treatment MUDs. GLO, USGS systems

PS-4 Improve compliance High TNRCC. EPA GCWDA. POTW operators, monitoring and USGS enforcement for small discharges

PS.5 Implement a dry- High local municipalities. POTW TNRCC. GLO weather illegal operators connection program

PS-6 Issue NPDES Very High EPA. RRC Oil producer with brine Contal Genr discharges Permit or eliminate harm from oilfield produced water discharges 204 TEXAS TECH JOURNAL OF TEXAS ADMINISTRATIVE LAW [Vol. 2:173

RSC- I Estabiha research Sunns GOP UTWAMU, 1114R5ice. coordination board A=" WT

fu GS.TCC, river autho=fties environmental groups. industrial research groups

RSC-2 Identf research Sureot GDP UT TAMU ecosytem TNR C (L0 H RC. pernpectrve TlWDB'rS.N-F-. F. TPW6SFWS: S.TCC, 'river authorities environmental groups, industrialresearch groups

RSC.3 Continue Stare oirm Support GBP UT TAMU Ll, Rice. Bay prom Actin WF S Gn L TNWtCGLO TDRAC. TWDB 'GOFPWD " h SS. TCC.river na s environmental groups, indusirial research groups

RSC-4 Increase funding for Support GBP UT TAM UH Rice Galveston Bay Action WEF.SeaG;ant. TW1. research TWDBdT NRCC GF LO 'rW% DHRk C SOUSS,TCC, 'river authorities, environmental groups, industrial research groups

PPE-l Eltablish citizen Suort GBP involvement u an A roi mgal partof the

PPE-2 Continue and expand Suport GBP SeaGrant, pcrnment the Stateof the Day Alion ageces universities, GBF. Symposia ublic and private schools.

PPE-3 Develop and Suport GBP GOF. governmental implement a long. Action agencies with a role in bay range adult management, media outreacheduction program and

PPE-4 Develop specific Supor GOP GBF Local schools and curricula r use i univenitie. TPWD, Galveston Bay USFWS, State watershed dl coordinatinc ommittee on districts environmenial education, Ag. exteuion h ice

PPE-5 Continue to develop Suot GOP. GBF TNRCC, TDH, TPWD. all effective voluater A M other overmmental opptunities for agencies with a role in bay ciizens management, other private volunger gioups. the public

PPE-6 Maintain a citizen So GDP. Th.CC local environmental pollution reporting Aion agencies system

PPE-7 Develop and A,&.Suc._t H-GAC implement a atrategy educmdafforinformn. rvidinU support involvement 2001] OVERVIEW OF THE GALVESTON BAYESTUARYPROGRAM 205 206 TEXAS TECHJOURNAL OF TEXASADMINISTRATIVELAWj[Vol. 2:173

Appendix B. Applicable Acronyms'"

BMP Best Management Practice CCC Coastal Coordination Council CCMP Comprehensive Conservation and Management Plan CERCLA Comprehensive Environmental Response, Compensation and Liability Act CMP Coastal Management Plan CORPS U.S. Army Corps of Engineers CRP Clean Rivers Program CWA Clean Water Act CZARA Coastal Zone Act Reauthorization Amendments CZM Coastal Zone Management EPA U.S. Environmental Protection Agency ESA Endangered Species Act FDA Federal Food and Drug Administration FEMA Federal Emergency Management Agency FW Freshwater Inflow and Bay Circulation Action Plan GBC Galveston Bay Council GBEP Galveston Bay National Estuary Program GBF Galveston Bay Foundation GBP Galveston Bay Program of the TNRCC GLO Texas General Land Office H-GAC Houston-Galveston Area Council HGCSD Houston-Galveston Coastal Subsidence District HL&P Houston Lighting & Power Company HP Habitat Protection Action Plan HUD U.S. Department of Housing and Urban Development MOU Memorandum of Understanding NEP National Estuary Program NEPA National Environmental Policy Act NMFS National Marine Fisheries Service NOAA National Oceanic and Atmospheric Administration NPDES National Pollutant Discharge Elimination System NPS Non-Point Source ONRW Outstanding Natural Resource Water OPA Oil Pollution Act OSPRA Texas Oil Spill Prevention and Response Act PH Public Health Protection Action Plan POTW Publicly-Owned Treatment Works PPE Public Participation and Education Action Plan

199. Taebel, supra note 140, at 129-30. 2001] OVERVIEW OF THE GALVESTON BAY ESTUARY PROGRAM 207

PS Point Source RCB Research Coordination Board RCRA Resource Conservation and Recovery Act RRC Texas Railroad Commission SAMP Special Area Management Plan SARA Superfund Amendments and Reauthorization Act SCS Soil Conservation Service SD Spills/Dumping Action Plan SM Shoreline Management Action Plan SP Species Population Protection Action Plan SPCC Spill Prevention Control and Countermeasures Plan SWCB Texas State Soil and Water Conservation Board TAC Texas Administrative Code TAMU Texas A&M University TCMP Texas Coastal Management Program TDA Texas Department of Agriculture TDH Texas Department of Health TEA Texas Education Agency TED Turtle Excluder Device TMDL Total Maximum Daily Load TNRCC Texas Natural Resource Conservation Commission TNRIS Texas Natural Resource Information System TPWD Texas Parks and Wildlife Department TCC Texas Chemical Council TSC Technical Support Committee TSCA Toxic Substances Control Act TWDB Texas Water Development Board TWRI Texas Water Resources Institute TXDOT Texas Department of Transportation USCG U.S. Coast Guard USDOT U.S. Department of Transportation USFWS U.S. Fish and Wildlife Service USGS U.S. Geological Survey UH University of Houston UT University of Texas WEF Water Environment Federation WQS Water Quality Standard WSQ Water and Sediment Quality Action Plan