Water Quality Trading and Agricultural Nonpoint Source Pollution: An Analysis of the Effectiveness and Fairness of EPA's Policy on Water Quality Trading

Water quality problems continue to plague our nation, even though Congress passed the Clean Water Act (CWA) to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters"1 more than three decades ago. During the past thirty years, the dominant sources of water pollution have changed, requiring us to seek new approaches for cleaning up our waters. Water quality trading has been heralded as an approach that can integrate market mechanisms into the effort of cleaning up our water. This Article examines the Environmental Protection Agency's (EPA) policy on water quality trading and the prospects for water quality trading to help improve water quality.Part II briefly describes our water quality problems and causes. Part III examines the theoretical basis for trading and the EPA's Water Quality Trading Policy. Part IV discusses the potential impact of total maximum daily loads (TMDLs) on water quality trading, and Part V analyzes potential problems that water quality trading programs confront. Part VI addresses distributional and efficiency concerns that arise when considering trading and agricultural nonpoint source pollution. Part VII then examines issues relating to water quality trading and state laws before reaching conclusions and recommendations in Part VIII

Eroding Long-Term Prospects for Florida’s Beaches: Florida’s Coastal Construction Control Line Program

Florida enjoys 825 miles of sandy beaches. These beaches serve as nesting habitat for five species of threatened or endangered sea turtles. Florida’s beaches host the densest sea turtle nesting in the United States, the largest aggregation of loggerhead nesting in the world, and the second highest density of green sea turtle nesting in the hemisphere. Florida’s beaches also provide habitat for hundreds of other species as well. In addition to providing recreational and esthetic values to residents, Florida’s beaches attract millions of tourists – and billions of dollars – each year. An estimated $1 trillion of coastal property in Florida fills local government coffers through ad valorem tax assessments. Beaches and their dunes also act as the first line of protection for human development from storm impacts. Even as Florida’s beaches contribute so much to the state, they have become the focal point for tension between beach dynamics and development. Ever-increasing development on Florida’s shorelines provokes commensurate increases in the amount of property threatened by erosion, or shoreline migration. Shoreline migration is a natural phenomenon occurring in response to sea level, wave energy, and sand supply dynamics. Shoreline migration becomes a problem and is called “erosion” when shoreline migration threatens human structures or property interests along the coast. Currently over 485 miles, or approximately 59%, of the state’s beaches are experiencing erosion, and about 392 of the state’s 825 miles of sandy beaches are subject to what is called critical erosion, a level of erosion that threatens development, recreational, cultural, or environmental interests. Principal causes of erosion and beach migration in Florida are inlet management, storms, sea-level rise, and armoring. Avoiding the hazard is the best way to deal with coastal hazards. Construction sited sufficiently landward of the active beach to allow for natural shoreline migration effectively minimizes coastal hazards to development, protects natural ecosystems, and reduces the multi-million-dollar yearly cost of beach nourishment and armoring. In many instances, past developers built too close to the beach, resulting in high losses from storms and exorbitant costs for rebuilding, armoring, and nourishing of beaches. While Florida’s current CCCL permitting program has increased the safety of new structures built in the coastal zone, it fails to adequately protect the ability of the beach to migrate, fails to account for SLR, and encourages increased development due to beach nourishment. These failings have resulted in increased development subject to both immediate coastal hazards and the long-term problems of SLR. Increasing beach erosion and SLR bring into question the feasibility of Florida’s current focus on beach nourishment as a means to avoid the conflict between development and beach migration. The CCCL program’s granting of erosion credits for nourishment projects and failure to account for SLR in current permitting decisions foster development that will require protection from beach migration and SLR or will be lost to the sea. In areas which are already densely developed, the incremental cost of such new development may be minimal as the area would likely already have been prioritized for shore protection from SLR anyway. However, new development in previously undeveloped areas and increasing density in sparsely developed areas is adding rapidly to the amount of land on Florida’s coast that will receive priority for protection from erosion and SLR. Protection from SLR in the future will exact far higher costs than we have yet seen from shore protection efforts in Florida. As the speed and magnitude of SLR increase, nourishment alone will likely not be able to keep up due to cost and lack of sand as well as the increasing energy required for nourishment. Once nourishment is no longer feasible in a developed area, two choices will remain: either armor and lose the beach or move human development back from the beach and allow the shoreline to migrate. Such choices will be very difficult as the losses from either option will be tremendous. Multiple federal, state, and local policies encourage or permit development that is or soon will be subject to severe fluctuations of the beach-dune system. While reforms are necessary in federal, state, and local insurance; planning, disaster management and relief; and permitting policies, reforms to Florida’s CCCL permitting program for coastal construction are also urgently needed to discourage new coastal construction or redevelopment in areas vulnerable to likely SLR and to ensure that redevelopment or new development that is permitted be conditioned to prevent its inclusion as justification for future armoring and loss of our beaches. Anything less amounts to the State of Florida abdicating its public trust duty to manage and preserve Florida’s beaches for the good of all its citizens

Eroding Long-Term Prospects for Florida’s Beaches: Florida’s Coastal Construction Control Line Program

Florida enjoys 825 miles of sandy beaches. These beaches serve as nesting habitat for five species of threatened or endangered sea turtles. Florida’s beaches host the densest sea turtle nesting in the United States, the largest aggregation of loggerhead nesting in the world, and the second highest density of green sea turtle nesting in the hemisphere. Florida’s beaches also provide habitat for hundreds of other species as well. In addition to providing recreational and esthetic values to residents, Florida’s beaches attract millions of tourists – and billions of dollars – each year. An estimated $1 trillion of coastal property in Florida fills local government coffers through ad valorem tax assessments. Beaches and their dunes also act as the first line of protection for human development from storm impacts. Even as Florida’s beaches contribute so much to the state, they have become the focal point for tension between beach dynamics and development. Ever-increasing development on Florida’s shorelines provokes commensurate increases in the amount of property threatened by erosion, or shoreline migration. Shoreline migration is a natural phenomenon occurring in response to sea level, wave energy, and sand supply dynamics. Shoreline migration becomes a problem and is called “erosion” when shoreline migration threatens human structures or property interests along the coast. Currently over 485 miles, or approximately 59%, of the state’s beaches are experiencing erosion, and about 392 of the state’s 825 miles of sandy beaches are subject to what is called critical erosion, a level of erosion that threatens development, recreational, cultural, or environmental interests. Principal causes of erosion and beach migration in Florida are inlet management, storms, sea-level rise, and armoring. Avoiding the hazard is the best way to deal with coastal hazards. Construction sited sufficiently landward of the active beach to allow for natural shoreline migration effectively minimizes coastal hazards to development, protects natural ecosystems, and reduces the multi-million-dollar yearly cost of beach nourishment and armoring. In many instances, past developers built too close to the beach, resulting in high losses from storms and exorbitant costs for rebuilding, armoring, and nourishing of beaches. While Florida’s current CCCL permitting program has increased the safety of new structures built in the coastal zone, it fails to adequately protect the ability of the beach to migrate, fails to account for SLR, and encourages increased development due to beach nourishment. These failings have resulted in increased development subject to both immediate coastal hazards and the long-term problems of SLR. Increasing beach erosion and SLR bring into question the feasibility of Florida’s current focus on beach nourishment as a means to avoid the conflict between development and beach migration. The CCCL program’s granting of erosion credits for nourishment projects and failure to account for SLR in current permitting decisions foster development that will require protection from beach migration and SLR or will be lost to the sea. In areas which are already densely developed, the incremental cost of such new development may be minimal as the area would likely already have been prioritized for shore protection from SLR anyway. However, new development in previously undeveloped areas and increasing density in sparsely developed areas is adding rapidly to the amount of land on Florida’s coast that will receive priority for protection from erosion and SLR. Protection from SLR in the future will exact far higher costs than we have yet seen from shore protection efforts in Florida. As the speed and magnitude of SLR increase, nourishment alone will likely not be able to keep up due to cost and lack of sand as well as the increasing energy required for nourishment. Once nourishment is no longer feasible in a developed area, two choices will remain: either armor and lose the beach or move human development back from the beach and allow the shoreline to migrate. Such choices will be very difficult as the losses from either option will be tremendous. Multiple federal, state, and local policies encourage or permit development that is or soon will be subject to severe fluctuations of the beach-dune system. While reforms are necessary in federal, state, and local insurance; planning, disaster management and relief; and permitting policies, reforms to Florida’s CCCL permitting program for coastal construction are also urgently needed to discourage new coastal construction or redevelopment in areas vulnerable to likely SLR and to ensure that redevelopment or new development that is permitted be conditioned to prevent its inclusion as justification for future armoring and loss of our beaches. Anything less amounts to the State of Florida abdicating its public trust duty to manage and preserve Florida’s beaches for the good of all its citizens

Defending the Polygon: The Emerging Human Right to Communal Property

For many peoples in the developing world, homeland security has a meaning very different from its post-September 11 meaning in the United States. In many cases, peoples who have a shared cultural conception of territory within nation-states have begun to adopt the dominant Western property paradigm of land titling to formalize their rights to that territory. Many view this paradigm and the individualization of property rights it facilitates as an inevitable outcome of the inexorable march of social evolution, evidenced by the end of the twentieth century collapse of communism. The Enlightenment era conception of fungible individual property emerged triumphant. Moreover, it has been enshrined in the fundamental human rights charters and domestic constitutions of the twentieth century.\u27 Yet a closer inspection yields a much more nuanced analysis of the nature and forms of property ownership around the world and its treatment within the rights-based framework of humanitarian law. The literature suggests that communally held lands, often referred to as common property, have remained robust and adaptable in the face of the forces of globalization, and continue to persist in even the most developed nations.\u27 This Article begins with a brief review of the literature of common property - an area of intense and interdisciplinary scholarly interest sparked by Garrett Hardin\u27s famous essay, The Tragedy of the Commons. In Part II we briefly review the modem view of common property and its relationship with international development theory. Part III describes the historical development of the three-generational conceptual framework for international human rights law and the right to property within that framework. Part IV discusses key national jurisprudence that has attempted to reverse the colonial legacy of indigenous homeland alienation and the inter-American human rights system