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