Lewis v. Gansler

KEHOE, J. The primary issue in this appeal is whether the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the “Commission”) acted in a quasi-legislative or in a quasi-judicial capacity when it decided that certain provisions of Wicomico County’s Critical Area program did not conform to state law. We conclude that the Commission was acting quasi-legislatively and that it did not exceed its statutory authority in so doing. Thus, we will affirm a decision of the Circuit Court for Wicomico County granting summary judgment to the Attorney General and the Commission in an action against Edwin H. Lewis to enforce provisions of Wicomico ⁴⁵⁷ County’s Critical Area program. On appeal, Mr. Lewis presents two questions which we have reworded: I. Was the Commission acting within the scope of its authority when, pursuant to Natural Resources Article § 8-1809(7), it determined that Wicomico County’s Critical Area program contained a clear mistake, omission, or conflict with the Critical Area Act or criteria?

II

Did the Commission illegally interfere with Mr. Lewis’s efforts to obtain a demolition permit and other related permits from Wicomico County? BACKGROUND This is the third time that aspects of the long-running dispute between Appellant and State and local regulatory agencies have been addressed by an appellate court of this State. See Lewis v. Dep’t of Natural Res., 377 Md. 382, 395 , 833 A.2d 563 (2003) (“Lewis /”); Lewis v. Dep’t of Natural Res., No. 608, September Term 2005 (filed January 22, 2007), cert. denied 399 Md. 34 , 922 A.2d 574 (2007) (“Lewis II ”). We set out the statutory scheme as explained by Judge James Eyler in Lewis II, with some additions.

In 1984, the General Assembly enacted the Maryland Critical Area Act (the “Act”), codified as Md.Code. Ann., Nat. Res. § 8-1801 et seq. (1973, 2007 Repl.Vol., 2011 Supp.) (“NR”), to establish and implement a resource protection program to protect the water quality and natural habitats of the Chesapeake Bay and its tributaries.

NR § 8-1801(b)(l). 1 A cooperative endeavor, the Act authorized local governments exercising planning and zoning powers within the Critical Area 2 to ⁴⁵⁸ establish resource protection programs in a “consistent and uniform manner subject to State criteria and oversight.” NR § 8—1801(b)(2). The “criteria” referred to in § 8—1801(b)(2) are set out in COMAR 27.01.10.01 et seq. Among these is that each local jurisdiction “shall demonstrate that the local regulations and programs proposed to meet the criteria in this regulation are enforceable.” COMLAR 27.01.10.01.H. A local government’s program typically consists of provisions in the jurisdiction’s zoning and subdivision regulations, comprehensive plans and similar land use controls pertaining to the Critical Area. See NR § 8-1808(c).

These provisions are to implement the Act’s three primary goals: minimizing adverse impacts on water quality from pollutants; conserving fish, wildlife and plant habitat; and establishing land use policies to accomplish the first two while accommodating growth within the Critical Area and, at the same time, addressing “the fact that, even if pollution is controlled, the number, movement, and activities of persons in the [Critical] area can create adverse environmental impacts.” See NR § 8—1808(b). One of the most important aspects of any Critical Area program is the “buffer,” defined as “an existing, naturally vegetated area, or an area established in vegetation and managed to protect aquatic, wetlands, shoreline, and terrestrial environments from manmade disturbances.” NR § 8-1802(a)(4). Restrictions upon development activities within buffer areas are integral components of each local Critical Area program. See, e.g., COMAR 27.01.09.01.C (setting out mandatory policies regarding buffer protection for each local program); Critical Area Comm’n v. Moreland, 418 Md. 111 , 116 n. 9, 12 A.3d 1223 (2011) (noting the “significant environmental benefits of requiring a permanently protected buffer between upland land uses and tidal waters, tidal wetlands, and tributary streams____”).

Local governments have the primary responsibility for the development and implementation of their respective programs, subject to the review and approval of the Commission. NR ⁴⁵⁹ § 8-1808(a). To ensure that local programs comply with statutory and regulatory requirements and are enforceable, the Commission has been granted “all powers necessary for carrying out the purposes of this subtitle, including ...;” the power to adopt and amend regulations for the administration and enforcement of the State and local programs. NR § 8-1806(a)(1).

In addition to its other oversight and review powers, if the Commission concludes that a local government’s program “contains a clear mistake, omission or conflict with the criteria or law, the Commission may: (i) notify the local jurisdiction of the specific deficiency; and (ii) request that the jurisdiction submit a proposed program amendment or program refinement to correct the deficiency.” NR § 8-1809(0(1)- The local jurisdiction must submit any necessary amendments to the Commission within 90 days of being notified of the deficiency. NR § 8-1809(0(2). Any projects approved by the local jurisdiction “under a part of a program that the Commission had determined to be deficient shall be null and void after notice of the deficiency.” NR § 8-1809(Z )(3). In addition to local enforcement efforts, the Chair of the Commission may refer a possible violation of a local Critical Area program to the Attorney General for enforcement proceedings.

NR § 8-1815. This statute authorizes the Attorney General in such an action to “invoke any sanction or remedy available to local authorities,” § 18-515(c), as well as to bring an action in equity to, among other things, “compel restoration of lands or structures to their condition prior to any modification which was done in violation of approved project plans.” NR § 8-515(d). Wicomico County’s Critical Area program, approved by the Critical Area Commission on September 6, 1989, is codified in Chapter 125 of the County Code. See Wicomico, Maryland County Code § 125-1(C).

Pertinent to the issues before us, Chapter 125 prohibits “new development activities, including clearing of existing natural vegetation, erection of structures, construction of new ⁴⁶⁰ roads, parking areas or other impervious surfaces and the placement of sewage disposal systems” within the buffer. County Code § 125-9. Additionally, the County Code authorizes the County’s Board of Appeals to grant variances from the strict application of the County’s Critical Area regulations, including its buffer regulations. See County Code §§ 125-35 to 125-38. 3 The County Code contains enforcement provisions.

Specifically, the County Zoning Administrator is authorized to enforce the County Code by notifying offending property owners of the violation, “indicating the nature of the violation and ordering the action necessary to correct it[,]” including ⁴⁶¹ ordering the removal of illegal structures, and taking “any other action authorized by this chapter to ensure compliance with or to prevent violation of its provisions.” County Code § 125—11(B)(1)(b). Having set forth the statutory scheme in very broad strokes, we now turn to the facts in the case before us. Factual and Procedural Background 4 In April 1999, Appellant purchased a tract of land in Wicom-ico County on a tributary of the Nanticoke River consisting of 69.57 acres of tidal marsh surrounding three upland areas aggregating 7.23 acres. The largest of the upland areas, named “Phillips Island,” totals 5.30 acres and is the subject of the current litigation. “Because of the island’s irregular shape, nearly the entire island ... lies within the Critical Area Buffer, as defined by the county Code.” Lewis I, 377 Md. at 395 , 833 A.2d 563 .

In the Summer or Fall of 1999, Appellant hired a contractor to construct six buildings on the island. Id., 377 Md. at 395-396 , 833 A.2d 563 . At least part of each building was located in the buffer. Id.

Neither Appellant nor his contractor obtained permits or sought County approval prior to initiating construction. Id. at 395 , 833 A.2d 563 . When this was called to his attention, Appellant “ceased construction of the camp and began to confer with County officials in an attempt to obtain the necessary permits.” Id. at 395 n. 9, 833 A.2d 563 . ⁴⁶² Thereafter, Appellant submitted an application to the Wicomico County Board of Appeals for an after-the-fact variance from the restriction on building in the Critical Area Buffer. The Board denied the application in a written decision dated February 13, 2001.

Lewis I, 377 Md. at 397 , 833 A.2d 563 . The Board’s decision was affirmed by both the Circuit Court for Wicomico County and this Court, but was vacated and remanded to the Board by the Court of Appeals for failure to consider “all of the Wicomico County Code variance criteria and misapplying the unwarranted hardship standard.” Lewis I, 377 Md. at 390, 437 , 833 A.2d 563 . 5 On remand, the Board held additional argument but did not receive new evidence. Lewis II, slip op. 2. Issuing new findings and conclusions to address the mandate of Lewis I , the Board again denied Appellant’s variance application on June 24, 2004.

Lems II, slip op. 2. The circuit court upheld the Board’s decision and this Court affirmed on January 22, 2007. Lewis II, slip op. 2, 24. The Court of Appeals denied Appellant’s petition for a writ of certiorari on May 11, 2007.

Lewis v. DNR, 399 Md. 34 , 922 A.2d 574 (2007). The Current Controversy We have now reached the dispute that led to the current litigation. When certiorari was denied in Lewis II, the six buildings on Philips Island were in various states of completion; shortly thereafter, Appellant’s Counsel informed the representatives of the County planning staff of Appellant’s intention to remove these structures and to replace them with ⁴⁶³ a single-family house. In a letter dated August 23, 2007, the County Planner ordered removal of the six structures: all administrative requests and appeals to retain the structures as constructed on Phillips Island have been denied ... corrective action must now occur ... [and] all structures constructed on Phillips Island in violation of the Wicomico County Critical Area law must now be removed.

The County Planner further stated that the lawful removal of the violating buildings, which should begin as soon as possible, would require a buffer management plan, 6 a demolition permit, and additional coordination or approval from other local, state or federal agencies. 7 On September 5, 2007, Appellant’s Counsel responded by letter asserting that, Appellant “was prepared to make the necessary arrangement to have the hunting camp structure removed, but intends to place a single-family house on the site—something he clearly has the right to do.” To that end, Appellant intended to file an application for a variance to convert the largest structure on the island, a 40' by 40' building, into a residence. 8 ⁴⁶⁴ At this point, the staff of the Commission became involved. On September 26, 2007, the Commission’s Counsel wrote a letter to the County Planner informing him that “the position of this Office is that no new permit or variance application may be accepted for processing until all of the illegal structures are removed and the site is restored ... in accordance with an approved [buffer management plan].” The County Planner then wrote to Appellant on October 12, 2007, stating that, although the Department was aware of his interest in building a single-family home on the property, the County would not accept or process any new variance application until the existing structures on Phillips Island were removed and the site restored in accordance with an approved buffer restoration plan. There followed exchanges of correspondence between the County Planner and Appellant’s Counsel. In substance, the County pressed Appellant to prepare and submit a structure removal plan and a buffer management plan as quickly as possible.

These plans, together with supporting documentation, were eventually submitted in full on April 4, 2008. In his structure removal plan, Appellant proposed dividing the demolition process into two phases. Phase One would consist of removing five of the six structures on the Island. Appellant proposed beginning work on Phase One within ten days after receiving a demolition permit.

Phase Two would consist of the demolition of Building No. 1 “in the event that a Buffer variance for it ... is not granted____” In contrast to Phase One, Phase Two would commence only “[i]n the event that the requested variance” is not granted. Three days later, Appellant’s Counsel filed a new variance application to convert Building No. 1 into a part-time residence. Appellant’s Counsel acknowledged that the approval of this variance would be conditioned “upon the satisfactory removal of the other buildings from the buffer if that has not been accomplished by the hearing date.” Appellant’s proposal created a dilemma for the County. By their very existence, the buildings interfered with the proper ⁴⁶⁵ functioning of the buffer.

The County Planner had already ordered the prompt removal of all of the structures and the restoration of the damaged buffer areas. Appellant’s position, in effect, was that he would remove Building No. 1 only if and when he was unsuccessful in his new variance application. There was thus an irreconcilable conflict between what the County wanted: prompt removal of all of the buildings and prompt remediation of the buffer, and what Appellant was willing to do: prompt removal of some of the buildings with buffer remediation followed by a possible later removal of Building No. 1, a process that would cause additional damage to the buffer, and would then be followed by additional remediation. Breaking the process into two stages, as Appellant proposed, would in large part duplicate the damage to the buffer caused by the demolition process.

The County’s alternative would be to defer all enforcement actions until the second variance application was finally decided, which would have permitted a violation of the law to continue indefinitely. Moreover, the County Attorney had concerns as to whether, under the County Code, the Board of Appeals could decline to process Appellant’s variance application until the structures on the property were removed and the required environmental remediation completed. The staffs of the Commission and the County communicated about the issue. This dialogue seems to have been conducted largely by the Commission Counsel and the County Attorney.

The record does not contain a first-hand account from either of them. In her deposition, the Commission Chair testified that, after “many conversations” between the two staffs, it became clear that the County officials “didn’t believe they had the authority to deny the processing of the variance application” and that “there wouldn’t be any meeting of the minds on that issue.” She continued: So ... we discussed the various options that we had at that point, given our concern about [Appellant] and his cabins and the preservation of the resource, our desire to implement State policy in the Critical Area program, as we understand it, and as we’ve tried to implement it and ⁴⁶⁶ enforce it for 20 some years, as long as the Commission has been around. We felt that the best, most effective, and really only choice we had would be to impose a sanction as soon as possible on the Wicomico County program to be very, very clear that not only under local authority, but under the state authority of the Commission and our authority under the Natural Resources Article, that it was not appropriate to process the application. And, in fact, according to the terms of the sanction that was imposed ... any processing of a variance will be null and void....

The Commission Chair brought the matter before the Commission at its May 7, 2008, meeting. The relevant portion of the meeting minutes state: [The Commission Chair] said that she will now discuss the Wicomico County Program Implementation issues. She said there are some issues that have arisen in [Appellant’s] Case. It has been going on for eight years. [The Commission Counsel] has been representing our rights.

Last year, a year this Friday, the Court of Appeals denied the case. Almost a year later, the cabins are still standing there. What has happened as a result of [Appellant’s] Case is that it has brought to light some concerns the Commission has regarding the Wicomico County Program itself and how it is handling [Appellant’s] cabins. The Chair said she has asked [the Executive Director] to prepare a summary of the background, what we are doing with this, and how it stands today. [The Executive Director] reviewed the eight-year history of the project.

He said now, based on the Wicomico County Ordinance provision that allows an applicant with a variance to reapply for another variance after one year, [Appellant] has reapplied for another variance. He said that after many more discussions, the County has informed us that officially they must process the variance even though there is an existing County order to remove the cabins. The ⁴⁶⁷ County has notified the Commission that they will process the variance. [The Executive Director] said that staff has recommended to the Chair that the issue before the County is not a variance issue, it is an enforcement issue and instead of rejecting the application for the new variance the county is preparing to hear it. That is not consistent with the Critical Area law or the Wicomico County Code.

Staff has recommended to the Chair that the Commission consider an action to officially notify the County that their program is deficient, that it contains a mistake, omission or conflict, and that the Commission exercise its authority under the law to require corrections to Wicomico County’s Critical Area Program regarding variances. [Commission Counsel] said that under the County’s Program, a disappointed applicant has to wait one year before reapplying for a variance for which he was turned down. The one-year time limit from when the states’s highest court turned down [Appellant’s] most recent appeal ends on May 11. She said the final court order was that the cabins must come out. [Commission Counsel] said the County cannot process an application for the very same structure that is still there. [Commission Counsel] said [Appellant] submitted his application for variance in April. The County has not yet processed it because of the one-year deadline.

The Commission then unanimously approved the following motion: That the Critical Area Commission votes to invoke the provision of Annotated Code of Maryland Natural Resources Article 8-1809(0 to determine that the Wicomico County Critical Area Program contains a clear mistake, omission, or conflict with the Commission’s law or criteria. The Commission determines that the County’s Critical Area Program lacks provisions to ensure effective implementation and enforcement of the County’s Critical Area law with regard to variances. The County’s Critical Area Program lacks provisions to ensure effective implementation and enforcement of the County’s Critical Area law with regard to variances. The County’s variance provisions, Article VI, ⁴⁶⁸ §§ 125-36 through 125-38, are deficient in that these provisions contain no standards under which the County may not accept an application for variance, even if the requested project has been adjudicated as a violation of the County’s Critical Area law.

The Commission shall notify the County of this omission, and within 90 days the County shall submit program amendments or refinements to correct the deficiency, Any future local approvals of variances shall be null and void until this deficiency is corrected. Until this deficiency is corrected, the County shall not accept, nor process, any applications for variances to the Critical Area Program. That same day, the Commission Chair wrote to the County Executive, informing him of the Commission’s action and explaining the Commission’s reasoning. In addition, the Chair directed the County “not [to] accept or process any variance application pursuant to [the Critical Area provisions] of the County Code.” The County Executive responded on May 28, 2008.

He stated that, “[a]s County Executive for Wicomico County, please be assured that we share the Commission’s concern for the potential of ‘endless recycling of variance applications.’ ” The County Executive explained that “[w]e welcome the opportunity to revise this provision of our Critical Area Program so that the Commission will be able to utilize it as a best practices model throughout the Chesapeake and Atlantic Coastal Bays.” The County Executive further agreed not to accept or process any variance applications. Echoing the Commission Chair’s concerns regarding Appellant’s case, the County Executive requested that the Commission join Wicom-ico County in requesting that the “enforcement of [the County’s August 23, 2007 removal order] be assumed by the Office of the Attorney General.” On May 14, 2008, Appellant’s Counsel wrote to the County Planner inquiring into the status of the building removal and buffer management plans and asserting that he had a contractor on standby ready to execute the proposed work. On June ⁴⁶⁹ 2, 2008, the County Planner responded to Appellant’s Counsel in a letter explaining that the County could not accept or process any variance application and that, therefore, they would not initiate review of Appellant’s application. On June 26, 2008, Appellant’s Counsel filed an appeal of the County Planner’s decision “refusing to initiate and/or process [Appellant’s] buffer variance application that was filed on April 7, 2008.” The Board of Zoning Appeals subsequently affirmed the Department’s decision to deny Appellant a hearing on his variance application.

Appellant filed a petition for judicial review of the Board’s decision. While Appellant’s administrative appeal was pending, the Attorney General filed this action in the circuit court. The Attorney General sought “a court order directing appellant to (1) remove the unlawfully built structures, (2) restore the property in the Buffer to its original condition before he built there, (3) plant native vegetation in mitigation of the development activity, and (4) pay damages.” On that same day, an Assistant Attorney General wrote to the Chair of the County Board of Appeals, requesting that, because of the pending litigation, the Board “refrain from taking any action pertaining to [Appellant’s] property in Wicomico County” without first consulting with the Office of the Attorney General. In his answer, Appellant alleged that he had made every effort to comply with orders to remove unlawful structures and had prepared and submitted a detailed buffer management plan but the Commission had thwarted his efforts to comply with the County’s removal order by refusing to review his submission.

Appellant also filed a third party-complaint against the Commission for a declaratory judgment and against Wicomico County for a writ of mandamus. In setting forth his claim against the Commission, Appellant asserted that the Commission, with no factual or legal justification, interfered with his right to a hearing on his variance application, his efforts to obtain a variance, and his efforts to bring his property into compliance with the Critical Area law. Appellant contended that, but for the Commission’s unwarranted ⁴⁷⁰ interference, all of the offending structures would have been removed before the commencement of this law suit. As to his claim against the County, Appellant alleged that, because the Commission’s actions were arbitrary and without factual or legal justification, they did not deprive the County or its Board from accepting, processing or granting legally binding and legally effective buffer variances.

Appellant requested that the court issue a writ of mandamus ordering the County to hold a hearing on his variance application. Both third-party defendants moved to dismiss the third-party complaint but with different results. The circuit court granted the County’s motion on the ground that mandamus was inappropriate because Appellant had an existing remedy, namely, his pending petition for judicial review. 9 For its part, the Commission asserted that Appellant lacked standing to contest the Commission’s decision to suspend the County’s variance program and moved to dismiss the third-party claim for that reason. The circuit court denied the motion.

After conducting discovery, Appellant filed a motion for summary judgment, arguing that the Commission had no factual or legal basis for its actions to deny the Board of Appeals the authority to consider Appellant’s buffer variance and, therefore, the Commission’s actions had no legal force or effect. The Attorney General and the Commission filed a cross-motion for summary judgment and an opposition to Appellant’s motion for summary judgment. The motion stated that Appellant has been in violation of the State and County Critical Area law for a decade, Appellant’s applications for variances have been twice denied and the appeals of those denials have been exhausted, and that the County has ordered Appellant to remove the structures, but the structures still remained. They contended that the Commission’s determination that the County program was deficient was proper and did not hinder Appellant’s ability to remove the offending ⁴⁷¹ structures, so Appellant could not use the Commission’s determination as a defense to his ongoing violation of the law.

The Attorney General and the Commission concluded by requesting that the court enter a judgment declaring Appellant in violation of the law and issue an injunction requiring Appellant to comply with the State and County law by removing the structures that he unlawfully erected in the Critical Area Buffer and restoring the property to its pre-violation state. After a hearing, the court filed an opinion and order in which it denied Appellant’s motion, granted the Attorney General’s and the Commission’s motion, and ordered that Appellant “remove the unlawfully built structures, restore the property in the buffer area to the original condition, mitigate buffer area disturbance by the planting of native vegetation, and pay damages pursuant to NR § 8-1815.1(G)(3).” Pertinent to the issue raised in this appeal, the court concluded that the Commission “properly found the Wicomico County Critical Area Program to be deficient pursuant to NR § 8-1809(1);” that the Commission “properly advised Wicomico County not to accept or process [Appellant’s] 2008 variance application;” and that the Commission’s decision “does not prevent [Appellant’s] from removing the offending structures.” Appellant filed an appeal from the court’s judgment. 10 Analysis Appellate courts review the grant of a motion for summary judgment de novo. Murray v. TransCare Maryland, 203 Md.App. 172, 198-99 , 37 A.3d 987 (2012). Our role is two-fold: “we determine first, whether there is a genuine dispute of material fact, and second, whether the party is entitled to judgment as a matter of law.” Id.

In the case before us, neither party contends that there are material disputes of fact, and we agree. Thus our role is to decide whether the circuit court was legally correct after our own review of the record. Gonsalves v. Bingel, 194 Md.App. 695, 708 , 5 A.3d 768 (2010) ⁴⁷² (citing Haas v. Lockheed Martin Corp., 396 Md. 469, 478-79 , 914 A.2d 735 (2007)). I. NR § 8-1809(Z): “Clear Mistake, Omission, or Conflict” Appellant contends that the Commission’s determination that the County’s program contained “a clear mistake, omission or conflict with the Commission’s law or criteria [because] the County’s Program lacks provisions to ensure effective implementation and enforcement of the County’s Critical Area law with regard to variances” was invalid for three reasons.

First, he argues that the Commission’s action in suspending the buffer variance provisions of the County’s program was administrative (that is, quasi-judicial), 11 rather than quasi-legislative, because it was purportedly taken to facilitate the enforcement of existing Critical Area law and criteria as to a single property. Second, Appellant contends that, regardless whether the Commission’s action is considered as quasi-legislative or quasi-judicial, “the Commission’s actions were so arbitrary and capricious as to be beyond its legal boundaries, because they were not based on correct or relevant facts or law,” and were thus invalid. Finally, he asserts that the Commission’s actions deprived him of procedural due process because it prevented the County’s Board of Appeals from considering a variance application that he had a right to file. We do not find these arguments to be persuasive.

While the appellate courts of this State have not yet considered the issue—at least in a reported opinion—we conclude that the ⁴⁷³ Commission’s decision was a quasi-legislative action. Because it was quasi-legislative, our review is limited to whether the Commission was acting within the scope of its statutory authority. We hold that the Commission was. Finally, Appellant’s right of procedural due process was not implicated by the temporary suspension of the County’s Critical Area variance provision.

A. Was the Commission’s action quasi-judicial or quasi-legislative? In his brief, Appellant states that, in deciding to suspend the variance provisions of the County’s Critical Area program, the Commission was acting in a quasi-judicial capacity: The Commission was not promulgating a new policy, rule or regulation or reviewing for approval a proposed county program or program amendment, all of which are quasi-legislative actions. As the minutes of its meeting and the letters of its Chair to the County Executive establish and other Commission documents confirm, the Commission’s action was taken—in the Commission’s own words—“to ensure effective implementation and enforcement of the County’s Critical Area law with regard to variances.” But, the Commission’s action was not in response to any identified conflict in the County’s overall variance program; rather it was precipitated entirely by the County’s decision to process [Appellant’s] second Buffer variance application and was taken to “provide time to figure out what to do” about the application. (Footnotes and citations omitted.) In response, the Attorney General asserts: The deficiency in Wicomico County’s program was not that the County could summarily reject [Appellant’s] variance requests; rather, the deficiency was that the County could not summarily reject any repetitive variance requests.

While that deficiency was brought to light by [Appellant’s] case, the need for local programs to be able to obtain the removal of structures adjudicated to be unlawful lies at the heart of the Critical Area program that applies across all ⁴⁷⁴ Critical Area counties. Acting to advance such programmatic goals is the hallmark of quasi-legislative authority. We agree with the Attorney General. Section 8-1809 sets out, in exacting detail, the scope of the Commission’s authority to review and approve local Critical Area programs, see §§ (c), (d), (e), and O’), and amendments to local programs, see §§ (g), (h), and (i).

In exercising its