    [From the U.S. Government Printing Office, www.gpo.gov]

      Coastal Zone                                                               ""ro
       Information                                                                    12 74Vg
          Center                  COASTAL 7mu
                                              N
                                  INFORMATiOl" CENTER
              U            COASTAL BELT
             Conflict, Resolution, and Promise

       k- - --------

         GC
          1001
           C66      r.fo-r-Ocean     Management Studies
          1977     '@Irsity of -Rhode    island

                                                   This conference was partially funded by NOAA Office of Sea Grant, U.S.
                                                 Department of Commerce, underGrant #04-7-158-44088.

                                                   The Center for Ocean Management Studies was created in the tall of
                         coms                    1-976 for the purpose of promoting effective coastal and ocean management.
                                                 The Center identifies ocean management issues, holds workshops and
                                                 conferences to discuss these issues, and develops recommendations and
                                                 research programs to resolve them.

                                                                                          12746
                                               COASTAL Z0NE
                                               INF0RMATION  CENTER
               U.S. Coastal Belt:
               Conflict, Resolution, and Promise

               Proceedings of a Conference on the
               Management of Our Coastal and Ocean Resources

               Lewis M. Alexander, Editor

               June 20-21, 1977
               Center for Ocean Management Studies
               University of Rhode Island
               Kingston, Rhode Island

                                                 U.S. DEPARTMENT OF COMMERCE NOAA
                                                 COASTAL SERVICES CENTER
                                                 2234 SOUTH HOBSON AVENUE
                                                 CHARLESTON  SC 29405-2413

                                                   Property Of CSC Library

                    Table of Contents

                    Introduction                                          I  Getting into Deep Water: Emerging Environ-
                     Lewis Alexander                                         mental Regimes and Jurisdictional Conflicts
                                                                             of the Coastal Belt                                  73
                    Management Issues in the Coastal Region               3    Robert E Lutz
                     Robert Knecht
                                                                             Goals for Public Management                          87
                    Coastal Belt Uses and Needs: Fisheries                6    Giulio Pontecorvo
                     Brian J Rothschild and Catherine E Melehy
                                                                             Federal Mechanisms for Management                    90
                    Coastal Belt Uses and Needs: Oil and Gas            16     Robert W Nibloch
                     W L Berry
                                                                             Regional Mechanisms for Management                   91
                    Transportation in the Coastal Belt                  20     Frank Gregg
                     John W Devanney
                                                                             State Mechanisms for Management                      93
                    Marine Recreation: Uses and Needs                   23     Lois Ewen
                     Niels Rorholm
                                                                             Comprehensive Oil Pollution Liability and
                    Offshore Oil Development and the Fishing                 Compensation Legislation                             95
                    Industry: The Georges Bank Case                     28     Barbara D. Burke
                     Stephen Olsen and Thomas Grigalunas
                                                                             List of Participants                                 98
                    Deepwater Ports and the Marine Environment:
                    An Issue for the Gulf Coast                         37
                     Shepard F Perrin, Jr.

                    A Case Study of Marine Recreation Conflicts
                    in Southern California                              44
                     Susan H. Anderson

                    Patterns of Jurisdiction in the Coastal Belt        48
                     Lewis Alexander

                    Implications of the Changes in Fisheries Law
                    for the U.S. Coastal States                         53
                     Francis X Cameron

                    Legal and Jurisdictional Changes for Oil and Gas
                    in the Coastal Belt                                 58
                     John L Seymour

                    Jurisdictional Issues in Marine Transportation      69
                     Joseph Bockrath

                  introduction

                  Lewis Alexander

                       Good morning ladies and gentlemen, and                  through the enactment of the Coastal Zone Manage-
                  welcome to the first annual conference of the Center         ment Act. The coastal states of the United States
                  for Ocean Management Studies. The theme of the               are now engaged in developing, or implementing,
                  conference is Management of the Coastal Belt and             coastal zone management plans. In doing so, the
                  we hope, through this meeting, to identify problems          states must be aware of the onshore impacts of
                  and develop concepts concerning this geographic              the offshore activities - a process which involves
                  area.                                                        some management functions relating to offshore
                       At the outset, something should be said about           activities which take place beyond the seaward
                  both the coastal belt and the Center for Ocean               boundaries of the coastal zone, that is, more than
                  Management Studies. The identification of the coastal        three nautical miles offshore. Because of the obvious
                  belt came in response to national management needs           interactions between offshore, inshore, and onshore
                  in the marine environment beyond the limits of the           activities, and of the possibilities of some forms of
                  territorial sea. Although some forms of management           management of these activities on a coordinated
                  needs have existed in this area for several decades,         basis, the concept of the coastal belt has been
                  particularly with respect to the resources of the            developed, embracing both the coastal zone and
                  continental shelf, the real impetus came in March            the offshore areas between 3 and 200 nautical miles.
                  1977, with the coming into effect of the Fishery             In the case of seabed resources, the management
                  Conservation and Management Act, which extends               area may be extended, on the ocean floor, to more
                  U.S. fisheries jurisdiction out to a maximum of 200          than 200 miles, but this issue remains to be resolved
                  nautical miles from shore. Along with the new fish-          within the framework of the ongoing Law of the Sea
                  eries jurisdictions have come increased activities           Conference.
                  within the 200-mile zone relating to oil and gas                  From considerations of the coastal belt, we turn
                  developments on the outer continental shelf, as well         to those concerning our host, the Center for Ocean
                  as to shipping developments, particularly those              Management Studies. The Center was created in the
                  associated with the importation of hydrocarbons into         fall of 1976 for the purpose of promoting effective
                  the United States. To some of us it seems likely             coastal and ocean management. The Center identifies
                  that before long U.S. jurisdiction in the 200-mile           ocean management issues, holds workshops and
                  zone may, in addition to fisheries and continental           conferences to discuss these issues, and develops
                  shelf resources, be extended also to certain aspects         recommendations and research programs to resolve
                  of pollution control, not now covered by international       them.
                  agreements.                                                       Finally, let me express my appreciation to three
                       A few -years ago, comprehensive management              people who helped to make this conference possible.
                  processes within the coastal zone (extending out to          First is Dr. John Knauss, Dean of the Graduate
                  three nautical miles from shore) were provided               School of Oceanography and Provost for Marine

                Affairs, whose brainchild the Center for Ocean
                Management Studies is, and who, for fifteen years,
                has led Rhode Island both in its oceanography
                and in its marine affairs programs. Second is Dr.
                Neils Royholm, Professor of Resource Economics,
                who, during the past year has chaired the Steering
                Committee of COMS and paved the way for its first
                annual conference. Third is Virginia Tippie, who has
                successfully served as Acting Executive Director
                of COMS, and whose energy and enthusiasm have
                contributed greatly to what we hope and expect to
                be a successful first annual conference here at
                Rhode Island.

                                                                      2

                   Management Issues in the Coastal Region

                   Robert Knecht
                   Director, Office of Coastal Zone Management, NOAA

                        For purposes    of my discussion this morning,        siting; North Carolina        commercial and sports
                   I have divided the coastal belt into three geographical    fishing, tourism.
                   regimes as follows: the Shoreland Regime, the State'            Little comprehensive planning has been accom-
                   Regime, and the Federal/International Regime. For          plished to date at the state level, but the need for
                   each of these regimes, I would like to focus briefly       such planning is growing. Ultimately, state coastal
                   on, first, the nature of the resources to be managed;      zone management programs should,contain a com-
                   second, the political and jurisdictional interests at      prehensive "wet half." In the case of state pro-
                   stake; third, management philosophy and goals; and         grams, data and informational needs are substantial
                   fourth, information, data, and planning requirements.      and largely unmet, hence these needs often are
                                                                              limiting elements.
                   Re Igime 1: Shoreland                                      Regime III: Federal/International
                        In this regime   private ownership is the pre-            Under this regime, jurisdiction (over resources)
                   dominate characteristic of the resources to be
                   managed. Use and management are principally                is clear, and extends out to 200 miles or the edge
                   affected by market forces and by local government          of the continental shelf (or further under certain
                   regulations, while the state and federal impacts           circumstances). Management- philosophy is ex-
                   are largely indirect. State coastal zone management,       pressed in a number of diverse pieces of federal
                   programs are aimed at inducing a broader view and          legislation, such as the OCS Lands Act, Fishery
                   at more effective management of the local areas.           Conservation and Man      agement Act, and marine
                   While planning requirements are substantial, data'         sanctuary provisions of the Ocean Dumping Act.
                   and information needs do not significantly limit               International ground rules are contained in the
                   management progress.                                       1958 Geneva Conventions, and the federal govern-
                                                                              ment' s management strategy is influenced both by
                                                                              foreign policy implications and by the attitudes of
                                                                              adjacent coastal states. Data, informational, and
                   Regime II: State                                           planning needs are substantial and generally unmet
                       This regime generally involves both transitional       at the federal/international levels.
                   zones - such as coastal wetland areas - and the                At least three types of linkages exist between
                   territorial sea. Jurisdiction is generally clear, except   these regimes. I would define them as physical, opera-
                   in certain wetlands or with respect   -to certain fish-    tional, and institutional.
                   eries stocks, and management goals are determined          Physical Links
                   largely by the orientation and needs of the state:
                   e.g., California - recreation and protection; Texas -          For purposes of the topic at hand, two physical
                   recreation, environment, energy, 'and industrial           linkages seem most important. They are water pollu-

                                                                            3

                  tion and fisheries. Pollution impacts link shore-based        activities in Regime III to impacts in Regimes I
                  discharges with deleterious effects on marine                 and 11.
                  resources offshore. Similarly, pollutants discharged                One could ask, at this point, does the existence
                  at sea (drill rigs, ocean-dumping, tanker operations)         of these numerous ties form a kind of de facto
                  can have adverse impacts nearshore and onshore.               coastal belt management program? I think the answer
                  In a similar way, certain fish stocks migrate between         is clear that they do not, at least not at the present
                  the estuaries and nearshore waters and offshore               time. No one, for example, would want to claim the
                  areas. Coastal habitats are linked to offshore areas          EIS process as an effective management tool.
                  through fishery migration patterns.                                 Turning now to some of the goals of an effec-
                                                                                tive management scheme, three essential areas would
                  Operational Systems                                           be: to resolve conflicts; to optimize use or produc-
                       The systems associated with the development              tion; to identify and exploit new opportunities.
                  and production of offshore oil and gas supplies link                At best, most of the institutional arrangements
                  ocean areas well at sea with shore locations. It can          now in being aid in conflict identification and, to a
                  be anticipated that offshore marine sand and gravel           certain extent, conflict resolution, but they are not
                  recovery systems as well as deepsea mining systems            well suited to capitalizing on new opportunities. This
                  will similarly link the offshore with coastal loca-           latter function generally depends upon I@aving an
                  tions. And, in a certain sense, fareways established          adequate supply of data and information upon which
                  by the Coast Guard for navigational purposes to and           to base plans and projections, all items which aye
                  from major ports constitute an operating system               weak in the present setup.
                  that bisects all three regimes.                                     What can be said with regard to future trends
                                                                                and pressures? Will they tend to woyk towards a
                  Institutional Links                                           more coherent, better coordinated coastal and ocean
                                                                                management system? Or will they be such as to tend
                       Six different or potential institutional ties            to perpetuate the existing fragmentation and single-
                  between the three regimes are relevant.                       purpose approach?
                       1. The Coastal Zone Management Act. This pro-                  it seems to me that pressures of both kinds wi       11
                  gram has as a principal objective the Ii         nking Of     exist.
                  Regimes I and 11, but extends into Regime III through               Theye will be pressures toward a more coherent
                  the federal consistency provision.                            program. Pressure will be exeyted by coastal states
                       2. The Fishery Conservation and Management               through federal consistency provisions of their
                  Act. Primarily aimed at Regime III, but can affect            coastal management program (and the Depaytment of
                  Regime 11 (and presumably Regime I) under certain             Commerce). International pressures on U.S. ocean
                  conditions.                                                   activities will be exerted through the State Depart-
                       3. The Marine Sanctuaries Program. A single              ment. The development of a more extensive marine
                  marine sanctuary can be designated over an area               sanctuary system (as a counteypoint to ocean devel-
                  encompassing all three regimes (with state approval).         opment) will force cooperative state-federal collaboy-
                       4. The Environmental Impact Statement Pro-               ation on ocean areas needing protection.
                  cess. In theory,, this process could link all three,                Counteypressures will exist as well. There is a
                  but in fact is used primarily to link proposed activi-        prevailing fear of a super ocean management agency.
                  ties in Regime III to adverse impacts in Regimes I            'Turf" problems exist at both the federal and state
                  and II.                                                       levels. Pressures may be exerted by constituencies
                       5. Pending OCS Lands Act Amendments. Here                that benefit from continued single purpose programs.
                  again, the amendments, when enacted, will increase
                  the linkage between actions in Regime III and impacts               In conclusion, it seems to me that the following
                  in Regimes I and II.                                          three factors will be important in the coming years
                       6. The Deepwater Ports Act. This legislation,            in determining the manner in which a coherent ocean
                  albeit in a somewhat limited way, links proposed              management pyogram evolves:

                                                                                4

                       1. The pace and diversity of ocean development
                  will almost certainly quicken.
                       2. The adjacent coastal states will become
                  increasingly involved in these federally controlled
                  ocean development activities.
                          a. To protect their resources.
                          b. To be able to deal with onshore impacts.
                          c. To share in the economic benefits.
                       3. As our domestic development activities
                  expand on the outer continental shelf, the inter-
                  national and foreign policy implications of these
                  activities will also grow.
                       Taken together then, these factors will tend to
                  force the United States toward a more unified coastal
                  and ocean management system. The rate at which
                  this takes place and the precise nature of such a
                  management scheme of course remain to be seen.
                      ,In my opening remarks, I have attempted to
                  provide you with my perspective of the coastal belt
                  management problem. Clearly it is strongly influ-
                  enced by my coastal zone management orientation.
                  Nonetheless, I hope that these observations will
                  contribute to your discussions over the next two days.

                                                                         5

                             Coastal Belt Uses and Needs: Fisheries

                             Brian J.. Rothschild, Director, Catherine E. Meleky, Industry Economist
                             Office of Policy Development and Long-Range Planning, National Marine Fisheries
                             Service, NOAA

                                      Any assessment of coastal belt uses and needs                                               while U.S. commercial and recreational fishing
                             must include a consideration of fisheries manage-                                                    accounted for 21 percent and 3 percent, respectively.
                             ment in the territorial sea and in the conservation                                                  Foreign fishing occurs primarily off the New England
                             zone (the territorial sea is generally considered to                                                 and Pacific coasts, especially off the coast of
                             be 0-3 miles from the coast and the conservation                                                     Alaska, as shown in Figure 2.
                             zone from 3-200 miles). Approximately 5 million                                                               The Fishery Conservation and Management Act
                             tons of fish are taken each year from waters within
                             200 miles of the coast. The distribution by use group                                                Figure 2. U.S. Commercial, U.S. Recreational, and Foreign Catch, by Area,
                             and location is shown in Figure 1. The U.S. com-                                                     by Distance from Shore.'
                             mercial catch accounts for approximately 70 percent                                                                                                                    Pacific Coast
                                                                                                                                                                                                    and Alaska
                             of the total in the territorial sea, while recreational                                                            2300 -
                             fishing accounts for about 30 percent. Historically,                                                                                                          Gulf of
                             foreign fishing in the U.S. fishery conservation zone                                                               1300 -   I                                 Mexico
                             accounted for about 76 percent of the total catch                                                                   800 -      New England
                                                                                                                                           V)
                                                                                                                                           Z
                                                                                                                                           0
                             Figure 1. U.S. Commercial, U.S. Recreational, and Foreign Catch, by                                                                                            s
                             Distance from Shore.'
                                                                                                                                                  600
                                             4-                                                                                            LJ
                                                                                                                                           IF

                                                                                                                                           Z                         Middle
                                                                                                                                                                       Atlantic
                                      V)                                                                                                          400
                                                                                                                                           0                            7          South
                                      Z      3
                                      0
                                                                                                                                                                                  Atlantic

                                                                                      Foreign                                                      200-
                                      W      2

                                      Z                                                                                                                            7
                                                            US.Commercial
                                      _j
                                      _j

                                                                                                                                                               n   0     ro 0          0     t) 0      to  0
                                                                                                                                                                1  0      1 0           0     1 0          0
                                                                                   U.S.Commercial                                                              0   1@    0              1@   0    1@       cli
                                                            U.S.Recreallionol                                                                                                In
                                                                                                                                                                           MILES     FROM     SHORE
                                                                                   USIRecreational
                                                                  I                       r                                                                [3 = Commercial       0 = Recreational        E] = Foreign
                                                              0-3 MILES             3-200MILES
                             "U.S. commercial catch, 1976; U.S. recreational catch. 1970; foreign catch,                          'U.S. commercial catch,         1976; U.S. recreation      al catch, 1970; foreign catch,
                                                                                                                                                                                  1w
                                                                                                                                                              -j

                                                                                                                                                                                                       A

                             1975.                                                                                                1975.
                             Source. U.S. Department ofCommerce, 1970: US, Department ofCommerce, 1976,                           Source. US. Department ofCommerce, 1970, US. Department ofCommerce, 1976,
                                      U.S. Department of Commerce, unpublished statistics, 1975.                                            US. Department of Commerce, unpublished statistics, 1975.

                                                                                                                                 6

                            Table 1. Location of Commercial Catch for Major Finfish and Shellfish,                    Figure 3. Number of Anglers and Weight of Recreational Catch, 1960,
                            1976.                                                                                     1965,   1970.

                                                                                                                                     10 -
                                                              Catch        Catch                   Percent of                                          Recreational Catch                       0
                                          Species             0-3          3-200        Total         Catch                                                                                     0
                                                              miles        Miles                      0-3
                                                                (Thousand Metric Tons)                Miles                   V)     a
                                                                                                                              Z
                                                                                                                              0
                                                                                                                                                                   Numbers of Anglers
                            Finfish:
                            Alewives                                                                                          FX
                                                              24.6         - - - -      24.6       100                        l`_
                                                                                                                              W      6--
                            Bluefish                          4.2          0.5          4.7        89                         2
                            Croaker                           8.6          5.6          14.2       61                         a
                                                                                                                              Z
                            Cod                               2.9          27.8         30.7          9                       <
                                                                                                                              (A
                            Flounder. Atlantic                                                                                D
                                                                                                                              0      4--
                              and Gulf                        9.6          8.6          18.2       53                         3:
                            Flounder, Pacific                 3.5          10.8         14.3       24
                            Sea Herring                       60.1         8.3          68.4       88
                            Mackerel, Jack                    2.7          14.8         17.5       is                                2--
                            Mackerel, Spanish                 2.3          4.1          6.4        36
                            Menhaden                        828.6          96.5      925. t        90
                            Mullet                            13.7         0.1          13.8       99
                            Salmon, King                      10.5         5.1          15.6       67
                            Salmon, Chum                      23.9         - - - -      23.9       100                                              1955           60            65            70
                            Salmon, Pink                      42.3         2.7          45.0       94                                                             YEAR
                            Salmon, Red                       37.7         - - - -      37.7       100                Source., US. Department of Commerce, 197a
                            Salmon, Silver                    10.9         7.1          18.0       61
                            Sea Trout, Gray                   6.0          3.4          9.4        64
                            Striped Bass                      2.6          0.1          2.7        96                 except if the secretary finds that                             the fishing in
                            Shellfish:                                                                                a fishery is covered by a fishery management plan
                            Clam, Hard                        7.1          - - - -      7.1        100                implemented under this Act, is engaged in predomi-
                            Clam, Surf                        3.0          19.3         22.3       13
                            Crab, Blue                        51.1         0.2          51.3       99                 nately within the fishery conservation zone and
                            Crab, Dungeness                   13.0         3.2          16.2       80                 beyond such zone." As shown in Table 1, many major
                            Crab, King                        9.6          38.4         48.0       20                 species of fish are caught both in the territorial
                            Crab, Snow                        5.5          31.1         36.6       15
                            Lobster, American                 10.5         3.9          14.4       73                 sea and in the conservation zone. Since the FCMA
                            Oyster Meat                       24.7         - - - -      24.7       100                provides no exact definition of "predominately,"
                            Shrimp                            79.0         104.0      183.0        43                 the problem of classifying each fishery exists.
                            Source., US Department of Commerce, 1976                                                  Further, only fisheries that are considered as pre-
                                                                                                                      dominately within the conservation zone are subject
                            (FCMA)l has created, among other things, the insti-                                       to the full management authority of the FCMA.
                            tutional basis for management of fisheries by estab-                                              If, for example, predominately were to refer to
                            lishing (1) jurisdiction over fishery resources,                                          catches greater than 50 percent of the total catch,
                            (2) eight Regional Councils, and (3) guidelines for                                       then 90 of the 117 species of recreational and
                            the development of systematic management plans for                                        commercial fish at present caught within 200 miles
                            each fishery.                                                                             would be classified as occurring predominately
                                  Under the Fishery Conservation and Manage-                                          within the territorial sea, or approximately 2/3 of
                            ment    Act, fisheries may be classified in two ways:                                     the domestic catch would be taken predominately
                            (1) those that are fished "predominately" in the                                      .   in the territorial sea.
                            conservation zone and (2) those that are fished                                                   Recreational fishing makes the problems asso-
                        -"predominately" in the territorial sea. Specifically,                                        ciated with fisheries management in the conservation
                            Section 306 (a) & (b) of the Fishery Management                                           zone and territorial sea more complex. Estimates are
                            and Conservation Act states, ". . . nothing in this                                       Uiat the U.S. recreational catch accounts for about
                            Act shall be construed as extending or diminishing                                        one-half of the total food-fish catch in the terri-
                            the jurisdiction of any State within its boundaries. . ."                                 torial sea. Recreational fishing, to a lesser extent,
                                                                                                                                                       R

                                                                                                                    7

                      Figure 4. Number of Commercial Fishermen and Weight of Commercial               Figure 5. Bluefish: U.S. Commercial Catch, 1956-1976, and U.S. Recrea-
                      Catch, 1950, 1955. 1960, 1965, 1970, 1973.                                      tional Catch, 1965 and 1970.
                                                                                                                     60                                   0
                                  300 --                                                                             40                       0

                                                                                                                     5
                              0
                                  250
                                                         COMMERCIAL CATCH             20

                                                                                                                     4
                                  200
                              0
                                                                                          0
                                                                                        151-
                                                                                                               Z
                                                                                                               0
                                  150 -

                                                                                          Z

                                          NUMBER OF
                                                                                       io,                     W
                                            COMMERCIAL
                                  too          FISHERMEN
                                                                                                                     2
                                                                                                               Z

                                                                                                               0
                                                 1
                                     1950       55        60        65       70    73
                                                          YEAR
                      Source. US Department of Commerce, 1976.

                      also takes place in the conservation zone. From 1955                                             19 56       610       65          70          7576
                      to 1970, the number of recreational fishermen                                                                          YEAR
                      increased over 100 percent and expenditures for
                      recreational fishing increased over 150 percent.                            2                       9 -Commercial          0= Recreational
                      Preliminary estimates of the number of recreational                             Source. U.S. Department ofCommerce, 1970: US. Department ofCommerce, 1974:
                      fishermen and expenditures for recreational fishing                                      U.S. Department of Commerce. 1975, U.S. Department of Commerce. 1976.
                      indicate that a further increase took place in 1975.
                             Figure 3 shows the quantity of recreational catch                        Figure 6. Flounder, Summer: U.S. Commercial Catch, 1956-1976, and U.S.
                      and the number of anglers engaged in recreational'                              Recreational Catch, 1965 and 1970.
                      fishing. As shown by the trend lines in Figure 3,                                              17                      0
                      the number of recreational anglers is increasing
                      at a greater rate than the catch. Figure 4 shows that                                          12                                  0
                      the U.S. commercial catch and the number of com-                                               11
                      mercial fishermen decreased by 20 percent, while                                               10
                      the commercial catch did not change appreciably                                          0
                                                                                                               Z
                      (2 percent). Similarly, an increase in the number                                        0
                      of fishermen from 1970 to 1973 did not greatly                                                 7.5--
                      increase the quantity of fish caught. The same trend
                                                                                                               W
                      occurs if the        number of vessels is substituted for
                                                                                                               Z     5
                      the number of fishermen. If 1950-73 catch and effort                                     4
                                                                                                               Ln
                                                                                                               D
                      patterns continue in the future, certain inferences                                      0
                      can be drawn: (1) increased fishing effort (whether
                      commercial or recreational) will not substantially                                             2-5
                      increase the total catch, and (2) increased fishing
                      effort will result in division of a more or less fixed
                      total catch among a greater number of participants.                                              1956      .60         65         70          7576
                             Figures 5-14 indicate trends in stocks of major                                                                YEAR
                      species from 1950 to 1975. The catch of several major                                                Commercial         0-Recreollionol
                      species has increased while, for others, the catch                              Source., US. Department ofCommerce, 1970: US. Department ofCommerce, 1974,
                      has decreased or remained stable. Various environ-                                       US. Department of Commerce. 1975, US. Department of Commerce. 1976.

                                                                                                      8

                          Figure 7. Flounder, Winter: U.S. Commercial Catch, 1956-1976, and U.S.            Figure 9. Menhaden: U.S. Commercial Catch, 1956-1976.*
                          Recreational Catch, 1965 and 1970.                                                             looo__

                                                                                0

                                  Z     15--
                                                                                                                     V)  800
                                                                      0                                              Z
                                                                                                                     0
                                        12
                                  W
                                  I
                                        9                                                                            W   600
                                  Z
                                  4
                                                                                                                     Z
                                  0     6--                                                                          <
                                                                                                                     D
                                                                                                                     =0  400--
                                        3

                                                                                                                         200
                                            1956       60          65          70          7576

                                                                   YEAR

                                           e -Commercial              0 - Recreational
                          Source., US. Department of Commerce. 1970,' US. Department of Commerce, 19 74;
                                                                                                                               1956        60         65          70          7576
                                 US. Department of Commerce, 1975: US Department ofCommerce. 1976                                                     YEAR
                                                                                                            *Little or no recreational catch
                          Figure 8. Gray Sea Trout: U.S. Commercial Catch, 1956-1976, and U.S.              Source., US. Department of Commerce, 1974., US. Department of Commerce, 1975;
                          Recreational Catch, 1965 and 1970.*                                                        US. Department of Commerce, 1976.

                                                                                                            Figure 10. Mullet: U.S. Commercial Catch, 1956-1976, and U.S. Recrea-
                                                                                                            tional Catch, 1965 and 1970.

                                        8                                                                                20 --

                                 In
                                 Z                                                                                   in
                                 0
                                                                                                                     Z
                                                                                                                     0
                                                                                                                     F-  15
                                 Fr     6                                                                            y
                                 l-                                            0                                     cr
                                 W
                                                                                                                     W

                                 Z
                                 <                                                                                   Z   10__                        0
                                 (f)    4
                                 D
                                 0
                                                                                                                     D
                                                                                                                     0

                                        2--

                                                                   0
                                                                                                                                                                 0

                                           1956       60           65         70          7576                               1956        60         65           70          7576
                                                                   YEAR                                                                            YEAR
                                             0 =Commercial           0 = Recreational                                        0 = Commerc ial          O= Recreational
                          'Weakfish                                                                         Source: U.S. Department of Commerce, 1970; US. Department ofCommerce. 19 74;
                          Source. US. Department of Commerce, 1970., US. Department ofCommerce, 1974,                US. Department of Commerce. 1975; US. Department ofCommerce, 19 76,
                                 U.S. Department of Commerce, 1975., US. Department of Commerce, 1976.

                          mental and biological factors, as well as commercial                              and wetlands is caused primarily by the maintenance
                          and recreational fishing, may account for the trends.                             and protection of navigation, landfill operations, and
                                 As well as adding to problems associated with                              solid waste disposal. The areas reclaimed are gen-
                          the growth in fishing intensity, an increase in human                             erally the highly productive tidal marsh which is of
                          population density in the coastal zone has con-                                   primary importance to estuarine ecology.
                          tributed to increased pollution rates and the destruc-                                  The Report of the Secretary of the Interior to the
                          tion of wetlands which are thought to be associated                               U.S. Congress indicated that 7 percent of the im-
                          with fish production. The destruction of estuaries                                portant wildlife habitat had been dredged and/or
                                                                               0

                                                                                                          9

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                          Table 2. Preliminary Fishery Management Plans and Final Fishery                     Figure 15. Catch by Foreign Vessels in the Conservation Zone, 197 5, and
                          Management Plans.                                                                   Allowable Levels of Foreign Fishing Under FCMA, 1977.

                                                                                                                         2500 -
                          Preliminary Fishery Management Plans

                          Trawl Fisheries of Washington, Oregon, and California
                          Trawl Fisheries and Herring Gillnet Fishery of Eastern Bering Sea and                          In 2000 -
                              Northeastern Pacific                                                                       Z
                                                                                                                         P
                          Sablefish Fishery of the Eastern Bering Sea and Northeastern Pacific                           y                                        1975
                                                                                                                         (r                                                  1977
                          Trawl Fishery of the Gulf of Alaska                                                            UJ 1500
                                                                                                                         2                                      Foreign
                          Snail Fishery of the Eastern Bering Sea                                                        0
                                                                                                                         Z                                      Catch       Foreign
                                                                                                                                                                          Allocation
                          Eastern Bering Sea (King and Tanner Crab Fisheries)
                                                                                                                         D
                                                                                                                         0
                          Shrimp Fishery of the Eastern Bering Sea and Gulf of Alaska                                    lOOO__
                          Seamount Groundfish Fishery of the Pacific
                          Hake Fisheries of the Northwestern Atlantic                                                                 1975
                          Foreign Trawl Fisheries of the Northwestern Atlantic (incidental catching                      500 -_      Foreign
                              of finfish)                                                                                            Catch
                                                                                                                                                 1977
                          Mackerel Fishery of Northwestern Atlantic                                                                             Foreign
                                                                                                                                              I AULacation                          I
                          Squid Fisheries of the Northwestern Atlantic
                                                                                                                                     ATLANTIC OCEAN               PACIFIC OCEAN
                          Final Fishery Management Plans                                                      Source., US. Department ofCommerce, unpublished statistics, 1975: US. Depart-
                          Commercial and Recreational Salmon Fisheries off the coasts of Washing-                        ment of Commerce, 1976.
                              ton, Oregon, and California
                          Atlantic Fisheries (Atlantic Groundfish Plan)                                       Figure 16, Catch by Soviet Vessels in the U.S. Fisheries Conservation Zone.
                                                                                                              by Area, 1973-1977.

                          high water-use industries as paper, chemical, and                                                 500--                            Alaska
                          textile manufacturing is projected.
                                With the increase in economic activity, pollution
                          and increased industrial use of estuarine waters                                                  400 --
                          occurs. The Federal Water Pollution Control Admini-                                            Z
                                                                                                                         0                                   East Coast
                          stration estimates that, by 1980, municipal wastes
                          generated by the estuarine zone population will
                                                                                                                            300--
                          require the use of 2,130 billion gallons of water
                          per year and will produce 3.6 billion pounds of waste                                          Z
                          solids per year.'                                                                              0  200 --
                                                                                                                                                             West Coast
                                Efforts to manage fisheries to prevent the deple-
                          tion of the resource within the conservation zone,
                          under the FCMA, include the creation of preliminary                                               100--
                          and final management plans. Preliminary plans for
                          thirteen fisheries and several final management
                          plans have been developed (Table 2). Other efforts
                          include limitations on the allowable levels of foreign                                                     1973       74           75           71          77
                          fishing. Preliminary indications for 1977 are that                                                                                 YEAR
                          total foreign catch will have decreased. This has                                   Source. US. Department of Commerce. unpublished statistics.    1977.
                          increased the anticipated catch per unit effort by
                          some of the larger foreign fleets. As illustrated in                                the Pacific Ocean, however, was approximately 80
                          Figure 15, the 1977 allowable level of foreign fishing                              percent of        the catch by foreign vessels in 1975.
                                                                                                                                                             Ala
                                                                                                                                                                ,ko
                                                                                                                                                                t@
                                                                                                                                     <:                  @E       Coast

                                                                                                                                                             West .as,

                          under FCMA for the Atlantic Ocean was about 1/3                                     The decline        in Soviet and Japanese catches in the
                          the catch by foreign fishing vessels in 197 5. The 197 7                            U.S. conservation zone from 1973 thru 1977 is shown
                          allowable level of foreign fishing under FCMA for                                   in Figures 16 & 17. The catch of Soviet vessels

                                                                                                          11

                            Figure 17. Catch by Japanese Vessels in the Fisheries Conservation Zone,                  Figure 19. Average Monthly Number of Soviet Fishing Vessels in the
                            by Area 1973-1977.                                                                        U.S. Fisheries Conservation Zone, by Area, 1973-1977.
                                         2000--                                                                                        200 -

                                                                                 k.
                                          1500--                                                                                W
                                                                                                                                (f)    150--
                                                                                                                                LO
                                                                                                                                Ld
                                                                                                                                >                         East Coast
                                          1100                                                                                  1.
                                     Z                                                                                          0                                                           Alaska
                                     0
                                                                                                                                Or
                                          1000                                                                                  W
                                     y                                                                                          M      100--
                                     ar                                                                                         2
                                                                                                                                D
                                     W

                                     Z                                                                                                 50--               --o-west coast
                                     V)
                                     D
                                     0

                                           500

                                                                                                                                              1973          74           75            76           77
                                                                            East Coast                                                                                   YEAR

                                           250--
                                                                                                                        Source: U.S. Department of Commerce, unpublished statistics, 1973-1977
                                                                           West Coast
                                                                                                                        Figure 20. Average Monthly Catch per Soviet Fishing Vessel in the
                                                  L- 1                                      i                           Fisheries Conservation Zone, by Area, 1973-1977.
                                                  1973          74           75            76           77
                                                                                                                                       1250 -
                                                                             YEAR
                                                                                                                                                            Ak\
                            Source: U.S. Department of Commerce, unpublished statistics, 1973-1977.                                                                  Total
                            Figure 18. Average Monthly Number of Japanese Fishing Vessels in the                                       1000--
                            U.S. Fisheries Conservation Zone, 1973-1977.

                                          250 -
                                                                                                                                Z      750--

                                                                              laska                                             Q                                    Alaska

                                           200--                                                                                W
                                                                                                                                       500--"
                                     -j
                                     Ld
                                     W
                                     W
                                     >                                                                                                                            East Coast
                                     LL    150
                                     0                                                                                                 250--e-

                                     I

                                     Z      100--

                                                                                                                                              1973          74           75           76            77

                                                                                                                                                                       YEAR
                                            50-                                                                         Source., US, Department of Commerce, unpublished statistics, 1973-1977.

                                                                    East Coast         Wes Coast
                                                                                                                        catch in East Coast and West Coast waters has been
                                                                 i            T
                                                  1973          74           75            76            77             constant.
                                                                            YEAR                                                The average              monthly number of Japanese
                            Source., US. Department of Commerce. unpublished statistics, 1973-1977.                     vessels fishing in               the U.S. conservation zone has
                                                                                                                        been constant from 1973 to 1977 except in Alaskan
                            declined rapidly from 1973 thru 1977 in the East                                            waters (Figure 18). In 1977, the average monthly
                            Coast and Alaskan waters and declined slightly in                                           number of Japanese fishing vessels in Alaskan waters
                            1977 in West Coast waters. The catch by Japanese                                            decreased rapidly. The average monthly number of
                            vessels in the U.S. conservation zone declined rapidly                                      Soviet fishing vessels along the West Coast and
                            from 1973 to 1977 in Alaskan waters. The Japanese                                           Alaska increased from 1973 to 1976, then declined
                                                                                                                                                          E. t Coast

                                                                                                                                                                                              as".

                                                                            A

                                                                                                                      12

                          Figure 21. Average Monthly Catch per Japanese Fishing Vessel in the                      and a slight decline in Soviet fishing effort
                          Fisheries Conservation Zone, by Area, 1973-1977.                                                The patterns for management of fisheries within
                                         1500-                                                                     the territorial sea, however, are less definite. Some
                                                                          Total                                    fisheries are managed under comprehensive plans,
                                         looo__                                                                    while others are managed under regulations that have
                                                                                                                   a less than satisfactory scientific basis. Some fish-
                                 V)                                                                                eTies are continually being researched and are with-
                                 Z       750
                                 0                                                                                 out effective management, while others are not
                                                                           Alaska                                  managed at all.
                                 U
                                                                                                                          The problem of concurrent jurisdiction by
                                 W
                                         500--                            West coast                               several states over a particular fishery may be a
                                                                                                                   major impedance to management. Figure 22 illus-
                                         250 - -                                                                   trates this situation. Bluefish, for example, occur in
                                                                                                                   the waters of about 14 states while menhaden occur
                                                                          East C.s
                                                                                   't                              in the waters of about 16 states. This accounting
                                                                                                                   does not separate species or races or geographically
                                                1973         74          75           11          77               isolated stocks. Since each individual state creates
                                                                        YEAR
                          Source: US. Department of Commerce. unpublished statistics, 1973-1977                    laws for fisheries management, differing regulations
                                                                                                                   sometimes exist among states. For example, Table 3
                          in 1977 (Figure 19). Soviet vessels fishing in East                                      shows that for striped bass in various Northeast
                          Coast waters declined from 1970 to 1973. Following                                       states, size limits vary from Maine and South
                          these trends, the Japanese and Soviet catches and                                        Carolina, which have no limitations, to New Jersey,
                          efforts in the conservation zone might be expected                                       which requires the fish to be 12 inches to be
                          to decrease. Preliminary indications of Japanese and                                     retained by a recreational fisherman. Some states
                          Soviet fishing effort (Figures 20 & 21) show a                                           have divided authority Within the state, which adds
                          slight increase in the total Japanese fishing effort                                     further difficulties to fishery management in that

                          Figure 22. Fisheries Management, State Jurisdiction, by Species, 1976.

                                                                                            ngeness Crab                Bluefish

                               Salmon

                                                                                                                                                                                 Menhaden

                          Source: US Department of Commerce, 1976.

                                                                                                               13

                        Table 3. Size Limits for Striped Bass in Various Northeast States.                    Figure 23. Management Budget and Total Value of Marine Catch for
                                                                                                              Several States.
                                                                                                                             125 -
                        State                                 Regulation

                        Maine                                 No Limit
                                                                                                                              100--                                   0
                        New Hampshire                         Minimum:     16 inches to fork of tail
                        New York                              Minimum:     16 inches to fork of tail
                                                                                                                         0
                        New Jersey                            Minimum:     18 inches, commercial                         0
                                                                                                                         q    75
                                                                                                                         0
                                                                           12 inches, recreational                       0
                                                              Maximum:     20 pounds in Delaware

                                                                           River
                                                                                                                              50-
                        Maryland                              Minimum:     12 inches
                                                                                                                         W
                                                                                                                         Z
                                                              Maximum:     15 pounds,                                    cr
                                                                                                                         <
                                                                           Match I - April 30;                           2     25--
                                                                           1 per day over 32 inches
                        Delaware                              Minimum:     12 inches

                                                              Maximum: 20 pounds in Delaware
                                                                           River                                                        100                400 1000           2000
                        Virginia                              Minimum:     14 inches to tip of tail                                             MANAGEMENT BUDGET($1,000)
                                                              Maximum: 2 per day over 40 inches
                        North Carolina                        Minimum:     12 inches*                         Source: U.S. Department of Commerce. 1977.
                        South Carolina                        No Limit                                        Figure 24. Management Budget and Enforcement Budget for Fisheries
                        *Virginia-North Carolina Agreement, limit 4, minimum 20 inches, on the                Management for Several States.'
                        Dan River, from the Banister River to the Brantley Steam Plant Dam.                                 2500

                        state. The level of funding may be a further cori-                                                  2000--
                        straint in many of the states. In Figure 23, the                                                 -
                                                                                                                         0
                                                                                                                         0
                        management budget of several states is plotted                                                   q
                        against the value of the catch and considerable                                                      1500--
                                                                                                                         W
                        variability is noted among the states.
                                                                                                                         (D
                                In some cases, a high proportion of the total
                                                                                                                         Z
                                                                                                                         LU
                        management expenditure goes to enforcement                                                       2   1000--
                                                                                                                         LU
                                                                                                                         U
                        (Figure 24).                                                                                     Ir
                                                                                                                         0
                                                                                                                         LL
                                                                                                                         Z
                                Currently, a number of institutions exist that                                           LU
                        may deal with the territorial sea management. These                                                   500--
                        are:
                                1. The states. Each state has the authority to
                        manage fisheries within its legal boundaries.                                                                   100               400      1000        20'00
                                2. Interstate Marine Fisheries Commissions.                                                                       MANAGEMENT BUDGET ($1,000)
                        Three Interstate Marine Fisheries Commissions, the                                    'The line is provided as an index to show an equal apportionment between
                        Atlantic States Marine Fisheries Commission, the                                      the enforcement budget and the management budget.
                        Pacific States Marine Fisheries Commission, and the
                        Gulf States Marine Fisheries Commission were                                          source'us    Department of Commerce. 1977.
                        established to develop a joint program for the pro-                                   Under FCMA, the Regional Fisheries Management
                        motion and protection of marine fisheries. Regulatory                                 Councils will prepare, monitor, and revise manage-
                        management authority may be granted to the com-                                       ment plans for fisheries to achieve and. maintain
                        missions by member states.                                                            the optimum yield from each fishery, while prevent-
                                3. Regional Fisheries Management Councils,                                    ing overfishing of the fish stocks.

                                                                                                          14

                          4. State-Federal Fishery Management Program.                        Fisheries of the United States, 1975. NOAA, NMFS. Wash-
                    These programs were developed by the National                             ington D.C.: Government Printing Office, 1975.
                    Marine Fisheries Service to advise the states and                         Fisheries of the United States, 1976. NOAA. NMFS. Wash-
                    assist them in cooperating among themselves on                            ington D.C.: Government Printing Office, 1976.
                    the management of important interstate, marine                      U.S. Department of the Interior. The National Estuarine Pollu-
                                                                                              tion Study. Report of the Secretary of the Interior to the
                    resources. This program includes interstate fish-                         U.S. Congress. Washington D.C.: Government Printing
                    eries that exist inside and outside the territorial                       Office, 1970.
                    sea (although the majority are within the territorial
                    sea). Funding for the development of such manage-
                    ment is available; however, no specific legislative
                    authority exists for this program.                                   Notes
                          5. The Coastal Zone Management Program. The                    1. U.S. Congress, House, H.R. 200, Public Law 94-265, 94th Cong.,
                    Coastal Zone Management Program provides for state                         13 April 1976.
                    management programs to determine objectives,                         2. U.S. Department of Commerce, 1976.
                    policies, and standards to guide public and private                  3. U.S. Department of Interior, 1970.
                    uses of lands and waters in the coastal zone. The                    4.       1970.
                    Coastal Zone Management Act provides grants to
                    accomplish the above objectives for (1) development
                    of coastal zone plans, (2) their implementation,
                    (3) the execution of the coastal energy impact pro-
                    gram, and (4) research studies and training to
                    support state coastal zone management plans and
                    coastal zone management. To date, the coastal zone
                    funding has not been applied to interstate fishery
                    management.
                          At present there is no clear integration of these
                    five counterparts. Thus, while the patterns for fishery
                    management appear to. be set in the conservation
                    zone, effective management of the fisheries of the
                    territorial sea will most likely entail the creation
                    of a method for integrating the resources of the
                    individual states, the Interstate Marine Fisheries
                    Commission, the Regional Fishery Management
                    Councils, the State-Federal Fishery Management
                    Program, and the Coastal Zone Management Program.
                    In this way, focus may be directed to the contem-
                    porary imperative of making better and more cost-
                    efficient management decisions for our fishery
                    resources.

                    Literature Cited

                    U.S.  Department of Commerce. 1970 Salt-water Angling Survey.
                          National Oceanic and Atmospheric Administration (NOAA).
                          National Marine Fisheries Service (NMFS). Washington
                          D.C.: Government Printing Office, 1970.
                          The United States Marine Fishery Resource. NOAA. NMFS.
                          Washington D.C.: Government Printing Office, 1974.

                   Coastal Belt Uses and Needs: Oil and Gas

                   W. L BeM
                   Senior Staff Environmental Specialist, Shell Oil Company

                        The primary @purpose of my being here today             area of most interest to this audience, in view of the
                   is to discuss with you the needs of the oil industry         lease sale in the mid-Atlantic last August, the still-
                   in the coastal zone. At present, oil and gas supply          pending litigation on that sale, and the sale scheduled
                   75 percent of our energy and will continue to be our         for November 1977 in the North Atlantic. The idea
                   dominant energy source for the rest of the century.          that there might be oil or gas deposits off the
                   Our problem is to continue to find and produce new           Atlantic coast has been around for many years, but
                   and reliable sources of these substances until alterna-      only recently has it taken on the proportions of a
                   tive sources can be developed.                               national priority.
                        Although the future prospects of offshore oil and             Oil development off the East Coast of the United
                   gas development on the Atlantic coast will likely            States is often viewed in exaggerated terms. To some,
                   come to your minds immediately, I should point out           offshore oil exploration and development means
                   that many Oil-Telated activities are already present         heavy industrial activity upsetting traditional life-
                   in the coastal zone. Historically, a large portion of        styles and harming the area's environmental re-
                   the industry's refining capacity, product storage and        sources. At the other extreme, offshore oil and gas
                   distribution facilities, and product and crude oil           development is viewed as an economic panacea,
                   transport have been located in or adjacent to what           with new jobs and revenues propelling a region
                   we now identify as the coastal zone. These facilities        suffering from chronic unemployment and economic
                   were located near the coast for sound economic               ill health into a new era of prosperity.
                   reasons. An efficient, water-based transportation                  In reality, neither view is correct. The arrival
                   system to move the vast quantities of petroleum              of the off shore oil industry will not bring with it
                   products and fuel directly benefited the consumer.           serious environmental consequences. And, while it
                   And as our dependence on imported oil and petro-             will bring jobs, it won't mean instant wealth or a
                   leum products grows, the need for these kinds of             "boom town" bonanza. As a starting point, it is
                   facilities will increase.                                    important for all of us to understand just what OCS
                        But let's focus our attention for the moment on         development will and will not do, so that any evalua-
                   the new activities associated with developing oil            tion of these effects or benefits is balanced and
                   and gas resources on the outer continental shelf -           objective. OCS development is too important to be
                   activities which have attracted the attention of the         decided by emotion and wild conjecture. This is
                   various local, state, and federal government bodies          especially true when discussing the subject of this
                   which have the responsibility for planning and               conference: coastal belt uses and needs.
                   regulating them.                                                   To gain insight into probable developments,
                        As most of you know, the most promising area            let me attempt to answer four questions:
                   for finding new domestic supplies of oil and gas is                1. What is the justification for these activities?
                   the outer continental shelf. The Atlantic OCS is the               2. What are the specific industry needs?

                                                                               16

                        3. When will the various activities occur?            specific needs which must be provided for in the
                        4. What are the probable impacts?                     coastal areas to support outer continental shelf oil
                        First, what is the justification? Today, the   U. S.  ac 'tivities. For purposes of this discussion, I have
                   is using about 18 million barrels of oil a day, 44         divided these activities into two phases. The first
                   percent of which is imported. That percentage is           phase is exploration. The second phase, which is
                   rising fast. Shell believes that this increased reliance   contingent upon the success of the exploratory effort,
                   on imports must and can be slowed, in spite of an          encompasses development and production. Let's
                   expected growth in domestic demand of about 3              look at these phases in sequence. And as we look,
                   percent per year. But we must first accomplish several     we will get a feel for time of occurrence and likely
                   major goals: We must adopt the conservation ethic          impacts.
                   explicit in President Carter's energy message. We               Seismic information is the fundamental presale
                   must explore extensively onshore and offshore in           exploration tool to locate offshore formations favor-
                   the U.S., particularly in Alaska, off the West Coast       able for the accumulation of oil and gas. This is
                   and off the Atlantic. Third, we must substantially         the first step in determining if commercial quantities
                   increase coal production. Lastly, and this may sound       of oil and gas are present and guides us in deter-
                   exaggerated, we must complete the equivalent of one        mining how much to bid in a lease sale. Seismic data
                   nuclear- powered, 1,000 megawatt generator plant           acquisition began in the Atlantic as far back as 1967.
                   every two weeks thro'ughout the 1980s.                     As many as six seismic vessels have worked simul-
                        A cut in any of these factors, we believe, must       taneously along the Atlantic coast. While this activity
                   be replaced by increased imports of foreign oil. Why?      is largely complete, it will continue to some degree
                   Simply because alternative energy sources cannot           throughout the life of oil development. When in
                   be developed and brought into production fast              operation, a seismic vessel requires port facilities
                   enough to improve our near-term supply, Thus,              in the area of operation for biweekly crew changes
                   development of the OCS is an important factor in           and supplies. Beneficial impacts are limited to those
                   solving our energy problem.                                connected with dock rental and supply. opportunities
                        With this background let's look at the potential      for direct employment are very limited. Similarly,
                   for oil and gas supply in the Atlantic OCS. The U.S.       shoreside negative impacts are negligible.
                   Geological Survey estimates there may be from 2 to              The next exploratory operation is drilling to
                   4 billion barrels of oil, and 5 to 14 trillion cubic       locate and determine the size of oil and gas resources.
                   feet of gas in the Atlantic offshore. Shell believes       However, this activity cannot proceed until a sale
                   that no one can accurately predict the amount of           has been held and an operator has obtained from
                   oil and gas which might be present in any one specific     the EPA, USGS, Corps of Engineers, etc., the necessary
                   area. We prefer to look at the overall opportunities       permits for the acreage on which he was the success-
                   in the U.S., then pinpoint locations where our geo-        ful bidder.
                   logical studies suggest the best odds for finding               A semisubmersible or floating drilling rig is
                   petroleum. However, we do believe that 60 percent          normally used in offshore water depths from 150
                   of new oil discoveries and 35 percent of new gas           to 1,200 feet. The average cost for such a rig,
                   discoveries will come from the OCS.                        including rig supplies and transportation, is between
                        Viewing the prospects in this manner, we are          $45,000 and $65,000 a day. This rig normally employs
                   interested in all three areas of the Atlantic which        50 to 60 workers. It seems probable that five or
                   show promise - the Georges Bank area off New               six rigs would be in operation at the same time
                   England; the Baltimore Canyon off New Jersey, New          in the Baltimore Canyon, whenever the litigation is
                   York, Maryland; and the Southeast Georgian Embank-         settled and permits are finally issued. This kind
                   ment and the Blake Plateau in the South Atlantic.          of rig would also be used in the Georges Bank.
                   Each of these areas should be explored and developed            Looking at onshore activity to support the
                   as soon as practical to aid in the solution of our         exploratory drilling operation, the supply base we
                   energy problem.                                            used near Tampa, Florida, to conduct our first off-
                        Now let's talk about the second question: the         shore Florida exploratory drilling, was typical. The

                                                                           17.

                   drill site was located some 50 miles west in the             also ferry personnel to and from the offshore sites
                   Gulf of Mexico. The base, shared by Shell and two            from these bases.
                   contractors, employed 32 people, including 12 local               In the development stage, the work boat previ-
                   residents, and covered less than 10 acres. Unfortu-          ously mentioned is again employed to perform the
                   nately, no oil or gas was found offshore, and this           same essential' supply support function for the
                   supply base is no longer in use.                             offshore production platform. The helicopter is also
                        Closer to New England is the former Quonset             employed in the same manner to ferry the platform
                   Point Naval Air Station at Davisville, Rhode Island.         work crews to and from theiY offshore production
                   Shell rents approximately five acres of dock and             location. A pipe lay barge is used to install pipe-
                   storage space that would be used as our initial base         lines in offshore waters between the production
                   for exploratory activities in the mid-Atlantic.              platform and shoreline processing facilities.
                        A work boat carries drill pipe, machinery, mud               The shore where the pipeline crosses is un-
                   materials, and other supplies to the drilling rig.           disturbed, except for markers to indicate the pipe-
                   A typical boat has a crew of eight and measures about        line's position.
                   180-200 feet in length. Crew personnel are trans-                 A Shell gas plant in Texas typifies the type of
                   ported to and f   'Yom the offshore rig by helicopter.       onshore facility one might expect along the Atlantic
                   In the Baltimore Canyon, our activity would be some          coast to handle potential gas production. The area
                   60 miles off the New Jersey shore. Thus, we plan             covered is about 20 acres. A plant this size could
                   to have a helicopter base site in the Atlantic City,         process almost all of the gas that may be found
                   New Jersey area.                                             in the Baltimore Canyon or Georges Bank region.
                        The impact of the initial exploratory effect is         It isn't necessary to locate a gas plant at oceanside.
                   slight. Activities in the coastal area are all related       A plant can be built many miles inland, away from
                   to the support base. Now, let's move to the develop-         heavily populated or recreational areas.
                   ment and production phase. This assumes, of course,               An onshore pumping station is small in con-
                   that a commercial find is made. The number and               figuration. Its purpose is to move offshore production
                   size of facilities and resulting impacts cannot be           to onshore storage. It requires minimal staffing, no
                   accurately judged until we know the amount and               more than one person around the clock.
                   location of the oil or gas resource. We can, however,             In the course of developing an offshore
                   look at the kind of facilities that will be needed           discovery, various onshore-based service companies
                   and activities which will occur.                             are needed. Some very specialized service companies
                        First, lef s look at timing.                            would be required. However, for the majority of
                        If oil and gas are found, platform design nor-          general support services, such as welders, machinists,
                   mally takes about a year. Another 3 1/2 years are            caterers, etc., the industry would look to local,
                   needed to actually build and install the structure.          existing companies. The industry would not normally
                   Development drilling can take another 2 years. Then          add new facilities, nor would our presence mean a
                   would come the installation of production facilities         dramatic increase in jobs.
                   and construction of pipelines to get the oil and gas          -   So, what does all this mean to you? How many
                   to shore. As much as 6-10 years can elapse before            jobs will be spawned in New England by offshore
                   the first oil or gas would reach a 'refinery or a gas        development? Of course the question can't be
                   plant for processing.                                        answered until the amount and location of the oil
                        Now let's look at the offshore development              and gas resources are known. The Interior Depart-
                   operations and their relation to the coastal area.           ment estimates as many as 10,250 new jobs for
                   In South Louisiana, where offshore structures aye            New England, supporting a population of some
                   built, there is a platform fabrication yard. Such            25,500 people. Putting this in perspective, this is
                   yayds are not likely to be located on the Atlantic           less than one percent of the population of the
                   unless a large find is made. From offshore support           region. We estimate that 75 percent of the new jobs
                   bases in south Louisiana, boats carry supplies and           created would go to local people, people already
                   equipment to the rigs and platforms. Helicopters             living here. Thus, population growth would be slow,

                                                                               18

                  orderly, and limited in all likelihood to a few com-          oceans annually comes from offshore production.
                  munities.                                                     And our record continues to improve. That is not
                       When will it begin to happen?                            to say there will be no oil spills or accidents. All
                       On the negative side, the 1976 Baltimore Canyon          human undertakings are subject to error and mis-
                  lease sale, as previously mentioned, is still in liti-        judgments. But, we must and will do everything
                  gation. District Court Judge Weinstein ruled for              possible to prevent oil spills, and history has shown
                  plaintiffs to cancel the sale and the case has been           that we have been increasingly successful.
                  appealed to the Federal Appeals Court in New York.                 In summary, what effect will OCS development
                  Should the court rule favorably and the sale be               have on the coastal zone? Very simply, there are
                  allowed to stand, we must then obtain drilling                three areas of probable impact. These are pipelines,
                  permits from various governmental agencies, includ-           onshore support bases, and personnel requirements.
                  ing the Corps of Engineers, the U.S. Geological               All other aspects of our activities can be conducted
                  Survey, and the Environmental Protection Agency.              outside the coastal zone. As you have already seen,
                  It is unlikely that any drilling activity could begin         these three probable areas of impact will have no
                  this year.                                                    appreciable effect on any coastal area. I hope it is
                       As for the Georges Bank area off New England,            clear from my discussion that we are talking about
                  a lease sale is scheduled for November 1977. If               very small numbers, and limited space requirements.
                  there are no court challenges, and if permits can                  Finally, let me say in the perspective of our
                  be obtained in a timely fashion, we might expect              energy situation today that development of the
                  drilling on that acreage to begin by midyear 1978.*           Atlantic OCS will not totally resolve our energy
                       Now, let's turn for a moment to environmental            problem - but it is an important link in the chain
                  considerations. The need for a clean, safe environ-           of undertakings required to better our position. Some
                  ment is fundamental, and safeguards against pollu-            impacts on coastal areas will result from OCS'activi-
                  tion are a basic necessity. In the nearly thirty years        ties - both positive and negative. In my view such
                  since offshore development began, more than 2 1, 000          impacts are small in relation to the great need to
                  wells have been drilled in the U.S. waters. In this           move forward to resolve our energy problem.
                  time only one accident has caused severe, but tein-                As we search for solutions to our energy prob-
                  porary, pollution to beaches and shores - the highly          lems, we must do so rationally and sensibly. The
                  publicized Santa Barbara spill. And while any oil             decisions we make are too important to be decided
                  spill is bad news, what is generally overlooked is            by emotional reactions and preconceived notions. For
                  that independent studies show there has been no               these reasons, I am particularly pleased to have
                  lasting damage from any offshore spill - including            been here today to share these thoughts with you.
                  Santa Barbara. For example, a recent report by the            Let us hope that, together, we will make wise
                  National Academy of Science analyzing all available           decisions.
                  technical information on oil on water concluded:
                  "The effect of oil contamination on human health
                  appears not to be cause for alarm."
                       Also, a two-year study of effects on marine life
                  in the area of offshore oil production in the Gulf of
                  Mexico, where More than 16,000 wells have been
                  drilled, concluded: "Every indication of good eco-
                  logical health is present." This study was conducted
                  by twenty-thTee scientists from thirteen universities
                  and research institutes.
                       According to the same National Academy of
                  Science study quoted above, only about 1.3 percent
                  of the petroleum hydrocarbons entering the world's

                  .As of the date of publication, the lease sale has not been conducted.

                                                                            19

                    Transportation in the Coastal Belt

                    John W. Devanney
                    Professor of Ocean Engineering, Massachusetts Institute of Technology

                         Today I shall talk about transportation, and the       on oil spills over the past four or five years. Several
                    conflicts which it raises within the coastal belt. From     interesting things should be noted. First of all, there's
                    among the number of interesting problems that are           little statistical data on the notorious Liberian fleet,
                    associated with transportation, I have chosen to cover      which is growing in tonnage each year. Also, one clear
                    two issues. One concerns the regulatory controls            pattern, and a disturbing one, is that old ships tend
                    which should be placed on tankers operating near our        to spill more than young ships. It so happens that
                    shores. A second issue involves the proportion of           draft restrictions in U.S. ports benefit the newer
                    our waterfront which should be allocated to termi-          ships. But we are the ones who are going to pay for
                    nals. This latter question has been highly publicized,      whatever rules are in effect in our ports, and if the
                    although I dare'say that perhaps 95 percent of the          older vessels are forced to compete with the more
                    people in this room have not thought seriously about        expensive and more efficient newer ships, perhaps
                    the issue.                                                  the rules might be adjusted to give the older vessels
                         The tanker regulation issue has of course been         a greater chance in the competition.
                    brought about by tanker spills and discharges. What              Discharge of oil ballast is by far the largest
                    do we know about these problems? In the,course of           source of oil spillage, and techniques such as load
                    normal tanker operations, we spill tons of petroleum        on top cannot, for the most part, greatly affect
                    each year into the ocean, much of this through tank         operations on American routes, which are largely
                    cleaning. It is estimated that between 100,000 and          productive routes. Load on top is expensive, and
                    300,000 tons of petroleum enter the ocean each year         could represent a five to ten percent increase in
                    through tank cleaning, a figure which represents            transportation costs. It would place some limit on
                    between one-fifth and one-fourth of all man-made            how much oil each tanker could discharge, and leave
                    petroleum discharged annually into the ocean.               it up to the industry to figure out which combina-
                         More petroleum enters the ocean from tank              tion of segregated ballast and other techniques is
                    cleaning than from oil spills. Further, it should be        cheapest. But I am completely convinced that such
                    noted that almost all the oil spilled within a given        restrictions as double bottoms, tank- size limitations,
                    year comes from a few very large spills, usually            etc., will have almost no effect on the amount of
                    not more than three or four. Generally, the several         oil that is spilled. The reason for this is that the
                    largest spills during a year account for 80 to 90           greatest bulk is spilled in incidents involving the
                    percent of all oil spills worldwide, and equal the          complete loss of a ship, in which case such measures
                    total amount of petroleum that enters the ocean from        are ineffective, Double bottoms, for example, would
                    ship losses due to grounding, collision, or explosion.      not have helped the Argo Merchant
                    Of the total tanker spillage each year, less than ten            With respect to tanker spills, the emphasis
                    percent is contributed by operational spills.               should be on personnel training, operating proce-
                         We at MIT have compiled fairly complete data           dures, communication and navigation gear, and the

                                                                             20

                  required use of the English language in intervessel       and they take no account of the fact that there is
                  communications. Minimal navigation and gear               currently a great surplus of foreign flag vessels.
                  requirements, coupled with adequate Coast Guard           What would really be accomplished by this bill
                  inspection, would cost very little, yet would greatly     would be the subsidy for a few years of 100,000
                  reduce spillage. Unfortunately, the bureaucratic and      American shipyard workers, as well as of 3,000
                  political need for doing something concrete, and          American seamen. Wouldn't it be simpler to give
                  the expedience of doing something spectacular,            these men $30,000 a year outright, and save our
                  rather than what reality dictates, have saddled us        steel, our energy, and other resources?
                  with the costs of a series of expensive tanker design          Nevertheless,    the cargo resolution over-
                  requirements which will do almost nothing beneficial      whelmingly passed both houses of Congress before
                  for our environment.                                      the Argo Merchant incident, and we can be sure it
                       There is another important subject to which I        will pass again. The last time, President Ford vetoed
                  would like to call your attention. I fear that the        the bill; this time it will be up to President Carter.
                  Congress, under the guise of protecting our interests,    You may ask how such an atrocious piece of legisla-
                  is planning to enact an expensive regulation, and         tion can go through Congress with such flying colors?
                  one that has no direct bearing on environmental           if there are any political people here, I would suggest
                  protection. This proposed legislation places a restric-   you could do no better than to study the American
                  tion on the amount of imported oil that can be            Shipping Lobby, a fantastic organization. You might
                  carried on non-American flag vessels. The arguments       entitle your thesis "How Cheap Is Your Congress-
                  for this legislation are based on a balance of pay-       man?"
                  ments, jobs, and environmental protection.                     A second transportation issue to which I would
                       At MIT, we have taken the time to analyze this       call your attention is, that of container terminals.
                  legislation. In this analysis we have had to make         The  problem here is that -when it comes to port
                  certain assumptions. One of these concerns the initial    facilities, the public is convinced that the more
                  costs of currency, that is, the market exchange rates     cargo which is handled the better the facility. As a
                  in the absence of any controls. We have also made         result, here in the New England region, we are sub-
                  assumptions about American shipyard workers, if           sidizing essentially uneconomic port activities. Our
                  they were not building the new vessels which would        criterion for success with regard to marine-caTgO
                  be required by the legislation, as well as assumptions    handling is not how much profit the operations make
                  about what U.S. seamen would be making if they            but how much money they spend. The economics
                  weren't working on the additional U.S. ships.             here in New England practically guarantee that we
                       If one assumes that foreign currency is at present   cannot make money in container handling except in
                  15 percent under value, and that a seaman working         relatively small-scale operations. Yet Massport in
                  on a foreign tanker would make half what he would         Boston informs us that they aye hopelessly congested,
                  on an American flag vessel, and that an American          and need more space. Although more space for them
                  shipyard worker would make 80 percent of his ship-        means losing still more money, they are still going to
                  yard wage in other employment, then the account           get it.
                  ends up something like this: The total cost of the             All of the New England port cities appear con-
                  proposed legislation to the American taxpayer would       vinced that they should reserve their waterfronts
                  be about 4.5 billion dollars a year. The annual gain      for urban industrial uses. As a result, in every large
                  to the American flag seamen and shipyard laborers         New England port you will see large tracts of water-
                  would be 4.8 billion dollars, but there are many          front for such a use - waiting, and waiting, and
                  other costs involved. Taking account of all the           waiting. Visitors from the West Coast and Florida
                  plusses and minuses, we have calculated that the          are completely aghast. Here is prime waterfront
                  total cost to the nation of the proposed bill would       sitting fallow. Invariably, you will find that the
                  be about 3.2 billion dollars per year.                    property is in the hands of some public or semi-
                       These figures assume that all the ships needed       public agency which is insulated from supply and
                  under the new law will have actually been built,          demand factors. If the private sector could get its

                                                                          21

                  hands on the property it would turn it to recreational
                  uses. Currently marina operators in Boston are getting
                  better than $35 a boat foot, and are minting money.
                  We could put 900 boats in Charlestown and 2,000
                  in South Boston in the space which is designated for
                  container terminals. One of the funny things about
                  container terminals is that they represent an occu-
                  pation which is anything but labor- intensive. The
                  container terminal generates about four jobs per acre;
                  there aren't many activities which have a lower ratio
                  of jobs per acre.
                       We blame a lot of our pollution problems on the
                  marketplace, and often with good cause. But it is
                  the public sector which is responsible for the mis-
                  allocation of waterfront property. The time has come
                  to tell marine transportation that it has to compete
                  with all the other uses of potentially valuable urban
                  waterfront space.

                                                                         22

                   Marine Recreation: Uses and Needs

                   Niels Rorholm

                   Professor of Resource Economics and Sea Grant Coordinator,
                   University of Rhode Island

                        Marine recreation is certainly not a new form of       uses of the sea in one important respect the
                   recreation, but it has grown very rapidly both in           "product' is consumed on the premises. Thus
                   quantity and in variety during the past 25 years.           resources (air, sea, land, capital), producers (marina
                        I won't attempt to describe the quantitative           owners, hotel owners, etc.), and consumers (swim-
                   growth with numbers, for one of the difficulties with       mers, boat people, fishermen, etc.) are in intimate
                   outdoor recreation is the matter of measuring it -          touch with one another through the entire produc-
                   no one agrees on the numbers, and in fact, they are         tion, marketing, and consumption process. Add to
                   not very meaningful, primarily because there has            that the fact that though all feel in some vague
                   been no consistent impartial collection of data on          sense that they have rights to the basic natural
                   which to base time series. It is generally agreed,          resource - and indeed they do - some have more
                   though, that marine recreation is an activity that has      influence than others in the way local or state
                   substantial social and economic ramifications. These        governments affect access to and use of the coast
                   range from paying more for a year-round residence           and its waters.
                   from which you can see and smell the sea, through                These characteristics make marine recreation
                   talking and sunning at the edge of the sea, or walk-        extremely difficult to manage, and by "manage" I
                   ing the marshes and dunes, to diving, sailing, surfing,     mean here the determination and execution of
                   and swimming in or on the sea itself.                       policies that affect access to and costs of recreation.
                        The sea encourages variety in use not only             It is perhaps worth pointing out that, although
                   because it changes constantly in response to currents       coastal management bodies may not necessarily set
                   and weather, but also because of the infinite variety       prices for recreation services, their actions have
                   of environments that are created by land-sea inter-         profound effects on prices and costs to consumers.
                   action - from the quiet coastal pond or lagoon to           For example, a policy of discouraging the building
                   the thundering surf.                                        of additional'marina slips will very quickly lead to
                        Marine recreation, in common with other marine         higher prices for dockage in that area.
                   activities, depends for its very existence on the                Marine recreation is probably the one use of
                   maintenance of certain characteristics of the coastal       the coastal belt - or at least that part of it extending,
                   belt, most of which is in the public domain. Thus,          say, ten miles from shore - that is the most demand-
                   the quality of marine recreation is likely to depend        ing of natural and of public resources.. Requirements
                   heavily on the functioning of government, either            for natural resources are high because of the pressure
                   through income redistribution (for public beaches           of population on a limited shoreline. The require-
                   and parks for example), or through ensuring that            ments for public resources arise first out of the
                   costs of production or of housing are fully internal-       necessity for holding valuable shoreland for public
                   ized (air- and water-pollution control).                    use and second from the tremendously expensive net-
                        But most marine recreation differs from other          work of roads and bridges needed to ensure access

                                                                            23

                         Table 1. Suggested Resource Needs and Output Characteristics of                    expectation from recreation (output or product) and
                         "Going to the Beach."                                                              the inputs or resources required are quite different
                                                                                                            for the different kinds of beach experiences.
                         .Rii ource,ne                                                                            I venture the statement that for the maj or propor-
                         foreshore free of vegetation; accessible by land.                                  tion of the beachgoing population these three types
                         Social Beach                                                                       of beach environments would be poor substitutes for
                         `Culpfltslor- products.- Swimming, - getting a tan, socializing. being seen,       one another; so poor in fact that they may probably
                         having fun, etc.                                                                   be classified as different products. The good news
                         Resource needs: Sandy, fairly wide beach,- ocean site preferred, large             is that this stretches the limited natural resources
                         parking area, high-capacity access road, nearby low- to mid-priced food            that produce beach experiences; the bad news is that
                         and beverage service, pavillion facilities, lifeguards, preferably other           in planning for beaches, it is not enough to use a
                         entertainment nearby. Highly cyclical use. Heavy weekend use.                      few average capacity figures and, from those, deter-
                         Scenic Beach                                                                       mine the need for public beaches. Unless it is known
                         Outputs or products: Swimming, getting away from it all, enjoying nature,          what a given beach will likely be called upon to
                         sunbathing, walking for exercise.                                                  produce, it is not possible to predict the resource
                         Resource needs: Less sand beach and less width needed, ocean pre-                  loads or the associated public service requirement.
                         ferred, less parking, no special      roads, may be difficult of access,                 One could make the same breakdown for several
                         limited lifeguard service, more even use.                                          other kinds of marine recreation, but the point has
                                                                                                            probably been made - a great variety of experiences
                         "Mother and Child" Beach                                                           is possible and this leads to great variety of resource
                         Outputs or products., Getting out of the house, socializing, tanning and           combinations needed. This "stretches" the natural
                         swimming, healthier children.                                                      resource, but also reinforces the specialization of
                         Resource needs: Sand, no surf, close to home, public transportation                wants and thus leads to a lack of substitution among
                         preferable, average road needs, fairly even use through summer, could              products.
                         probably be artificial, playground equipment limited pavillion facilities,
                         lifeguards.                                                                              So far we have discussed marine recreation as
                                                                                                            if the sole purpose behind resource allocation to
                         to these areas far in excess of the nonweekend                                     those activities were to provide opportunities for
                         needs. The wants for shore-based recreation are such                               the public and those owning shore property to "re-
                         that were all the walkable shore available to public                               create" themselves in, on, and by the water. That is
                         access, one would probably not be able to get out                                  an idealistic if not downright incorrect view. The
                         of public hearing between Portland, Maine, and                                     driving forces behind such resource allocation vary
                         NorfolL Virginia. on a summer weekend. In fact,                                    from the above purpose, typically motivating public
                         things are a lot more crowded than that, for the                                   officials to seek personal financial gain. But they
                         market system has been at work over the years,                                     include also such activities as trying to keep out
                         satisfying the demand for private recreation on the                                industry in favor of tourism, and subsequently
                         edge of the public domain, with the result that                                    attempting to keep out the commercial necessities
                         the ability of the public to get to its domain and there                           for successful tourism in favor of unchanged access
                         to do "its thing" has been greatly diminished. Only                                to and competition for the local natural environment.
                         limited amounts of shoreline are available for public                              This is often known as preserving a way of life,
                         use.                                                                               a very understandable desire on the part of local
                                But all is not lost for, as we mentioned above, the                         populations when this is a nice way of life. (Please
                         variety of experiences characteristic of the marine                                note that resource allocation to a given use need not
                         environment are at least equal to the variety of                                   be a conscious decision, but can result from failure
                         consumers'wants for different types of marine recrea-                              to allocate it to, or permit it to be employed in,
                         tion. To illustrate the variety even within what we                                other uses.)
                         often think of as identical kinds of recreation, one                                     If the "re- creators," their suppliers, the resource
                         need only look at some descriptions of "going to the                               owners (on land) and the regulators are going to get
                         beach." From Table 1, it is evident that both the                                  along in the future as more and more people

                                                                                                         24

                          "discover" marine recreation, we are going to need to                             ing incremental-product would occur fairly soon. If,
                          know a lot more about the needs and results of                                    on the other hand, the number of fish caught is a
                          marine recreation than is currently known. In what                                much more important ingredient of the experience,
                          seems to me a very complicated area, we need to                                   then one would expect incremental product to
                          know what in fact is the role of recreation in keeping                            diminish more slowly and a given length of beach
                          fit physically and mentally, and what aspects of                                  could produce a relatively greater total amount of
                          recreation affect these processes. It amounts to                                  recreation product. if we don't know the nature of
                          nothing more nor less than knowing the nature of                                  the product we can't plan for its production and
                          the "product' that is being consumed. Let me                                      distribution or allocation.
                          illustrate why it is important. If solitude is an im-                                    In addition, we must know the production
                          portant aspect of fishing from beaches at night for                               process, including spillovers and externalities. This
                          bluefish or striped bass, then one obviously would                                will have to include employment and income effects,
                          not double the amount of recreation output by, for                                for recreation is often used as a tool for regional
                          example, doubling the parking facilities to permit                                economic development.
                          twice the number of people to participate; diminish-                                     Table 2 shows a partial list of variables about

                          Table 2. Partial List of Productive Factors for Selected Types of Recreation.*
                                                                                                                                                          Marina-                 Ramp-
                                                                                 Social                  Scenic                Summer                     Based                   Launched
                                                                                 Beach                   Beach                 Residences                 Boats                   Boats

                          ftoductive, Factors
                          I .Wide sandy beaches, ft                                 .4
                          2. Narrow sandy beaches, ft.                                                    4.1
                          3. Other beach or shore, ft                                                                               40
                          4. Protected shore, ft                                                                                                              1.4                 less
                          5. Land/coast ratio                                    315                     176                        172                   517                     greater
                          6. Land area, sq. ft                                   126                     722                     6,900                    724                     same
                          7. Water area, sq. ft                                  200
                          8. Associated physical environ,
                               features
                          9. Private investment dollars                                                                                                   4,200                   660
                          10. Public investment, direct
                               dollars                                              8.40                 82.60                      M                                               20
                          11. Private costs, incl. capital
                               services dollars                                    50.00                 40.00                      H                     571.00                  274.00
                          12. Public cost, incl. capital
                               services dollars                                    15.00                 35.00                      M                        4.00                    10.00
                          13. Water quality
                          14. Employment, NO

                          Associated Outputs

                          1. Improved environment food
                          2. Food
                          3. Local personal income generated
                          4. Local taxes
                          5. Other taxes

                          Associated Inputs

                          1. Public investment dollars
                          2. Annual public cost, incl.
                               capital services                                     H                      M                        L            L                       M
                               capital services                                     H                      M                        L                        L                        M
                          3. Loss in environmental
                               quality

                          *Numbers are rough approximations from limited numbers of observations. The base is per 100 recreation days.

                                                                                                         25

                   which we need information for intelligent coastal          rather than alleviated tension. And that, it would
                   management in recreation. They are not all directly        appear, is a sure way for an affluent society to
                   quantifiable, but we must at least be able to describe     jeopardize its productive vigor and mental balance.
                   them..                                                     Recreation, then, can be viewed as an aspect of
                                                                                                      2
                       Before deciding it is an easy task to fill out and     tension management. Considering the pressures
                   complete Table 2, remember that we don't really            of today's, world, I suggest that perceptive planning
                   know how to define and measure recreation. But I           for recreational opportunities in and by the sea is
                   can't stress enough how important it is for our            very important both socially and economically.
                   public management agencies to have better informa-              Up to now, at least on the U.S. East Coast,
                   tion with which to attack this problem.                    there have been very limited conflicts between
                       Let us briefly try to look into the future with        recreational and commercial uses of the seas. They
                   respect to growth and conflicts in marine recreation.      will begin to appear, though, and the most likely
                       Participation in marine recreation does not            candidates would seem to be water pollution from
                   appear to slow down when increases in dispoEable           energy production, commercial catch of certain
                   income either moderate or are reversed. on the             species of fish and shellfish, and traffic conflicts
                   contrary, it keeps increasing. Hence, policymakers         with commercial shipping. The most limiting con-
                   must decide - rather more quickly than they would          flicts, however, will probably be among different
                   otherwise have to - whether participation is going         kinds of marine recreation, for example, housing
                   to be limited by crowding that can destroy the             and, marinas, housing and beaches, in fact among
                   recreational experience, by pricing out the less           nearly all aspects of so-called private and so-called
                   affluent, or by some other method of allocation.           public recreation and particularly between indi-
                   This decision is extremely important for it will affect    viduals who live in a given area and those who make
                   the quality as well as the distribution of recreation.     their living from the tourist services sector. The
                       Recognizing that, to at least a limited extent,        second most frequent conflict seems to occur within
                   the pricing option will always be at work within our       a given use itself - crowding. A study of boat
                   system, let me explain why I believe we must not           owners, for example, indicated this was one of the
                   rely too heavily on the crowding option to do the          factors that seriously threatened the enjoyment
                   allocation for us. I believe that our increasingly         people received from boat-based recreation.     3
                   specialized economic system generates a need for               To handle the conflicts, we need first        of all
                   diversity in recreational opportunities to offset          to know what is going on. That seems to call for
                   the monotony of specialization. This belief is based       some fairly basic research in sociology- psychology.
                   on my acceptance of two premises. One is that variety      But, in addition, we need a better information base:
                   is a basic need of man along with food, shelter,           here salt-water fishing licenses, registration of all
                   etc. 1 The second is that if basic needs (such as          boats, and a change in coding in the censuses of
                   variety) are denied, tensions rise. Thus, the more we      manufacturers and trade could help. Finally, we need
                   specialize in our roles as workers, the more we            to make some tough decisions about how free the
                   generate a need for other activities which, together       public domain is. For example, if lives can be saved,
                   with work, produce a variety of experiences necessary      ought not commercial shipping to be compelled to
                   for mental health. But if the product is not there,        stay in shipping lanes in coastal waters; if because
                   that is to say if the experience that is. sought is        of low turbidity a given spot has a comparative
                   denied, then tensions are not -released through a          advantage for diving, might that sport not receive
                   variety of activities; instead, they are increased         some preference there. This is not quite water zoning
                   through thwarted expectations. For example, if             at its inflammatory worst, but rather it is the kind
                   instead of solitude you get crowding and snagged           of resource allocation that firms and nations have
                   fishing lines, if instead of quiet you get traffic         always had to practice when their means of produc-
                   noise and rock and roll, and indeed to many people         tion have been exceedingly scarce relative to their
                   if you get quiet instead of rock and roll, the end         needs. Today our coastal belt is exceedingly scarce
                   result of the recreation will likely be increased          relative to our wants.

                                                                           26

                          We don't have much time. it is my fervent hope
                    that we will see close cooperation on all levels of
                    government in managing both the land and the water
                    part of the coastal belt. Once that is assured, then
                    we need to address the question of federal-state
                    guidelines for land use, so we can make a solid
                    dent in the altogether too insular local zoning powers
                    - powers that are a great hindrance to an optimum
                    combination of public and private resources in
                    coastal uses.

                      Notes
                      1. See, for example: Irving A. Spaulding, "Socio-Cultural Values
                            of Marine Recreational Fishing," in Marine RecTeational
                            Fisheries, ed. Henry Clapper (Washington, D.C.: Sport
                            Fishing Institute, 1976).
                      2. Spaulding, ibid.
                      3. Niels Royholm, "Boats and Their People," University of Rhode
                            Island Marine Technical Report 52 (Kingston, R.I.: 1976).

                                                                                      27

                 Offshore Oil Development and the Fishing
                 Industry. The Georges Bank Case

                 Part One. An Overview of the Two Industries and an Assessment of
                 Potential Damage to Fishery Resources and Losses in Fishing
                 Ground

                 Stephen Olsen

                 Coordinator, Graduate School of Oceanography, Coastal Resources Center, University
                 of Rhode Island

                      The Coastal Resources Center recently com-          share of the total catch and important fish stocks
                 pleted, for the New England Regional Commission, an      rapidly declined and became overfished. Figure 2
                 eighteen-month study entitled Fishing and Petroleum      gives an indication of the size of the domestic
                 Interactions on Georges Bank. Volume 11 is an atlas      New England industry measured in terms of fish-
                 showing the distribution of fishery resources, fishing   ermen.
                 grounds, and areas of interest to the petroleum
                 industries. One purpose of the atlas was to underscore
                 how poor available data is on several important                  IM
                 topics, Volume   112 examines several potential areas
                 of conflict in considerable detail and summarizes
                 relevant data on the two industries. In this paper we                                                   40,
                 will touch upon some of the highlights of the study.
                      Georges Bank lies between Cape Cod, Massa-
                                                                                  000-                                  '30
                 chusetts, and Cape Sable, Nova Scotia, and includes
                 some 12,000 square miles within the 100 fathom
                                                                                  700
                                                                                                                        -.20
                 isobath. It is one of the world's richest fishing
                 grounds and an important spawning ground for                     600-                       V          -110
                 several major species. It may also overlie reserves
                 of oil and gas and commercial drilling activity is
                 expected to commence shortly. The bank has tradi-
                 tionally been worked by fishermen from many                      400                                   -90
                 nations. In the late 1950s large fleets of foreign
                 vessels began an onslaught on selected stocks that               3W -
                 radically changed the nature of Georges Bank fish-
                 eries. Domestic landings declined drastically, as                  @950 52 54 56 5a Go 62 64 66 M 12 1.
                 shown in Figure 1, as foreign fleets claimed a gYOWing Figure 1. New England Landings.

                                                                        28

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                           opportunity for New England fishermen to claim a                                                                                                    --- OTHER
                           larger share of the total catch. This means that we                                                       SOO.
                           must not compare a future offshore oil industry                                                           250-
                           on Georges with the present domestic fishing
                                                                                                                                                                             A
                           industry; the character of the latter may be very
                           different in ten or twenty years when offshore oil
                           activities may be in high gear.                                                                           ISO-           A
                                   Our knowledge of the fish stocks on Georges
                                                                                                                            0
                           is sketchy and it is risky to                  make predictions for
                           what the bank could produce if fisheries were
                           properly managed. It can be hypothesized, however,
                           that the bank could produce a maximum sustainable
                           yield (MSY) of some 42Q,000 metric tons (924 million
                           pounds) of fin and shellfish each year. A very con-                                                       4-
                           servative estimate, using 1974 dollars, is that the                                                       3-
                           dockside value of this catch n-dght be $142 million                                                       2 -
                           that would generate $420 million in transactions
                           in New England, of which $166 million would be                                                            1957 *a 59 SO 62 63 64 65 66 67 6a 69 M 71 72 73 74
                           personal income. Let me emphasize that these                                         Figure 6. Herring Landings, ICNAF Area 5Z (E and W).
                           numbers are a best guess.
                                   Dr. Virgil Norton, a member of our study team,
                           made a series of projections for the expansion of                                                         100-
                           New England fisheries under the 200-mile limit.                                                           so -                                         us
                                                                                                                                                                                   OTHER
                           He concentrated on the groundfish (cod, haddock
                           ocean perch, and pollock) fishery. Three hypothetical                                                     80
                           cases were examined. In Case 1, effective manage-
                                                                                                                                     To-
                           ment, but no federal aid to fishermen, is postulated-,
                                                                                                                            Z
                           some federal aid is postulated, but foreign fishing
                                                                                                                            ZE       60-
                           continues in Case 2; and in Case 3 the industry
                           receives aid from the federal government and foreign
                                                                                                                                     50-
                           fishing is eliminated (a truly hypothetical situation).
                           Estimated changes in the New England groundfish                                                           40.
                           fishery may be summarized as follows:

                                                                                                                                     30-

                                                                                               Employment
                                                                                             in Processing                           20
                                         Millions of Lbs.      Vessels      Fishermen             Plants
                           Present          250-350              470           2500               1000                               10
                           Case 1              500               545           3422               1500
                           Case 2              700               679           4620               2000
                           Case 3              750               712           4925               2800                               1957 W 59 60 61 62 63 64 65 66 67 6a 69 70 71 72 73 74
                                                                                                                Figure 7. Haddock Landings, ICNAF Area 5Z (E and VYJ.

                                   Fisheries for herring and sea scallop could also                                    The petroleum reserves on Georges may also be
                           experience dramatic growth and new fisheries may                                     substantial. Unlike the fish, however, these resources
                           develop for such high-volume, low-value species as                                   are nonrenewable. Present                  estimates for the magni-
                           mackerel and squid. The potential for growth in                                      tude of these reserves, and very important whether
                           domestic fisheries for both traditionally favored and                                they are concentrated in a few large fields or are
                            new" species are illustrated by Figures 6, 7, and 8.                                scattered, are very definitely best guesses. There

                                                                                                            30

                                                             us                Now let us turn to some potential problems
                                                             OTHER
                                                                          between fishing and petroleum exploitation. The
                             40-
                                                                          first question is what the impacts of petroleum
                                                                          exploitation might be on the fishery resources them-
                                                                          selves. The amount of area that may be directly
                                                                          affected by the placement of structures such as rigs
                                                                          and pipelines is small and the loss of habitat does
                                                    A
                                                                          not appear significant, with one important exception.
                                                                          Some species, most notably herring, spawn in small,
                             20-
                                                                          well-defined areas. Disruption of these habitats
                                                                          should be avoided at all costs. The major potential
                                                                          problem appears to be oil pollution. Although the
                                                                          spill record for offshore drilling is good, it is
                                                                          common knowledge that accidents, and big ones at
                                                                          that, do happen. There is also concern for chronic
                                                                          low-level pollution that need not be associated with
                               1W 56 53 60 GZ2 63 64 @5 16 61 68 69 ?U 11 72 73 7@ big spills. In attempting to assess the potential
                 Figure 8. Cod Landings, ICNAF Area 5Z (E and W).         impact of- petroleum pollution on Georges one is
                                                                          again struck by the meagerness of the information
                 may be no exploitable reserves at all, but the indi-     with which we must work. Marine toxicology is a
                 cations are that a moderate-sized find (in global        science in its infancy and most of the research
                 terms) will be discovered. The estimates for exploit-    completed has been conducted under controlled
                 able reserves we used are:                               conditions in the laboratory. It will be extremely
                                                                          difficult, if not impossible, in all but the most
                                  Oil (billions ofbbls)  Gas (Mllion cubicft) obvious catastrophic situations, to note a change
                 Large Find            0.18                    1.3        in the environment, establish its cause, and assess
                 Small Find            1.3                     8.6        its significance. On Georges Bank our ability to
                                                                          accomplish these steps will be impaired by the lack of
                 The economic benefits that could accrue to the region    baseline data, and the studies presently being under-
                 depend upon the size of individual fields and the        taken will not provide the answers. These problems
                 price at which the product is sold. The greatest         were discussed in detail at the Bentley College Work-
                 benefits to the region would result from a large         shop'3  a convocation of recognized authorities
                 find of gas that would be sold at a low controlled       on the Bank held in 1975. Why are we concerned
                 price. Depending on the size of the fields, we esti-     with oil pollution? Because the soluble aromatic
                 mated that the consumer real income from single          hydrocarbon derivatives (S.A.D.'s) in petroleum
                 hypothetical fields could range from $5-634 million      products are toxic at very low concentrations. The
                 for gas sold at a controlled price of 60 cents per       concentration of S.A.D.'s in crude oil varies and
                 thousand cubic feet (a best case) and $6-155 million     may Teach 0. 1 to 10 percent. Lethal effects on adult
                 for individual hypothetical oil fields. Small and        marine organisms are found at S.A.D. concentrations
                 large fields are defined as follows:                     of 0.1 to 10 ppm, and sublethal effects, including
                                                                          production of abnormal spawn and inhibition of the
                                 Oil (millions of bbls) Gas (Mllion cubic ft) mating response, occur at I to 10 ppb for some
                 Small Field           18.5                   0.11        species of commercial and/or ecologic importance.
                 Large Field          321.8                   1.93        Tainting can occur at concentrations of I ppb;
                                                                          humans can taste concentrations in animal tissues
                      The nature of the available data unfortunately      of 5 to 50 ppm.  4 All this leads to the conclusion
                 does not permit us to directly compare the possible      that highly sensitive fish eggs and larvae would
                 future values to the region of fish and petroleum.       probably be wiped out if they came in contact with

                                                                       31

                       spilled oil. It should be pointed out that most eggs                        Estimates were then made of the amount of area
                       and larvae die anyway; but a spill at the wrong place                  that could be lost to fishermen by the placement
                       at the wrong time could have a major impact on a                       of drilling platforms. Given a minimum safety zone of
                       year class. Perhaps most worrysome of all is that                      500 meters around each platform, and a greater loss
                       significant impacts may go unnoticed, or if they are                   in the vicinity of clustered platforms, we estimated
                       detected, that it will be very difficult indeed to                     that in a hypothetical worse case 50 platforms
                       establish their cause.                                                 grouped in small clusters could preempt 125 square
                             Let us now consider the problem of a loss of                     miles from fishing. If all this area was concentrated
                       fishing ground on the bank due to the placement of                     in the most productive fishing grounds some 2
                       offshore structures. The first point to be made is that                percent of the total Georges Bank catch, in both
                       trawle-rmen - and most of the fish and shellfish                       pounds and dollars, might be lost. I will not go into
                       caught on the bank are taken with gear that is towed                   all the obvious problems with the data, but the con-
                       along the bottom - do not randomly drop down                           clusion that the loss appears relatively small seems to
                       their gear and pull it about anywhere. Fishermen                       be reasonable. We could not estimate losses from
                       work discrete grounds, and where the bottom is                         pipelines and this could be a more significant
                       scattered with obstructions, or fish are known to                      problem. The potential loss of ground from debris
                       concentrate in a specific place, the ground may be                     appears to be a greater problem than loss from struc-
                       very tightly defined. Fishermen are understandably                     tures; this will be discussed by Dr. Grigalunas.
                       jealous of their personal knowledge of the grounds                     Structures, at least, can be clearly marked and can
                       they fish and they do not readily tell others where the                be positioned so that they will cause minimal inter-
                       best places are. Nevertheless we were able to work                     feTence with fishing. We strongly recommend, there-
                       with several fishermen who make their living on                        fore, that fishermen be consulted when the precise
                       Georges and map, in a somewhat generalized manner,                     placement of structures is being decided. A small shift
                       the various grounds. These maps have been widely                       could save a valuable fishing area.
                       circulated and fishermen feel they are accurate.
                       We then asked the National Marine Fisheries (NMFS)
                       Laboratory at Woods Hole to analyze their data on                      Notes
                       catch-by-aTea for landings at major New England                        1. Olsen, Stephen and Saila, Saul B. Areas of Particular Interest
                       ports collected from 1965 through 1974. The manner                           to the Two Industries. Fishing and Petroleum Interactions On
                       in which this data was collected poses many im-                              Georges Bank, vol 1. Energy Program Tech. Report 16-3.
                       portant problems, but the file is the only source of                         Boston: The New England Regional Commission, 1976.
                       numbers for catch by specie for small areas (squares                   2. Olsen and Saila. The Characteristics of the Two Industries.
                                                                                                    Potential Future Trends and An Assessment of Foreseeable
                       measuring 10 minutes of latitude by 10 minutes                               Conflicts. Fishing and Petroleum Interactions On Georges
                       of longitude). One obvious problem with the data is                          Bank, vol. 11. Energy Program Tech. Report 77-1. Boston:
                       that the catch for an entire fishing trip was usually                        The New England Regional Commission, 1977.
                       assigned to a single square, and never to more than                    3. Bentley College Workshop. Georges Bank Conference; Marine
                                                                                                    Environmental Assessment Needs on the Georges Bank
                       three squares. It is very unusual for a vessel to take                       Related to Petroleum EXPIOTation and Development New
                       all its catch from one small area. However, we worked                        England Natural Resource Center, 1975.
                       the data hard and defined "grounds" which agree                        4. Hyland, J. L. and Schneider, E. D. Petroleum Hydrocarbons and
                       fairly well with the areas defined as grounds by the                         Their Effects on Marine Organisms, Populations, Communities
                       fishermen. A careful analysis was made of data for                           and Ecosystems, Proceedings of Symposium on Sources,
                                                                                                    Effects, and Sinks of Hydrocarbons in the Aquatic Environ-
                       1965, 1969, and 1974, and it was found that the                              ment. Washington, D.C.: American Institute of Biological
                       most productive grounds, as defined by the NMFS                              Sciences. August 9-11, 1976.
                       data, produced an average of $29,585 and 164,410
                       pounds per year per lease tract (approximately
                       5,700 acres). Information collected from fishermen
                       strongly suggests, however, that the per area value
                       in some locations is much higher than these figures
                       suggest,

                                                                                            32

                  Part Two. Three Potential Aspects of Conflict: Debris on the Sea-
                  floor, Competition for Labor, Competition for Port and Service
                  Facilities

                  Thomas Grigalunas

                  Associate Professor, Department of Resource Economics, University of Rhode Island

                  Debris and Bottom Obstructions*                            dwarfed by the prospective major returns from off-
                       If North Sea drilling is any guide, debris on the     shore oil and gas developments (see above). Nonethe-
                  ocean floor that can foul fishing gear is expected to      less, conflicts in this area are certain to be highly
                  be one of the more noticeable day-to-day conflicts         visible; and unless pragmatic remedies are adopted,
                  between the petroleum and fishing industries. Scot-        relations between the two industries can be aggra-
                  tish fishermen's representatives have stressed that        vated, which in turn can affect the leasing of off-
                  ,,. . . debris is possibly the most serious factor         shore tracts and the potential to realize gains from
                  affecting fishing operations .                             the expansion of both industries. Some present and
                       For perspective, over the period from May 1974        possible remedies are outlined below.
                  through June 1976, some 121 claims were filed for               O.C.S. orders provide that the disposal of wastes
                  $123,000 against the United Kingdom Offshore               into the ocean shall not adversely affect uses of the
                  Operators Association for damages resulting from oil-      ocean. O.C.S. orders also require that offshore opera-
                  related debri S.2 These figures do not include 28          tions clear permanently (though not temporarily)
                  claims filed directly against oil companies, and the       abandoned well sites of obstructions. The existence
                  value of these direct claims is not available. Also        of regulations, of course, does not insure that prob-
                  the statistics are somewhat understated because            lems will not arise. The United Kingdom has its
                  claims f or the value of lost fishing have been recorded   Dumping at Sea Act of 197 4, and yet there is difficulty
                  only since late 1976.                                      with debris in the North Sea. The fact is that effective
                       The cost of new fishing gear (trawl net, doors,       enforcement of regulations is costly, so that deliber-
                  and  warps) for representative trawlers of the type        ate as well as accidental discharge of materials into
                  that fish for groundfish on Georges Bank could range       the ocean is likely to occur.
                  from $7,300 to $9,700, although seldom is all the gear          It may, of course, be possible to induce accident
                  likely to be lost. in addition, the estimated net loss     prevention by some straightforward approaches. For
                  in income (revenue less operating costs) to the vessel     example, someone other than the supply boat crew
                  owner and crew could amount to $1,333 for each day         could offload waste materials being brought ashore,
                  of lost fishing time.                                      so that a crew would not have an incentive to dump
                       The potential economic costs resulting from oil-      at sea in order to have more fre@ time on shore.
                  related debris and bottom bbstruction in total are         Educational efforts also may be used to inform oil

                  'This section is based on Sutinen (CRC, 1977, Section 9).

                                                                          33

                    industry employees of the characteristics of offshore       are too strict, some legitimate claims may not be
                    fishing operations and the potential harm that can be       paid, thus negating the purpose of the fund.
                    caused by dumping materials offshore.
                         If damages to commercial fishermen resulting           Competition for Labor
                    from debris and bottom obstructions do occur, direct              introduction of offshore oil in the North Sea
                    approaches for compensation are not likely to be a          has attracted workers from alternative occupations,
                    very useful general approach for compensation. First        including commercial fishing. However, offshore oil
                    and foremost, it is necessary to know the identity          in the North Sea coincided with a period of decline
                    of the alleged offending party, and often this will         in fisheries. In New England the situation is the
                    not be possible. Even if the identity is known, how-        reverse; we expect to have both industries expanding
                    ever, litigation very often will be too costly to pursue.   simultaneously. At issue is whether or not the intro-
                    Also, direct but informal negotiations between the          duction of petroleum development on Georges Bank
                    parties can be costly (particularly in the opportunity      could somehow dominate labor markets and slow the
                    cost of time for the owner-operator of a vessel),           expansion in fishing.
                    and in this case, the decision as to whether and how              in order to assess the likely labor market inter-
                    much to compensate is left to the oil company, the          actions between the two industries, estimates were
                    presumed offending party.                                   made of the quantity and type of added demands
                         One remedy proposed for dealing with the prob-         for labor by fishing, petroleum, and related industries.
                    lem of identification of the offending party is to          The extent of overlap in the demand for skills was
                    require that major pieces of material and equipment         identified, and the likely impact of market compe-
                    going offshore be conspicuously marked. However,            tition for the commonly demanded pool of labor
                    such a scheme could prove to be costly.                     then was elevated.
                         Because the direct approaches described above                The peak demand for labor to work offshore in
                    often will not prove useful, there is considerable          the high oil and natural gas find case was    ' estimated
                    merit in the indirect approach of a compensation            to be about 4,000. New England's share of this work-
                    fund that could cover damages from oil- related debris      force is estimated to be about 2, 100 at peak. About
                    that cannot be attributed to a particular company.          1,200 jobs, at peak, would require skills similar to
                    Such a system, funded by oil operators, is functioning      those found in commercial fishing, e.g., captains,
                    in Scotland.                                                mates, crews, mechanics, and radio operators.
                         Under the compensation fund system, commer-                  in the high commercial fishing case, the com-
                    cial fishermen would be able to seek recompense             bined added demand for labor for expanding harvest-
                    against the fund for damages to gear as well as             ing operations, to replace retiring crewmen and to
                    the net income loss resulting from lost fishing time.       provide management observers to enforce fishery
                    The value of lost fishing time might, for example,          regulations, could amount to 5,400 to 6,200 workers.
                    be estimated by using the average productivity of the             in sum the expansion of both industries by the
                    vessel over its last, say, three trips in order to          mid- 1980s will create a demand on the region's labor
                    account for the 'productivity of individual skippers.       force for some 6,600 to 7,400 additional workers
                         It is clear that, in setting up a compensation         with similar skills. This increase in demand for
                    scheme, the organization, funding level, and pro-           workers is not likely to have a notable impact on
                    cedures and standards to be followed are central to         commercial fishing for several reasons. First, the
                    the success of this approach. The characteristics of        increase will occur over a period of years, and a
                    the compensation fund financed voluntarily by the           gradual increase in both industries would be expected
                    United Kingdom Off shore Operators Association,             to lead to fewer dislocations than an equivalent
                    which could be a useful model for Georges Bank,             increase over a short period of time. Moreover, fish-
                    are described in some detail in our report 3  in general,   ermen's earnings compare favorably with expected
                    while it is hoped that such a system would expedite         earnings in similar job categories in the offshore
                    claims, the fund would have to be protected from            petroleum industry (although there probably is less
                    false claims. On the other hand, if claims procedures       risk in the oil industry than in the fishing industry).

                                                                               34

                 Potential transfers from the fishing industry to the         vessels will be used in continuous support of Georges
                 oil industry also would be hampered because fisher-          Bank oil and gas development in the high find case.
                 men may not possess the seamen papers necessary              In the most optimistic commercial fishing case,
                 for many positions on oil-related vessels. Finally,          perhaps 240 additional fishing vessels will be added
                 there appears to be ample availability in other sectors,     to the groundfish fishing fleet, an increase of about
                 especially construction, of the skills and aptitudes         50 percent over the 1976 groundfish fleet of vessels
                 required in offshore petroleUM.4                             over 38' long.*
                      On the other hand, a note of caution is called               In total, the ports in the region would need to
                 for. Recent high rates of unemployment may continue          accommodate about 300 additional vessels, and these
                 to decline, and we cannot be sure'precisely what             vessels will tend to be larger than many of the
                 labor pool will be drawn upon to accommodate the             boats currently using many ports. Supply boats will
                 demand for the skills, training, and characteristics         be in the 175-225 foot range and draw 15 feet when
                 used by the two industries and related (e.g., vessel         loaded. The size of the "average" groundfish vessel
                 repair yards) businesses. Therefore, industries and          is expected to increase, with most of the additional
                 government will need to work together to                     fishing vessels expected to be in the over 70-foot
                 initiate training programs to avoid potential                category.
                 bottlenecks.                                                      Perhaps 700 acres would be demanded for direct
                                                                              offshore oil support operations, excluding a possible
                 Competition for Port and Service FacHities                   platform fabrication facility or petroleum refinery.
                      O.C.S. oil and natural gas development and              An expanded fishing industry also may create de-
                 additional commercial fishing will lead to an increase       mands for additional port lands.
                 in the demand for port services, including berthing               On the supply side, an inventory was made of
                 and the use of nearby port lands for support activities      the principal features and facilities available at ports
                 and vessel repair facilities. Will the additional activity   in the region. Substantial underutilized or idle
                 of both industries create congestion problems in             facilities exist at many major ports in the region and
                 ports? is it likely that O.C.S. petroleum operations         at excessed Navy lands, including Boston and New
                 will displace commercial fishing in New England              Bedford in Massachusetts and Quonset- Davisville,
                 ports?                                                       Melville, and Coddington Cove in Rhode island.
                      It is difficult to assess potential conflicts                0 .n a general level it is difficult to see how off-
                 between the two industries on a general level. Man-          shore oil and gas development on the scale envisaged
                 agement decisions are port and state specific, and           here need result in any notable competition for
                 the kinds and scale of development that will be              berthing and use of port lands, especially in view
                 encouraged depend importantly on decisions made              of present plans to use the massive facilities at
                 by those responsible for port management Also, PO-           Quonset Point to support offshore oil and gas opera-
                 tential demands for port services will arise from recre-     tions. The only qualification necessary is that a
                 ational boating, tourism, and other activities, and the      number of smaller ports in the region - e.g., Newport
                 scope of our work was restricted to potential offshore       and the harbors on Cape Cod - are heavily utilized
                 petroleum and commercial fishing developments-               during the summer and conflicts exist between
                 Nonetheless, useful insight into potential compe-            fishing vessels and pleasure craft at present rates
                 tition between the two industries can be gained by           of use. If petroleum-related activities were placed in
                 reviewing possible additional demands by the indus-          many of these smaller ports, displacement of com-
                 tries and the present utilization of ports in the region.    mercial fishing and other uses could take place.
                      First we look briefly at the demand side. The
                 hypothetical high offshore petroleum and com-
                 mercial fishing development cases are used since             'it is emphasized that these figures include groundfish fishing vessels
                 the potential for conflict,. if any, would be most           only because these are the fisheries most likely to feel the major
                                                                              impact of extended jurisdiction, in terms of increase in vessels, over the
                 evident in these cases.                                      next, say, ten years. No attempt is made to estimate potential increases
                      The results of our   study suggests that some 60        in the number of vessels to harvest scallops, herring or other species.

                                                                           35

                        In a related vein the introduction of offshore       2. Assistant secretary, Scottish Fishermen's Federation, personal
                   oil and gas development and extended jurisdiction              communication, Nov. 1976,
                   will generate additional demands for a variety of         3. Coastal Resources Center, University of Rhode Island, Fishing
                                                                                  and Petroleum Interactions on Georges Bank (Boston: New
                   vessel repair and maintenance services. Demands by             England Regional Commission, May 1977), pp. 280-286.
                   oil-related vessels for repair work are likely to be      4. Ibid., p. 298.
                   insensitive to price because these vessels are on
                   call twenty-four hours a day. Speed of services at a
                   repair yard thus is a major consideration by operators
                   of supply boats. Should congestion problems arise
                   and cause lost operating or fishing time, costs could
                   be imposed on oil companies or fishing vessel owners
                   and crews.
                        The combination of additional demands (ex-
                   penditures) for vessel-related repair and maintenance
                   work by offshore oil support vessels and commercial
                   fishing boats could be comparable to the annual
                   output of about seven moderate- to- large commercial
                   boatyards. As part of our survey of port facilities
                   during the summer and fall of 1975 it was found that
                   many of the large shipyards in the region have been
                   operating substantially below capacity. Many of the
                   larger boatyards had excess capacity during the off-
                   peak seasons. In addition, most yards have informal
                   arrangements to work on emergency jobs first, which
                   serves to reduce potential congestion costs during
                   peak periods. In view of the above, general con-
                   gestion problems aye not likely to arise, and increased
                   demands should serve primarily to decrease the
                   underutilization and off-season excess capacity
                   at -repair yards.
                        Managers of vessel repair yards were asked what
                   problems, if any, might be encountered should they
                   have an incentive to expand their facilities to accom-
                   modate additional, larger vessels. The major non-
                   market factors mentioned, that could hamper or
                   prevent yards from expanding, were lack of adjoining
                   land (seven yards out of sixteen responding), and the
                   inability to extend facilities further into the harbor
                   (six yards). The need to dredge and obtain environ-
                   mental permits (five yards) and the physical limita-
                   tions in the harbor (five yards) also were given as
                   constraints on handling either more or larger vessels.

                   Notes

                   1. Department of Agriculture and Fisheries for Scotland, "Effects
                        of Oil and Gas Development on Fishing" (Edinburgh:
                    -   October, 1975), mimeographed.

                                                                            36

                   Deepwater Ports and the Marine Environment
                   An Issue for the Gulf Coast

                   Shepard R Perrin, Jr.

                   Executive Director, Louisiana Offshore Terminal Authority

                        Public planning is often characterized as involv-    from the cooperative approach. (No serious "use
                   ing trade-offs between economic and environmental         conflicts" have arisen to date.) The Louisiana deep-
                   values. Cast in this light, the planning process often    water port is an offshore oil importation terminal
                   causes interested parties to align themselves with one    to unload foreign petroleum from very large crude
                   side or the other, and eventually degenerates into        carriers (VLCCs). The port is planned as a monobuoy
                   firm opposition, with each side unwilling to com-         facility in the Gulf of Mexico, 18 miles off the
                   promise. We have all seen this happen, and, I believe,    Louisiana coastline, connected to underground salt
                   can agree that such a scenario is not a healthy           dome storage facilities in the coastal zone and to
                   atmosphere for intelligent decision- making.              inland refineries by 95 miles of large-diameteT
                        We have also seen the other extreme to this          buried pipelines. The port will be owned, constructed,
                   approach to public planning in which decision-            and operated by the Louisiana Offshore Oil Port, Inc.,
                   makers base their decisions on the interests of a         LOOP, a consortium of six oil companies. Construc-
                   small group, usually including themselves, and            tion is expected to begin by the end of this year,
                   studiously avoid and frustrate broader public input.      with operations commencing in 1980. The Offshore
                        Neither approach is desirable. Although good         Terminal Authority is the state agency which licenses
                   decisions, can come from either process, they dont        LOOP and monitors its activities.
                   usually arise because of any positive contribution of          The deepwater port is not a "controversial"
                   the planning process. in the past, the second ap-         project in Louisiana. Louisiana has had fisheries and
                   proach had the appeal of expediency. However, court       offshore oil production existing side by side for
                   decisions blocking major projects solely because of       many years, and realizes that with proper safeguards,
                   the expediency of that approach have detracted            one need not interfere with the other. (The same
                   severely from this process.                               holds true for oil wells in the highly productive
                        Hopefully, the problems of both types of plan-       wetlands.) Many individuals work in both industries
                   ning have had enough publicity to create an atmos-        in the course of a year. Louisiana also understands
                   phere which will encourage a more effective ap-           the need in this country for importing foreign petro-
                   proach to public planning - the cooperative               leum. Finally, Louisiana recognizes that a deepwater
                   approach. As used here, cooperation is not intended       port for supertankers, properly constructed and
                   to imply collusion or absence of conflict. It does        operated, is better economically and environmentally
                   mean that all interested parties have a comprehen-        than the alternative of continuing with increasing
                   sion of and respect for all facets of the question.       numbers of small tankers entering our ports.
                   Possibly, individuals would even begin to realize              Petroleum importation is a fact of life in this
                   their commonality of interests. Such a realization        country. The U.S. is now importing one-half of its
                   is the key to a true cooperative approach.                total petroleum needs, and almost every projection
                        I would like to describe a project, and the public   shows this dependence on foreign oil increasing
                   planning process surrounding it, which has benefited      for at least the next several decades.

                                                                            37

                       Louisiana is a major importation point for           increased quantities of foreign oil must be imported
                  foreign oil needed not only by our own refineries,        to keep its petroleum- refining and petrochemical
                  but also by refineries in the midwestern United           industries operating. The state's own petroleum
                  States. This oil is now transported up the Mississippi    resources were diminishing and new discoveries
                  River in small tankers which have received their oil      were not making up the losses. The state was also
                  from transshipment terminals in the Caribbean or          aware of the advantages of VLCCs and superports
                  from VLCCs in the Gulf of Mexico. These small             in the efficient and safe transportation of these
                  tankers deliver their cargoes directly to refinery        needed imports and in the preservation and growth
                  docks in Louisiana and to pipeline terminal facilities    of the state's economy.
                  for shipment to the Midwest.                                   Without a deepwater port, Louisiana's refineries
                       The use of VLCCs for long-haul foreign petro-        would increasingly import petroleum by small tanker
                  leum (such as from the Middle East or Africa) can         via the Mississippi River, with the attendant increased
                  save more than 30 percent in transportation costs         risks and costs, to keep existing refineries running.
                  over such transshipment or lightering operations.         Because of large capital costs, once a refinery is
                  VLCCs are generally safer than small tankers, since       built and tied into a product distribution system,
                  they are usually newer, well-equipped with naviga-        it is generally more economical to keep it running
                  tional aids, and manned with highly qualified per-        than to shut it down, even if the cost of supplying
                  sonnel. There are some inherent disadvantages to          feedstock increases. But, in the face of a decidedly
                  VLCCs, such as their being less maneuverable              uneconomical supply system, industry would
                  because of their large size, that make them less          probably allow process units to wear out without
                  desirable in situations like confined harbors or          replacement, and would tend to look elsewhere to
                  inland waters. Their deep draft as much as 90 feet,       locate expansions and new grass-root plants. This
                  makes it impossible for them to approach the major        would have a severe "ripple- effect' ' on the Louisiana
                  U.S. eastern and southern coast ports without ex-         economy, since a decline in refining would mean
                  tensive channel dredging. In some cases, such as the      a decline in availability of energy supplies and,
                  mouth of the Mississippi River, which has main-           perhaps more importantly, certain petrochemical
                  tained depth of 40 feet, it is considered technically     feedstocks. Conversely, with an efficient means of
                  infeasible to create and maintain a channel deep          petroleum supply, the state of Louisiana, because
                  enough for VLCCs, because of the large volume of          of the existing industrial and transportation infra-
                  silt constantly being deposited.                          structure, is an extremely attractive location for
                       Offshore deepwater ports solve these problems,       new refining and petrochemical capacity.
                  and others, by placing the port in natural deep water;         It should also be mentioned that, prior to 1972,
                  the need for environmentally disruptive dredging          there had been considerable discussion of a deep-
                  is eliminated, and the big ships remain in deep,          water port off the coast of Texas. It is probably
                  open water where there is little risk of collision        reasonable to assume that the normal competitive
                  and no chance of grounding. In addition, a deep-          feelings between the two states might have had some'
                  water port is a single, sophisticated importation         influence on Louisiana's interest in a similar
                  system, where navigation, mooring, and unloading          facility. (Seadock is the Texas project.)
                  can be closely controlled and where        * emergency         Early in 1972, recognition of these various
                  response equipment can be made readily available.         factors caused the then Governor-elect Edwin
                  Further, use of a deepwater port drastically reduces      Edwards to form the Louisiana Superport Task
                  the need for small tankers to transport oil upriver       Force, a blue ribbon commission of forty-six indi-
                  or to "lighter" from VLCCs in the Gulf, both of           viduals representing such diverse interests as ship-
                  which are relatively more hazardous. Two-thirds of        ping, manufacturing, labor, government, and envir-
                  all accidental oil spillage from tankers is the result    onmental groups. The task force was charged with
                  of collisions or groundings, which are more prevalent     three major goals: funding through private sources
                  in confined waters.                                       of preliminary legal, environmental, engineering,
                       In 1972, the state of Louisiana recognized. that     and economic studies of a deepwater port and its

                                                                         38

                   impacts; beginning a public information program to         on handling certain types of cargo at the deepwater
                   apprise the public of the need for a deepwater port;       port without the consent of the other ports.
                   and drafting legislation, to be presented to the 1972           With the creation of the Offshore Terminal
                   session of the Louisiana Legislature, which would          Authority as a functioning state agency, the ad hoc
                   create a state agency to deal with deepwater port          task force was dissolved. The Authority began its
                   development                                                program of promoting, planning, developing and
                        The studies revealed much significant informa-        regulating a deepwater port.
                   tion, and raised many new questions for subsequent              The first priority of the Offshore Terminal
                   study. This research presented a realistic picture         Authority was to introduce the citizens of Louisiana
                   of what a Louisiana deepwater port and its associated      to the concept of offshore ports. It was vital to inform
                   facilities would be like and what effects it would         and to assure the public that the state could benefit
                   have on the state's environment, economy, people,          greatly from a deepwater port without sacrificing
                   and government. Equipped with this picture, mem-           its environmental integrity or jeopardizing its
                   bers of the Sea Grant Legal Program at Louisiana           financial position.
                   State University were-able to prepare a set of recom-           Initial efforts to build deepwater ports off the
                   mendations on how to proceed with legal aspects of         coasts of Delaware, New York, and Maine all had met
                   the project                                                solid public opposition, largely because the people
                        The recommendations of the legal researchers          of those areas felt - rightly or mistakenly - that
                   were divided into four categories: state, federal,         the risks to the environment were too great. The
                   international, and environmental. Essentially, the         developers of those proposed projects did not make
                   recommendations supplied the data needed for the           an adequate effort to communicate the concept of
                   draft legislation establishing the Louisiana Deep          and need for offshore ports; nor did they pay adequate
                   Draft Harbor and Terminal Authority, now called the        attention to the li@gitimate concerns of environ-
                   Offshore Terminal Authority.                               mentalists.
                        This legislation was an important phase of                 On the other hand, the Louisiana Offshore
                   deepwater port development It not only set up a            Terminal Authority worked hard at establishing two-
                   first- of- its- kind state agency, but also spelled out    way communications with every possible part of the
                   in detail the criteria which would allow construction      populace of the state. A public information program
                   of an offshore port without allowing uncontrolled,         was, and is, an integral part of the Authority's
                   unsound consequences.                                      development plan. The people of Louisiana had to
                        The enacted state legislation defined the Off-        know about the project and its implications.
                   shore Terminal Authority's jurisdiction as "function-           Environmentalists were eager to know what was
                   al" rather than "geographic." This was important,          being planned near one of the most biologically
                   given the fact that a deepwater port, because of the       productive wetland areas of the world. The Authority
                   water depth required, was not likely to be built           was just as anxious to establish communication
                   inside the state's traditional jurisdictional limit        with the environmentalists, because their input
                   of three miles from shore. The Authority was given         was certain to contribute heavily to the environ-
                   exclusive powers which enable it to do everything          mental protection plan.
                   necessary for developing and regulating an offshore             Looking years ahead, the Authority began estab-
                   port The legislative act also placed a binding proviso     lishing information channels with other state and
                   on those powers. Before any development program            federal agencies, because a project of the magnitude
                   can begin, a comprehensive environmental protec-           of a deepwater port ultimately reaches many agencies
                   tion plan must be formulated and it must be fol-           and affects planning for the state.
                   lowed in all respects throughout the life of the                In a word, planning is one of the Authority's
                   Authority.                                                 biggest responsibilities. The Authority has encoun-
                        In addition, the act creating the Offshore            tered unique situations at each juncture, because no
                   Terminal Authority provided for the protection of          other agency in the U.S. had ever held the responsi-
                   existing Louisiana ports, including prohibitions           bility of developing, a deepwater port. The Authority

                                                                            39,

                  predated the federal offices set up to work with            comirdssioning an ecological study by the Louisiana
                  superports.                                                 State University Center for Wetland Resources.
                       The Authority's board began by organizing a                 Using the results of this study as a base and
                  staff. It was realized that the nature of the Authority's   incorporating additional data obtained from studies
                  work would be varied and constantly changing as             performed by the U.S. Army Corps of Engineers and
                  deepwater port development advanced. It was neces-          U.S. Department of the Interior and from three public
                  sary to have ready access to a diversity of talent,         environmental workshops, the environmental plan
                  although much of that talent would only be needed           was formulated by the director of the Authority and
                  on a temporary basis. The board decided that a              two prominent experts (from the Louisiana Wildlife
                  large staff would create an inefficient and inflexible      and Fisheries Department and from the LSU Wetlands
                  bureaucracy, and so chose a small, versatile staff          Center) as required in the statute creating the
                  and relied on consultants for Work in such special-         Authority.
                  ized areas as law, public relations, and engineering.            The Environmental Protection Plan summarizes
                       To form a basis for developing concrete plans          potential stresses and lists the specific criteria to
                  for deepwater port developments, the Authority              be considered in the development program. This
                  commissioned studies in economics, environment              enumeration is made in the statute also. Briefly
                  engineering, and legal jurisdiction.                        these criteria are:
                       A socio-economic impact study conducted on                  1. Site selection factors, including environ-
                  behalf of the S uperport Task Force, and subsequently       mental vis-a-vis economic ones. This section adopted
                  updated and expanded by consultants to the Author-          the policy of the Louisiana Advisory Commission on
                  ity, showed conclusively that a deepwater port would        Coastal and Marine Resources, and lists maximizing
                  have a major and favorable impact on the economy            the use of existing development and navigation
                  of Louisiana. As previously mentioned, the existence        corridors, avoiding existing oil and gas production
                  of an efficient, low-cost method of importing foreign       platforms, avoiding manmade sea-bottom installa-
                  petroleum into Louisiana will mean revitalization           tions and natural spawning sites, and minimizing
                  and growth of the state's refining and petrochemical        disturbance of coastal wetlands areas.
                  industries. Without such a system, these industries              2. Design requirements, including statements
                  would stagnate and eventually decline. The differ-          on how proposed designs minimize potential
                  ence between these two scenarios is what we mean            environmental dangers. Of particular interest is the
                  by the economic impact of the deepwater port The            portion of this section which controls long-term
                  latest studies project that the deepwater port, in          development so that growth and additions to the
                  its first year of operation, 1980, will be'responsible      port do not result in random expansion or gradual
                  for about 16,000 new jobs in refining, petrochemical,       environmental deterioration. As a preliminary deter-
                  and related industries, with new investment in these        mination, the plan favors a monobuoy-type system
                  industries amounting to some $2.3 billion. These            for handling crude oil. To ensure the Authority's
                  benefits are expected to increase in later years, with      means of controlling secondary development, pro-
                  projections showing over 30,000 new jobs and                visions of the plan limit and control "tie-ins" to the
                  approximately $5.6 billion in new investment gener-         pipeline system in wetland areas,
                  ated by the deepwater port by the year 1990. By                  3. Descriptions of operation procedures which
                  the way, the studies also show that, based on regu-         minimize environmental problems, and provisions
                  latory standards being enforced, our air and water          for enforcement of environmental regulations. This
                  will be cleaner in 1990 than they are today, despite        section sets forth construction and operational guide-
                  the expected expansion of industry. This is because         lines to minimize disruption of the coastal area. It
                  new industry will be required to be extremely clean,        also provides for a monitoring system to be con-
                  and existing industry will be required to sub-              ducted by the Louisiana Department of Wildlife
                  stantially reduce pollutant discharge levels.               and Fisheries. The enforcement provisions include
                       The process of developing the Environmental            measures for cleanup of accidental spills with evi-
                  ProtectionPlan required by state law was begun by           dence of financial responsibility to ensure perform-

                                                                             40

                    ance, and methods for extracting environmental                      2. Creates a single window licensing procedure
                    compensation from owners and operators judged                  under the secretary of transportation, and mandates
                    responsible for damages. To avoid unsound environ-             a maximum of 356 days for the processing of a
                    mental practices, owners or operators of any facility          license application.
                    under the Authority's jurisdiction are required to                  3. Establishes    liability for oil-spill cleanup
                    submit operational and contingency plans for                   costs and damages, places liability limits on vessels
                    approval.                                                      and deepwate'r ports, and establishes a fund to pay
                          4. Procedures for funding projects to com-               cleanup costs and damages not otherwise com-
                    pensate the coastal environment for losses resulting           pensated. (This part of the act is likely to be replaced
                    from deepwater port development In simple terms,               by similar language contained in uniform oil spill
                    the Authority can impose compensatory charges on               liability legislation presently under consideration
                    those who cause damage to the environment or                   in Congress.)
                    who violate environmental regulations. The money                    4. Makes a deepwater port and its facilities a
                    from these charges would be paid into a fund which             common carrier, providing nondiscriminatory use of
                    would be used to clean up oil spills and other pollu-          nonowners.
                    tion and to pay the costs of restoring the environ-                 The development of federal regulations to imple-
                    ment when damage has occurred. Money from the                  ment the Deepwater Port Act required almost one
                    fund could also be used to pay for environmental               year of study, public hearings, and comments. The
                    research projects or monitoring programs.                      licensing process was defined and guidelines for
                          5. A framework for coordinating Authority activ-         preparation of application documents were devel-
                    ities with those of other governmental agencies.               oped. Criteria and regulations for design, operations,
                          Following promulgation of the Environmental              and environmental impact were promulgated. In late
                    Protection Plan, the next major activity of the Author-        1975, the U.S. Department of Transportation was
                    ity was participation in the drafting of federal legisla-      ready to receive license applications for deepwater
                    tion and subsequent federal regulations. Because of            ports.
                    the need to locate deepwater ports beyond the terri-                In the state of Louisiana, a private corporation
                    torial limits of the U.S., to utilize naturally deep           had previously announced its interest in developing
                    water, because of the jurisdictional uncertainties             a deepwater port Louisiana Offshore Oil Port, Inc.,
                    which arise in such locations, and because of the              now known as LOOP, is a consortium of six oil
                    large number of federal agencies with potential                companies which have refining operations in
                    interest in deepwater ports, federal legislation was           Louisiana and in the Midwest Because of LOOP's
                    necessary to assure sound development of offshore              financial and technical capability of properly con-
                    ports.                                                         structing and operating the deepwater port and
                          The Deepwater Port Act of 1974 was introduced            because of LOOP's willingness to comply with the
                    by Louisiana Congressman John Breaux, passed by                state's Environmental Protection Plan and other
                    the Congress in December 1974, and signed into law             requirements the Offshore Terminal Authority deter-
                    by President Ford in January 1975. The Deepwater               mined that the best interests of the state would
                    Port Act accomplishes the following:                           be served by allowing private enterprise to construct
                          1. Places prime jurisdiction over deepwater              and operate the deepwater port.
                    ports constructed beyond the territorial limit in the               The Authority concentrated its efforts on its
                    hands of the federal government, but with express            , present major activities - licensing and regulation.
                    recognition of the rights and responsibilities of              The state licensing process paralleled and interfaced
                    states. States arelgiven preferential right to develop         with the federal licensing process. The Authority
                    deepwater ports off their coasts, may veto or place            was responsible for licensing and regulating those
                    conditions on privately developed deepwater ports,             parts of the deepwater port and related onshore
                    and can assess fees as compensation for economic,              facilities within the state jurisdiction. The Authority
                    environmental, and administrative costs attributable           was also responsible for advising the governor when
                    to deepwater port development.                                 his approval of the federal license was required.

                                                                                41

                 Because of this two-fold responsibility, and because       the Authority during construction and operation
                 the geographical demarcation between state and             will be to:
                 federal jurisdiction over the deepwater port is not              1. Review and approve detailed design and
                 clearcut, the Authority reviewed all aspects of the        operational and contingency plans.
                 project, both onshore and offshore.                              2. Inspect and oversee construction and opera-
                      Both federal and state licensing processes            tion for conformity with regulatory requirements.
                 required approximately one year, beginning with the              3. Administer the environmental protection
                 submission of LOOP's license applications in               plan and other regulatory requirements, particularly
                 December 1975. Detailed reviews were made on both          an environmental monitoring program, cleanup and
                 state and federal levels of technical design, environ-     compensatory programs (if needed), and admini-
                 mental and economic impact, operational and con-           strative cost reimbursement.
                 tingency procedures, legal ramifications, and                    The environmental monitoring program is
                 regulatory compliance. Numerous federal, state, and        worthy of specific mention. This program is not
                 local agencies in either the state or the federal          only a requirement of the state's license and environ-
                 licensing process, or both, were involved in the           mental pr6itection plan, but has also been incor-.
                 review of LOOP's plans. The Authority conducted            porated as a requirement of the federal license
                 detailed institutional studies and surveys to identify     and other federal permits. The monitoring program
                 state and local agencies with an interest in the deep-     is a comprehensive program covering all of LOOP's
                 water port, provided each with copies of LOOP's            facilities and operations, and is intended to detect
                 application doc  'uments, and incorporated their com-      environmental impact from the deepwater port and
                 ments into the state review. Public participation in       related onshore facilities. The program must be in
                 the board of commissioners' meeting was actively           operation months before construction begins. The
                 encouraged.                                                cost of monitoring will be borne by LOOP, as will
                      The federal licensing process also included the       all state regulatory costs under provisions of the
                 preparation of an environmental impact statement,          Deepwater Port Act. The monitoring program was
                 the holding of public hearings in Louisiana and            developed by the same group which developed the
                 Washington, and an extensive antitrust review.             environmental protection plan, and will be conducted
                 Numerous meetings between LOOP and federal and             by the Louisiana Department of Wildlife and Fish-
                 state officials resulted in several project changes        eries at an annual cost of approximately $300,000.
                 to ameliorate the expected impact.                       I Data from the program will be used to determine
                      Federal and state licenses were issued to LOOP        whether significant adverse impact has resulted
                 in January 1977. These licenses contain stringent          from construction or operation, and to plan needed
                 requirements regarding environmental protection,           ameliorative action and compensatory programs.
                 financial responsibility, liability for oil spills, non-         I have described a very active program of govern-
                 discriminatory usage, and indemnification of the           mental planning and regulation aimed at most effec-
                 issuing authority. Since final details of design,          tively developing a deepwatey port off the Louisiana
                 operation, and contingency procedures are yet to be        coast. The approach taken by the Offshore Terminal
                 developed, the licenses require approval of these          Authority has been one of genuine cooperation and
                 details before construction and operation can begin.       meaningful consideration of the interests of all
                 LOOP is required by the federal license to hold            concerned parties. In dealings with LOOP and other
                 ownership open for six months after issuance of the        private industry, with all levels of government, with
                 license, and must decide whether to proceed with           public interest groups and with individual citizens,
                 the project'within two weeks after that period, or by      the Authority has attempted to create trust in its
                 August 1, 1977. Seadock is under the same federal          integrity and reasonableness and has attempted to
                 time constraint.                                           keep that trust by actively seeking out points of
                      It is expected that LOOP will decide to proceed       view and fairly incorporating legitimate concerns
                 on August 1, and will be able to start construction        in its policies and programs. In addition to reflecting
                 by the end of 1977. The future regulatory role of          the interests of its constituency, the Authority has

                                                                          42

                 provided leadership and coordination in deepwater
                 port development.
                      I said earlier that the deepwater port was not a
                 controversial project in Louisiana. The people of the
                 state believe the port is being properly handled and
                 will benefit them economically and environmentally.
                 By taking an open and cooperative approach to
                 public planning, the Offshore Tern-dnal Authority
                 has helped both to create this favorable impression
                 and to assure Louisianians that the reality lives
                 up to the impression.

                                                                       43

                  A Case Study of Marine Recreation Conflicts in
                  Southern California

                  Susan H. Anderson

                  Marine Recreation Specialist, Institute for Marine and Coastal Studies, University of
                  Southern California

                       The seemingly vast coastline of California is         Because boating is "equipment intensive," land
                  a finite resource with increasing demands for its          space is needed for storage, if boat ramps are used
                  use. Although there are 300 miles of island coast-         for access. Fishermen may need boat access or may
                  line in addition to 1072 miles of shoreline, less          find rocky coasts or piers and jetties suitable for
                  than 25 percent of this is available for public            their use. Surfers and swimmers need sandy beaches
                  recreation.                                                with different nearshore bottom configurations to
                       The Southern California coast faces particularly      provide good surf or no surf. Scuba divers seek areas
                  heavy pressures. Los Angeles and Orange Counties           with considerable bottom life, often off rocky shore-
                  have a population density of over 500 people per           lines and bluff areas where shore access is very diffi-
                  square mile. This has contributed to heavy air pollu-      cult.
                  tion which is trapped by the mountain ranges to                 Owners of private coastal property and prop-
                  the east and north of the Los Angeles Basin. To            erties within closed gate communities frequently
                  get away from the smog and to benefit from the             make exclusive recreational use of their coastal
                  cooler air temperatures nearer the ocean, many             frontage. Coastal 'hotels, restaurants, and shopping
                  people have sought homes in the nearby coastal             promenades in harbors provide commercial recrea-
                  area.                                                      tional opportunities. Public, free access is often
                       The coastal area is also a focus of commerce          restricted by these private, commercial, and special
                  and industry. The Los Angeles and Long Beach               interests.
                  Harbors are major ports for oil importation and                 In Southern California, we can perhaps under-
                  general cargo-shipping and support facilities. Power       stand the conflicts better if we review the number
                  plants, sewage treatment facilities, and airports          of people and the number of coastal recreation
                  are located on the coast to take advantage of the          user-days. Here there are over I million boaters
                  ocean environment.                                         actively pursuing this sport on 27 million occasions
                       With over I I million people in Los Angeles and       per year. There were an estimated 9,165,000 angler
                  Orange Counties and year-round good weather, the           days in Southern California in 1975 and 2 million
                  coast is extremely popular for recreation. While the       dive occasions. in that same year, Los Angeles and
                  weather changes sufficiently to vary the numbers of        Orange Counties together calculated 167 million
                  coastal users throughout the year, even in the cooler      beach-use days. In all of Southern California there
                  weather the coast has considerable appeal.                 were an estimated 225 million sightseeing days,
                       Even among recreational users there are varying       including such activities as photography, painting,
                  pressures for use. Each kind of user - the boater,         exploring, and study.
                  fisherman, surfer, swimmer, scuba diver, sunbather,             This heavy demand results in traffic and parking
                  photographer - requires, different facilities and ter-     congestion. Southern Californians rely heavily on
                  rain. Boaters need harbors and marinas or boat ramps.      private automobiles for access to ffie beach. There

                                                                          44

                   are photographs as early as 1930 that show bumper-         deafening roar of a departing jet. Just south of the
                   to-bumper traffic en route to Newport Beach on a           airport are a sewage treatment facility and a power
                   Sunday afternoon - evidence even then of the               plant that further detract from the environment
                   regional demand placed on beach cities.                    of this beach.
                        Although many parking lots have been built                 For many years the Los Angeles'Harbor Depart-
                   near public beaches to accommodate beach visitors,         ment issued only month-to-month leases to marinas
                   there are a number of public beaches adjacent to           in order to leave maximum opportunity for new
                   densely populated residential areas that are with-         commercial shipping facilities. The result has been
                   out adequate parking facilities. On-street parking         a miserable collection of marinas, with minimum
                   by beach visitors frequently conflicts with residential    facilities, cheaply constructed, because of constant
                   parking requirements.                                      concern that their leases- would not be renewed.
                        Few public transit lines are available to alleviate   Finally in 1976, the Harbor Department altered
                   the  parking dilemma, but there are some notable           its policy and issued some twenty-year leases for
                   exceptions. Orange County Rapid Transit District           marinas that are in the Cerritos Channel area- of
                   does have a line that delivers many people to the          the harbor.
                   beaches on the Balboa Peninsula in Newport Beach.               There is especially intense pressure on the Los
                   In Laguna Reach a shuttle bus runs between cars            Angeles---Long Beach harbor area for major expansion
                   parked several miles from the beach and the shore-         of recreational boating facilities, since the, recent
                   front shop's and beach boardwalk However, lack of          coastal legislation almost entirely restricts new
                   support for a similar shuttle bus run by a private         boating facilities to existing developed harbors. One
                   entrepreneur near Marina Ael Rey stopped that              particular fight between the boating community and
                   effort after a short trial period, despite the fact        the Los Angeles Harbor District has been over
                   that on some weekends people cannot find available         development of Reeves Field as a recreational harbor
                   parking in this popular marina area.                       with substantial land use for boat storage as well
                        Along some stretches of the Southern California       as picnic areas. The harbor management personnel
                   coast, residential development is so dense that one        have argued that this parcel is essential as a fill
                   cannot even see the ocean. For instance, along the         site for dredge spoil, to be then used for car storage
                   Pacific Coast Highway in parts of Santa Monica and         facilities or as a proposed LNG terminal. They have
                   Malibu, a sightseer is confronted with a solid "China      suggested the Fort MacArthur site as an alternative
                   Wall" of garage doors. Many of the homes here do           recreational harbor, but have not addressed the
                   not even have windows on the inland side, and the          questions of land title to that area, suitability of
                   walkways are blocked by wooden gates.                      the space for dry boat storage, effect on water
                        Many of the marinas in Los Angeles and Long           quality of nearby beach, nor the conflict posed by
                   Beach Harbors are surrounded by industrial shipping        the existing deep draft Union Oil Terminal. In this
                   facilities and barely have enough parking space for        harbor complex, with one of the area's oldest and
                   the boat owners they serve. There are no park areas        most prestigious yacht clubs, the boaters have
                   around these marinas for public enjoyment of them.         banded together in an effort to gain significant
                   Even Marina del Rey, built to berth nearly 6,000           additional marina space in the harbor.
                   boats, has only two shore areas designed for public             Commercial support facilities for recreational
                   access to the marina, plus several shoreside               activities, particularly boat repair and service
                   restaurants.                                               shops, have difficulty competing for space on the
                        A few  of the sandy beaches most accessible           coast even though they are water- dependent. Un-
                   to the downtown Los Angeles area have become               fortunately, coastal properties taxed for "highest
                   environmentally unpleasant because of industrial           and best use" favor condominiums and restaurants
                   facilities in the adjacent upland area. The Los            whose incomes can better offset the high taxation.
                   Angeles Airport take-off pattern is directly over               The recreational users further feel the impacts
                   El Segundo Beach. Every four or five minutes all           of conflicting coastal uses through resource deple-
                   communication on the beach is stopped by the               tion. The sports fishermen find and catch fewer

                                                                           45

                  fish per unit of effort (partly because of increased        mercial recreational uses of the coast over private
                  numbers of fishermen, but also because estuarine            residential use, general industrial, or general com-
                  habitats for juveniles have been destroyed or severely      mercial development, but not over agriculture or
                  polluted through development).                              coastal dependent industry. It recommends that
                       Pollution in some areas has weakened plant and         public facilities be distributed throughout an area
                  faunal life in underwater environments, allowing            to limit the impacts of overuse and overcrowding.
                  biological communities to be destroyed and replaced         Furthermore, the act recommends the protection,
                  by heartier species such as urchins. Coastal areas          encouragement and, where feasible, the provision of
                  depleted of kelp may be less interesting for diving         lower cost visitor and recreational facilities (e.g.,
                  activities and often support fewer fish. During the         campgrounds and parks).
                  last ten years pollution from Palos Verdes Peninsula             To alleviate the parking conflicts, the Com-
                  runoff has decreased and biological communities in          mission has required the provision of on- site parking
                  some of the underwater environments have gradually          spaces for new coastal developments. Through
                  improved. Researchers have done some experimental           development of local coastal programs under the
                  kelp transplants in Abalone Cove on the Palos Verdes        provisions of the act, impacts of recreational facili-
                  Peninsula to try to reestablish the once lush macro-        ties on traffic congestion will be reviewed and
                  cystis (kelp) environment.                                  attempts will be made to mitigate traffic problems,
                       While most of the beaches in Southern Cali-            perhaps through wider distribution of new facilities.
                  fornia maintain sufficiently high water quality to               The limited space available for boat berthing
                  remain open for swimming, shellfishing is often             will continue to be a problem. The act does allow
                  prohibited because of the concentration of pollutants       for  expansion and development of new marinas
                  in these filter feeders.                                    within existing harbors, but the port commissions
                                                                              that control the Los Angeles and Long Beach harbors,
                  What Is Being Done?                                         where the greatest pressures are, have shown tremen-
                                                                              dous resistance toward accommodating recreational
                       In 1972, in accordance with Proposition 20,            needs. The ports must submit master plans to the
                  the California Coastal Commission was formed to             Coastal Commission for approval, thus giving the
                  design a conservation plan for the future develop-          Coastal Commission an opportunity to place condi-
                  ment and preservation of California's coastal zone.         tions on the port plan. However, there is no clear
                  The resulting plan was submitted to the legislature         indication at this time that recreational needs will
                  in 1976, and significant portions of it became the          be given higher priority than even a portion of com-
                  California Coastal Act of 1976.                             mercial port facilities.
                       The act emphasizes protection of environmental              The Coastal Act does encourage development of
                  resources (aesthetics as well as habitats, agriculture,     additional boat-launching ramps and increased dry
                  and other natural resources), public access, and            storage facilities. Many of the smaller boats now
                  recreational opportunities. It refers to the right of       occupying berthing space may be forced out of the
                  the people under the California Constitution to access      water by the growing shortage of available berthing
                  to the sea "where acquired through use, or legisla-         facilities.
                  tive authorization." It requires that. (with some                A companion act to the Coastal Act of 1976
                  exceptions) public access from the nearest public           established a California Coastal Conservancy. The
                  roadway and along the coast be provided in new              conservancy is empowered to acquire accessways and
                  development projects. While there is little oppor-          buffer zones adjacent to recreational areas and
                  tunity, under the provisions of the act, to change          environmentally fragile habitats, which will enhance
                  existing barriers to access, the Coastal Commission         the quality of the recreational experience and the
                  has set a precedent for approving permits for change        richness of the habitat areas. The conservancy can
                  to existing development only on condition that              also make advance loans to coastal communities
                  public access is provided.                                  for areas to be acquired within ten years. The con-
                       The act gives priority to visitor-serving com-         servancy should ease some of the burden on local

                                                                           .46

                   governments of increasing public access and preserv-        What Are the Outstanding Issues?
                   ing habitats and agricultural open space. The effec-             In  ISouthern California there is little interest
                   tiveness of this act has not yet been tested.               in seeking public transportation solutions to recrea-
                        A third statewide measure that will affect public      tional access (or any other problems!). Much of the
                   access and recreation on the California coast is the        traffic and parking congestion could be alleviated if
                   Parklands Acquisition Bond Act, which was passed            public transportation were accepted by the public.
                   by the voters in November 1976. This authorizes             For example, office parking areas used heavily during
                   the issuance of bonds to fund parkland acquisition,         the week could be used on weekends by beachgoers
                   a portion being allocated for identified coastal            who would travel the last few miles to the beaches
                   parcels.                                                    in shuttle buses. Also public transportation could
                        At the local level, action is being taken to           be used to distribute use of the beaches.
                   improve marine recreational opportunities too. In                Because the beach communities cater to regional
                   1974, the County of Los Angeles was given a title           as well as local demands, they are bearing a burden
                   easement for use of much of Catalina Island as a            of financial responsibility for maintenance and
                   cons&rvation and recreational area. Very careful            development of increased access and facilities.
                   planning is being carried out to ensure that the            Although the local coastal programs mandated by
                   quality and uniqueness of the island are maintained,        the Coastal Act are supposed to identify regional
                   while increased hiking, camping, and sightseeing            demand on local coastal facilities, there is no
                   opportunities are developed.                                established provision for compensating communities
                       The Los Angeles County Department of Beaches            for the extra financial burden encountered. To place
                   has an excellent long-term acquisition program              direct use charges on nonlocal users is deemed
                   for new beach areas. Many of the newer beaches              discriminatory and tends to intensify the lack of
                   acquired are in more fragile environments and               access experienced by those who cannot afford to
                   include rocky tidepool shorelines as well as sandy          live on the coast.
                   beaches. Considerable effort is being made to design             A further financial burden is experienced by
                   the facilities to protect the resources while increasing    the coastal communities when new coastal areas are
                   access. Unfortunately budget limitations deny public        acquired for public use and are thereby taken off
                   education opportunities that would encourage proper         the tax rolls. The cost of maintenance and beach
                   use of particularly fragile areas of access. Interpretive
                   signs have been planned, but have not been imple-           safety goes up while the,. local revenues are de-
                   ,mented in these areas.                                     creased. The dilemma has been posed, but no resolu-
                       The Los Angeles County Department of Beaches            tion has been determined. Most public money comes
                   has also been responsible for the development of ten        from taxes, so the public in the long run must
                   accessways from the nearest public road to the beach        bear the responsibility.
                   in the Malibu area. Public rights-of-way have been               The determination to be made is what should be
                   found through property title searches and the public        the size and composition of the tax base supporting
                   option for the corridors has been exercised. These          a facility meeting regional marine recreation
                   accessways allow the public to walk along the beach         demands. Boating facilities in California are in fact
                   from the water up to the mean high tide line. They          supported by boater fuel taxes. Most of the beach
                   especially increase opportunities for surf fishing,         and park facilities have been supported by local com-
                   scuba diving, tidepool observation, and beach walks.        munities or coastal counties, but as increased access
                       In Newport Beach, in Orange County, a new city          is developed there is considerable concern that the
                   policy increases the density allowance of marine-           burden of responsibility should be subsidized by a,
                   related uses of coastal properties as an incentive          broader base, such as the State General Fund.
                   to keep marine businesses on the coast despite high
                   land costs and taxation. The theory is that with
                   higher density allowances these businesses will be
                   able to afford the coastal location.

                                                                            47

                 Patterns of Jurisdiction in the Coastal Belt

                 Lewis Alexander

                 Professor of Geography and Marine Affairs, University of Rhode island

                      Issues of conflict resolution in the coastal         control management at the state level. Responsibili-
                 belt inevitably involve the question of jurisdiction,     ties for regulation and enforcement may be shared
                 that is "Who has the authority to make decisions?"        by a group of departments, such as the Department
                 There may be one single agency or several agencies.       of Health and the Department of Natural Resources.
                 More than one level of government may be involved.        But the federal government may also be involved
                 And since both the coastal zone concept itself and        through the Environmental Protection Agency, the
                 some of the offshore zones of control are relatively      Office of Coastal Zone Management, and the Army
                 new phenomena, considerations of jurisdiction in          Corps of Engineers. And local agencies may also be
                 the coastal belt are still often unresolved - a fact      concerned in the management process, as for
                 which serves to complicate the management process.        example a town conservation commission or plan-
                      The question of jurisdiction has two dimensions,     ning board.
                 one geographical and one functional. Geographically,           Geographical and functional elements of juris-
                 there is the issue of boundaries - where are the          diction form a complex mosaic within the U.S. coastal
                 limits of various juridical zones, such as the terri-     belt. The boundaries of juridical zones are frequently
                 torial sea and the continental shelf? Where are the       indistinct. Where for example are the inland bound-
                 boundaries of U.S. offshore zones where they abut         aries of the "coastal zone" of the various states?
                 the zones of Canada, Mexico, or Cuba? When seen           Where are the offshore boundaries separating one
                 from a functional standpoint the question has two         state's waters from another state's? As noted earlier,
                 sets of factors to be considered. First, there is the     there are still a great many uncertainties concerning
                 level of government which has authority over all or       jurisdictional issues in the coastal belt. This paper
                 some activities within juridical zones of the coastal     does not attempt to resolve such uncertainties, but
                 belt. The principal governmental levels are inter-        rather suggests a conceptual framework within which
                 national, national, state, and local. The term "local,"   questions of authority may be considered.
                 as used here, refers to minor civil divisions, such as    Boundaries and Zones of Jurisdiction
                 counties, cities, and townships, as well as "special
                 purpose" administrations, as in the case of land               The most critical geographic point in the coastal
                 use and coastal zone management groups.                   belt is the tidal area, that is, the zone between high
                      A second functional aspect concerns the agencies     and low tideline. This is the contact point where the
                 at various levels of government which have the            land and water environments intersect one another
                 responsibilities for regulating and managing activi-      and where the physical effects of interaction between
                 ties within the coastal belt. Such responsibilities       the two environments are the strongest. The hori-
                 often overlap one another, both within the context        zontal extent of the tidal zone may be a mile or
                 of particular governmental levels as well as between      more, or it may be zero. On the upper courses of
                 such levels. Take, for example, marine pollution          rivers and creeks, for example, the tidal range may

                                                                         48

                  be nonexistent so that the high and low tidelines          by a line from Point Judith eastward to Sakonnet
                  may be the same; in the case of precipitous cliffs         Point. Waters within the Bay are internal; from the
                  facing the sea there is vertical movement of water         straight baseline seaward the three-mile territorial
                  throughout the day, although no horizontal change.         sea is measured.
                  But regardless of the variations in its physical nature,        Within the territorial sea the United States
                  the tidal area of the United States is a primary ele-      exercises complete sovereignty, save for the right
                  ment in coastal belt jurisdiction and management.          of innocent passage through territorial water by
                       There are several categories of tideline. Among       foreign vessels. Passage is considered to be innocent
                  these are mean high and mean low water, mean spring        so long as it is not prejudicial to the peace, good
                  tide, and mean lower low water. The latter is the          order, or security of the coastal country. Foreign
                  lower of the two low waters of any tidal day, and          vessels may not fish in the territorial sea, foreign
                  is important if there is considerable difference in        submarines may not transit submerged, and there is
                  the location of the low-water line between the first       no right of overflight of territorial water by foreign
                  and the second low tides of the day. The choice of         aircraft While the United States, for 194 years, has
                  tidelines is important when one comes to measure           clung to a three-mile-wide territorial sea, a majority
                  the territorial sea and other offshore zones of control.   of the world's coastal nations now claim twelve miles.
                  The further out a country places its baseline for such     Some claim in excess of twelve, a few even to 200
                  measurements, the further offshore its jurisdiction        miles.
                  extends. Along the Atlantic and Gulf coasts, the U.S.           By the Submerged Lands Act of 1954 the United
                  measures seaward from the line of mean low tide;           States relinquished to the coastal states ownership
                  on the Pacific coast, the baseline for measurement         of the offshore areas out to three nautical miles from
                  is the line of lower low tide. The choices of tideline     shore; therefore, the living and nonliving resources
                  are also important, of course, to municipalities and       of the territorial sea, and of the seabed and subsoil
                  property owners along the coast. Laws vary, for            underlying that sea, belong to the coastal state.
                  example, from state to state with respect to property      Exceptions were made in the Gulf of Mexico off the
                  owners' rights in the tidal area between high and          coasts of Texas and Florida, where, because of
                  low tide. And they vary also according to the original     "historic rights," state ownership extends to nine
                  source of title to the property.                           miles from shore. Beyond the boundaries of state
                       Although the use of the tideline for measuring        jurisdiction, marine resources (particularly oil and
                  offshore zones of control is generally appropriate         gas) belong to the federal government.
                  along smooth shorelines, complications may arise in             Another offshore area is the contiguous zone,
                  the case of rugged or island-fringed coasts, coasts        which lies between the three-mile outer limit of
                  marked by bayous or swamps, the expanding deltas           the territorial sea and a distance of twelve miles
                  of rivers, coral atolls, and modifications made to         from the coast. This is a special zone of the high
                  the coast by man in the form of jetties, harborworks,      seas in which the United States has the right to
                  and other structures. For most of these situations         take steps to prevent violations of its customs,
                  there are generally recognized procedures for delimit-     fiscal, sanitation, and immigration laws. Such steps
                  ing the baseline from which the breadth of the terri-      could include the boarding and arrest of vessels
                  torial seais measured, although differences may exist      within the zone which are suspected of engaging in,
                  among countries on such issues as the proper condi-        or planning, illegal activities within the United States
                  tions for delimiting straight baselines along irregular    or its territorial sea. The U.S. applies the Federal
                  coasts, or the criteria which should be used for           Water Quality Improvement Act within this area.
                  designating certain coastal waters as "historic" in             The U.S. also has laws prohibiting the discharge
                  nature. The waters of bays, estuaries, or other features   from tankers of oil or oily mixtures on the high
                  across whose mouths straight closing lines have been       seas beyond its contiguous zone. According to the
                  drawn have the status of internal waters. Over such        1962 Amendments to the International Convention
                  areas the United States has complete sovereignty.          for the Prevention of Pollution of the Sea by Oil,
                  Narragansett Bay, for example, is closed off juridically   prohibited zones are set up extending to 50 miles

                                                                           49

                   off the coasts of countries which are party to the        zone formula are coastal state rights out to 200
                   Convention. Discharges of oil and oily mixtures are       miles to regulate the construction of artificial
                   forbidden within such zones. In addition there is         islands and installations, and the production of
                   a special prohibited zone off the northeastern U.S.       energy from water, currents, or winds. Only time will
                   and Canada which at one point in the Georges Bank         tell if the United States may begin moves toward
                   area extends More than 140 miles seaward of the           asserting authority over vessel-source pollution
                   nearest point along the U.S. coast. The U.S. has the      and other activities within the 200-mile fisheries
                   right within the prohibited zone to monitor foreign       conservation and management zone.
                   tankers with respect to the willful discharge of oil,          A final juridical belt is the continental shelf,
                   although the prosecution of violators is the responsi-    extending seaward from the territorial sea to a depth
                   bility of the country whose flag the vessel is flying.    of 200 meters, or just over 600 feet. The United
                       On March 1, 1977, the provisions of the Fishery       States has exclusive jurisdiction over the exploration
                   Conservation and Management Act went into effect,         and exploitation of the resources of the seabed and
                   establishing an exclusive fishery zone for the United     subsoil of the shelf, including not only oil, gas,
                   States to a distance of 200 miles from shore. Within      and placer deposits such as sand, gravel, and mineral-
                   the zone, the U.S. has jurisdiction over all fisheries    ized sands, but also living resources of the shelf -
                   except highly migratory species, particularly tuna.       that is clams, mussels, and certain species of crab.
                   These are to be managed by an appropriate inter-          Several years ago, the United States, in a unilateral
                   national authority. In addition, the United States        move, included also lobsters as "creatures of the
                   claims jurisdiction over anadromous species (e.g.,        -shelf." The outer edge of the shelf in some cases
                   salmon) of U.S. origin, wherever they may be located      lies less than 200 miles from shore and in other
                   on the high seas outside the territorial or fisheries     cases is well beyond 200 miles. The authority claimed
                   zones Of foreign countries. Not only is the Conser-       under the Fishery Conservation and Management
                   vation and Management Act itself unilateral in nature,    Act does not extend to the seabed and subsoil.
                   but so too is the provision regarding anadromous               The provisions of the 1958 Continental Shelf
                   species. While there is some precedence for the 200-      Convention contain a description of the outer limits
                   mile act in terms of current negotiations now going       of the juridical shelf as being at a depth of 200
                   on at the Third Law of the Sea Conference, and of         meters, or beyond where the depth admits of the
                   state practice, as exemplified by the actions of          exploitation of the natural resources of the area.
                   Canada, Mexico, Iceland, and the EEC, there is no         In other words, according to that convention, once
                   precedence whatever for the claims to jurisdiction        a coastal state has the technological capacity to
                   over anadromous stocks wherever they are found on         exploit the resources of the seabed and subsoil at
                   the high seas. But the implementation of customary        depths greater than 200 meters, it can also claim
                   international law works in mysterious ways. Who           jurisdiction over these resources. Most international
                   could have foreseen at the time that Truman's Procla-     lawyers agree that if one country demonstrates this
                   mation of U.S. rights on the continental shelf, or        capacity, and issues a claim to shelf areas beyond
                   Norways delimitation of straight baselines along its      the 200-meter isobath, all other coastal states of
                   North Sea coast, would eventually become accepted         the world can file similar claims. Ocean technology
                   as tenets of international law?                           is a mobile element, and the capacity one country
                       It should be noted that in the terms of the           has can generally be purchased Or otherwise made
                   Fishery Conservation and Management Act, the              available to other countries as well. But since 1964,
                   United States asserts jurisdiction over fisheries         when the Continental Shelf Convention came into
                   resources only. This regime differs from that en-         force, no coastal state has, on the basis of techno-
                   visaged in the "economic zone" concept as espoused        logical capacity, laid claim to shelf areas beyond
                   in Law of the Sea Conference negotiations, in that        the 200-meter depth. The deepest commercial oil
                   the latter includes coastal state jurisdiction over       exploration, for example, is currently at less than
                   environmental control and scientific research within      500 feet.
                   200 n-dles from shore. Also involved in the economic           It is anticipated that the exploitability criterion

                                                                           so

                 will shortly be overtaken by events. At the current        become involved in environmental impact state-
                 law of the sea negotiations coastal states are talking     ments, inasmuch as pollution from activities on
                 about national claims to the resources of the entire       federally owned lands may soon come to affect
                 continental margin - shelf, slope, and rise - out to       state waters as well. Or consider the federal/state
                 some point at the "outer edge" of the rise. What           aspects of superport construction in the Gulf'of
                 this point will be is still undetermined: the, 2,500-      Mexico or off the East Coast of the U.S., including
                 meter isobath, a location some miles seaward of the        the right. of state veto of the federal license for
                 contact line between the slope and the rise, a line        an offshore port.
                 based on the depths of sediment on the continental              There are those who would argue that what we
                 rise, or perhaps at the "last grain of sand" of the        need is one superagency to handle activities in our
                 rise itself. But however the "outer edge" may be           offshore areas, including the seabed and subsoil.
                 defined, it seems likely that state practice will soon     There are others who would say that what is required
                 be that coastal countries have jurisdiction over the       is a return of the National Council on Marine Re-
                 living and nonliving resources of their entire conti-      sources and Engineering Development, or a similar
                 nental margin.                                             interagency group, which can pull together the
                      Within the various zones of offshore jurisdiction     various federal units associated with coastal belt
                 the United States shares its authority with the inter-     development. One could even go further than the
                 national community. The U.S. is insistent on provid-       national council concept and suggest some initiative
                 ing that the waters beyond territorial sea limits          in which the individual coastal states can themselves
                 have the status of high seas, with their attendant         participate. I shall return to this interagency concept
                 freedoms for all nations to enjoy. Yet, given those        shortly; first let us consider the coastal zone concept
                 rights which the United States itself maintains in         as part of the coastal belt complex.
                 these offshore zones, two questions emerge.'First,              The idea of the coastal zone as a discrete
                 which activities in the offshore areas come under the      geographical unit seems to have surfaced in the 1969
                 purview of the federal government, and which are the       report of the Stratton Commission; it was formally
                 responsibility of the individual states? Second, within    embodied in the 197 2 Coastal Zone Management Act.
                 the federal and state branches of government, which        Two things are of interest here: the seaward and
                 particular agencies have authority over coastal            landward limits of the coastal zone, and the pro-
                 belt phenomena?        -                                   visions in the act for federal/state interactions. The
                     The answers to these questions may be complex.         seaward limits of the coastal zone are the limits of
                 For example, the National Marine Fisheries Service         the territorial sea, that is, three nautical miles from
                 of the Department of Commerce has jurisdiction over        shore, Should the U.S. territorial sea eventually be
                 fisheries matters within the 200-mile zone, but its        expanded to twelve miles, under existing legislation
                 authority is restricted (1) by the eight regional fish-    the seaward limit of the coastal zone would also be
                 eries management councils; (2) by the coastal states       twelve miles. The landward limits, as defined by the
                 with respect to fisheries which are carried out pre-       act, are left to the states. Specifically, the 1972
                 dominantly within coastal state waters; and (3) by the     legislation states "The definition of the coastal zone
                 Department of State with respect to fisheries involv-      in the Act recognizes that no single geographic
                 ing neighboring countries, and to the allocation of        definition will satisfy the management needs of all
                 quotas of surplus catch to foreign states '. As another    coastal states, because designation of the coastal
                 example, the Bureau of Land Management of the              zone for management purposes must take into
                 Department of Interior has jurisdiction over the           account the diverse natural, institutional, and legal
                 leasing of continental shelf areas for oil and gas         characteristics that are subject to decisions made
                 exploration and exploitation, but the Environmental        in fulfillment of othe r requirements of the Act . . ."
                 Protection Agency has a major role in the determi-             The practice of states varies considirably so far
                 nation of acceptable pollution levels for hydrocarbon      as determination of this jurisdictional inland
                 development. And the agencies of any state off             boundary is concerned. Texas, for example, defines
                 whose shores oil- and gas-leasing is taking place          its coastal area as comprising all counties having

                                                                         51

                    tidewater shoreline; California and Oregon define         "prior to granting approval of a State program the
                    the landward boundaries of their coastal zones as         Secretary of Commerce must find that the [state]
                    the crest of the coastal mountain ranges, while           management program provides for adequate con-
                    Delaware and New Jersey describe the inland               sideration of the national interest in the siting of
                    boundary of the zone in terms of their highway            the facilities which are other than local in nature."
                    system. Florida and Louisiana define the landward         When we run out of suggestions on jurisdictional
                    boundary of their coastal zones from the standpoint       problems we might then turn our attention to addres-
                    of the extent inland of maritime influences, while        sing the issue of what constitutes the national
                    Rhode Island gives its Coastal Zone Management            interest.
                    Council authority not over a fixed geographic area,           The jurisdictional problems in the coastal belt
                    but rather inland from the coast as far as necessary      are becoming increasingly complex. The United
                    to conduct effective management programs.                 States may soon extend seaward its jurisdictional
                         Since all of these definitions are only a few        claims to the resources of the seabed and subsoil.
                    years in existence, it is still too early to suggest      It may soon increase its claims to competence within
                    which definitions are superior to other ones. But it      the 200-mile zone. It must soon work out its maritime
                    should be noted that both the federal legislation and     boundary problems with neighboring states (and if
                    the responses of at least some coastal states imply       one considers the offshore boundaries not only of
                    the functional character of the inland coastal zone       continental United States, but of its territories as
                    limit. This follows from the fact that the coastal        well, the number comes to over thirty-five). The U.S.
                    zone itself is largely a functional phenomenon. But       must face increased problems not only of offshore oil
                    there may be an analogy between functional bound-         and gas production, but of transportation of these
                    aries on land and certain of those in the sea. Might      products, as for example from Valdez, Alaska, to the
                    not offshore management make more sense in terms          U.S. west coast. In addition, the individual coastal
                    of concrete pheriomen" a or processes than of rigidly     states will be developing and implementing their
                    proscribed limits? Som   ,e years ago, for example,       own coastal zone management plans which must be
                    the United States suggested that fisheries in its         tied in with the new offshore rights and responsi-
                    coastal waters beyond narrow territorial limits might     bilities. What does all this portend in terms of
                    better be handled from the "species approach"             jurisdiction?
                    rather than from a sharply defined 200-mile limit.            In the panel presentations which follow this
                    In years to-come, coastal countries with well-defined     opening paper, you will hear many statements on
                    commercial stocks, which at times pass more than          jurisdictional issues from the standpoint of fish-
                    200 miles from shore, can be expected to retain           eries, oil and gas, transportation, and pollution.
                    management functions over these resources even            But let me return momentarily to my theme of the
                    when they are beyond the 200-mile zone. What is           need for coordination. The coastal belt is a geo-
                    true of fisheries might also hold for environmental       graphical entity, and as such its needs and oppoy-
                    protection, and for the unity of deposits of offshore     tunities should not necessarily be approached on a
                    hydrocarbons.                                             piecemeal basis. There could be a lead agency
                        In a system as complex as the coastal zone,           responsible for orchestrating activities in the coastal
                    state and federal jurisdictions often overlap one         belt. Or there could be a return to an interagency
                    another, as do the jurisdictions of agencies at the       organization with a coordinating role. Whatever the
                    federal, state, and local levels. The 1972 Act speci-     procedure used, one caveat is important. Whatever
                    fically excludes from the coastal zone those lands        restructuring the federal government may undergo in
                    the use of which is by law subject solely to the          the interests of the coastal belt, some mechanisms
                    direction of, or which is held in trust by, the federal   must be established for continuous interaction with
                    government. The panelists this morning will go in         the individual coastal states. This implies, of course,
                    some detail into aspects of federal/state conflict        that the coastal states themselves will evolve appro-
                    and conflict resolution in the coastal belt. But I        priate institutions and procedures for -responding
                    would, in passing, like to point out one of the           to federal initiatives for interaction. Only in these
                    more interesting provisions of the Coastal Zone           ways can the new real estate which the U.S. has
                    Management Act, Section 302(a) which reads in part        acquired be effectively organized and managed.

                                                                            52

                   implications of the Changes in Fisheries Law for
                   the U.S. Coastal States

                   Francis X. Cameron

                   Assistant Professor, Marine Affairs Program, University of Rhode Island

                        During the past several years a number of             Court of Alaska adopted a radical extension of this
                   significant changes have occurred in the area of           doctrine by upholding the right of the state to regu-
                   fisheries law. I'd like to concentrate on how these        late the harvesting of crabs by citizens and non-
                   changes affect state authority over fisheries and will     citizens alike in the Bering Sea, outside of Alaskan
                   address three broad areas: the effect of the Fishery       territorial waters. The court, in a broad interpretation
                   Conservation and Management Act (FCMA) on the              of prior law, deemphasized the importance of the
                   states, the opportunities presented by the Coastal         citizenship requirement and placed primary im-
                   Zone Management Act, and the effect of some judicial       portance on the legitimate state interest require-
                   decisions on state law.                                    ment. The legitimate interest was the importance. of
                       A number of court decisions have upheld the            crab-fishing to the Alaskan economy and the need
                   authority of the states to regulate fisheries within       to conserve the stocks wherever they were found.
                   the three-mile territorial sea and this case law was       This argument may make sense from a fisheries
                   further reinforced by the Submerged Lands Act              management point of view but, from a legal stand-
                   passed in 1953. This act granted the coastal states        point, there was no basis for the exercise of state
                   ownership of and the right to manage the natural           jurisdiction, since it was outside of state waters
                   resources within the three-mile territorial sea. The       and the fishermen had no institutionalized con-
                   FCMA is primarily concerned with fisheries beyond          nection with the state.
                   three miles and basically does not decrease or                 The FCMA may provide, through the "registra-
                   increase state management authority in the three-          tion" requirement I mentioned earlier, the other con-
                   mile area. However, the FCMA does contain provi-           nection necessary for state control of fishing outside
                   sions which could have a potential impact on state         their territory. This could be a potentially important
                   authority. One of these is the provision that states       management tool, depending on how aggressively
                   may not directly or indirectly regulate any fishing        and quickly the regional councils pursue their
                   outside of their territorial waters, unless the vessel     responsibilities. One example could have been the
                   is registered under the laws of that state. Extra-         regulation of groundfish in the fishery conservation
                   territorial control by the states is not a new idea.       zone on the east coast. After United States with-
                   Back in 1948, the Supreme Court in the Shifiotes case      dTawal from ICNAF, there was no management
                   upheld the right of Florida to regulate a fishery          authority over domestic fishermen outside of three
                   beyond three miles if the fisherman was a citizen          miles. The fear was that, without regulation, our
                   of the state, if the state had a legitimate interest       fishermen would hit the groundfish stocks hard and
                   in the fishery, and there was no conflict with a           cause further depletion. This in fact happened to a
                   federal law. Numerous cases since then have upheld         limited extent in the ping-pong haddock fishery.
                   the right of the states to regulate their citizens'        NOAA used the emergency powers in the act to regu-
                   fishing on the high seas. Last year the Supreme            late U.S. fishing of groundfish and eventually the

                                                                            53

                   Regional Council developed a permanent manage-               state laws are incorporated as much as possible into
                   ment plan for these stocks; if no plan had been              regional council plans. The FCMA gives the councils
                   formulated, the emergency regulations could only             discretion to incorporate state regulations into
                   have been used for two 45-day periods. After that,           their management plans. This could be important to
                   there would have been no regulatory authority over           a state like California which has traditionally
                   domestic fishermen. In addition to this possible             managed the shrimp fishery beyond her waters. Now
                   situation, there could also be cases where legal             that the councils have sole management authority
                   challenges delay implementation of a plan. It is             over those areas, California has an interest in seeing
                   in this gray area that a state, or states acting together    their regulations incorporated into the regional
                   through an interstate agreement could impose                 council shrimp management plan. The North Pacific
                   management controls on all vessels registered in             Council has recently voted to incorporate the Alaskan
                   the state, even when the vessels were outside state          Limited Entry Program into its plan for the troll
                   waters. Again, the use of this mechanism depends             salmon fishery outside of three miles, and the
                   on how the councils go about their work A problem            recently Promulgated Pacific Council troll salmon
                   in this area is how to define registration. The FCMA         plan emphasizes the need for close coordination and
                   is silent on this and most states do not have a              unity of purpose between the council plan and the
                   direct registration law for fishing vessels. One alterna-    coastal states of Washington, Oregon, and California.
                   tive is to use the federal enrollment and licensing               In order to achieve this coordination and unity
                   statute and the declaration under that statute of a          of purpose, states should be able to react responsive-
                   home port. A second alternative would be the enact-          ly. However, a major problem faced in many state
                   ment of state registration laws similar to a recent          agencies is that their management capabilities are
                   Rhode Island statute that requires all fishing vessels       severely constrained by the lack of adequate author-
                   operating from Rhode Island or in Rhode Island               ity.
                   waters, to be registered with the state. This may                In some states, all rules and regulations con-
                   give the states more latitude in extraterritorial control    cerning fisheries - for example, season dates, size
                   than would use of the federal statute.                       limits - are specified in statutes and require legisla-
                        A second area of possible impact for the states         tive action for change. This is a very slow and often
                   is the federal preemption provision (mentioned by            frustrating process, especially in those states where
                   Brian Rothschild). The FCMA does provide for pre-            the legislature meets only for a short time each year
                   emption of state authority if three conditions exist:        or only every other year. This type of fisheries man-
                   first, there must be a council management plan for           agement arrangement is extremely inflexible and
                   the fishery in question; second, the fishing for that        unresponsive, especially when compared to states
                   species must occur predominantly in the fishery              like North Carolina or Rhode Island, where virtually,
                   conservation zone; and third, state action or inaction       all regulatory authority is in the administrative
                   must substantially and adversely affect the manage-          agency.
                   ment plan. As mentioned yesterday, NOAA would use                The Rhode Island legislation created a Marine
                   both domestic and foreign landing statistics to              Fisheries Council, which has the authority to set
                   determine where the predominant fishing was. The             regulations concerning harvesting techniques, size,
                   legislative history of this provision, combined with         season, catch, and area limits, without going to the
                   the fact that there are not many species that will           legislature. In North Carolina, the Marine Fisheries
                   meet the "predominantly" definition, indicates that          Commission exercises authority over "any and every
                   preemption will not occur very often, if at all. But         aspect of cultivation, taking, possessing, transport-
                   even if it only occurs in one case, its going to             ing, processing, selling, utilizing, and disposing,of
                   raise a serious controversy. Therefore, it is in the         fish taken in coastal fishing waters, whatever the
                   states' interest to have the administrative and man-         purpose of the taking." This is the type of institu-
                   agement flexibility td coordinate their management           tional flexibility that all state fishery agencies should
                   efforts with the regional c  'ouncils. This is important     have. in addition to the extremes of flexibility and
                   not only to avoid preemption but also to ensure that         inflexibility, some states have various types of mixed

                                                                             54

                  authority; for example, in some states the manage-        utilize the consistency provision, grows out of the
                  ment authority over a single stock is split between       ARCO controversy in the state of Washington over the
                  the administrative agency and the legislature for         state's tanker safety law. This statute, among other
                  different purposes, such as regulation of commercial      things, prohibits tankers of over 150,000 DWT from
                  fishing as opposed to regulation of sport fishing.        navigating Puget Sound. The law was challenged by
                  One state, California, has enacted a progressive law      the Atlantic Richfield Company on the theory that
                  giving the State Fisheries Agency the power to make       the Federal Port and Waterways Safety Act had pre-
                  all state fishery laws and regulations conform to         empted state action in this area.
                  any plans promulgated by a Regional Council. Al-               The novel argument made in the case by the
                  though it has still.not been clarified how this par-      state of Washington was that the tanker law was
                  ticular statute relates to the existing fishery manage-   part of their approved coastal zone management
                  ment framework in California, it is the type of           program and, therefore, all federal actions under the
                  legislation necessary to ensure the fullest coopera-      Port and Waterways Safety Act would have to be con-
                  tion between state governments and regional coun-         sistent with the Washington tanker law. The case is
                  cils.                                                     pending before the United States Supreme Court and,
                      Just as the FCMA has potential importance for         regardless of the outcome on the federal preemption
                  state fisheries management, another federal law, the      issue or on the consistency issue, the possibility
                  Coastal Zone Management Act, also presents oppOT-         of forcing compliance of federal agency activities
                  tunities for the states in the area of fisheries man-     with state laws and policies through the federal con-
                  agement. One of these possibilities is the use of the     sistency provision remains viable.
                  federal consistency provision of the act to urge con-          The recently promulgated Pacific Council troll
                  formance of regional council management plans with        salmon management plan illustrates how a council
                  the state fishery conservation and development            plan could affect a coastal program that has incor-
                  scheme.                                                   porated fishery regulations and policy. If the short-
                      Federal consistency is one of the incentives          ened troll season of the plan is adopted immediately,
                  provided in the Coastal Zone Management Act for           it would shift fishing effort to state waters with
                  state participation in the program. Basically, the        more liberal seasons, causing a greater impact on
                  act requires all federal activities, conducted or         salmon stocks and fishermen in those areas. The
                  supported by a federal agency, which directly affect      plan could also have a serious impact on existing
                  a state's coastal zone to be consistent with the ap-      commercial buying, processing, and marketing
                  proved coastal zone management program of the             industries and their facilities.
                  state. This applies to all federal agencies including          I'm not suggesting that the states use the con-
                  the regional councils. Under the regulations promul-      sistency provision to hamstring council operations,
                  gated by NOAA to implement the FCMA, council              but only as a constructive vehicle for incorporating
                  plans must be coordinated and consistent with state       state interests into regional council plans. Again,
                  coastal zone programs. This is true even though the       because of state representation on the councils,
                  council plan will apply to the area beyond the three-     and a similarity in state and council goals, this
                  mile seaward boundary of a state coastal zone.            incorporation may occur anyway. Additionally, in
                      The implication here is that if a. state incor-       order to use the consistency provision, state coastal
                  porates its fishery management regulations or a fish-     programs must be developed with an opportunity for
                  ing facilities expansion plan into its coastal zone       full participation by federal agencies. The success
                  program, then the regional council management plan        of the consistency argument will be directly related
                  will have to be consistent. In this way, the states       to how specifically and explicitly the state coastal
                  could ensure maximum coordination between                 plan incorporates the state fishery policies, plans,
                  council plans and. state interests.                       and regulations. This will require the state CZM
                      Traditionally, states have not incorporated           people to work closely with the state fisheries agency.
                  specific fishery elements into their coastal programs.         The second possibility for using the Coastal
                  However, the possibility of doing this, in order to       Zone Management Act in the area of fisheries man-

                                                                         55

                  agement is the 1976 Interstate Coordination Amend-         money for up to 90 percent of the cost of coordinat-
                  ment to the Act. One of the primary problems of            ing, studying, planning, and implementing interstate
                  fisheries management in the United States is the           programs. It also gives a blanket congressional con-
                  fragmented jurisdictional framework among the              sent for any future interstate agreement in this
                  various state governments. States have widely              area. I would think that fisheries management co-
                  divergent and conflicting laws and regulations for         ordination would be a proper subject for Section 309
                  the same stocks of fish. For example, in New England,      funding, and that may be enough of an incentive to
                  there are three different minimum sizes for lobsters.      eliminate some of the political barriers that now
                  The same situation exists for striped bass on the          discourage regional fisheries management, leading to
                  east coast and in the menhaden and shrimp fisheries        more institutional flexibility in the state programs.
                  on the Gulf. This often leads to confusion and in-              The Office of Coastal Zone Management and the
                  effective fisheries management. Conflicting regula-        National Marine Fisheries Service have already begun
                  tions assume importance when you consider that 70          some preliminary thinking on injecting fisheries
                  percent of the domestic harvest is composed of             management into the state coastal plans, and on
                  stocks that migrate between jurisdictions.                 using the interstate coordination provisions of the
                       Its interesting to note here that the original        Act. Use of this provision could be facilitated by
                  Senate version of the FCMA provided for the secretary      making some changes in the state fisheries manage-
                  of commerce to encourage cooperative action by the         ment structure, since most fisheries agencies do not
                  states, and the enactment of improved and uniform          have the discretion to enter into reciprocal agree-
                  state laws for fisheries management.                       ments with other states. North Carolina is one of
                       Although mechanisms exist to resolve these con-       the few states that grants its fishery agency the power
                  flicts and to coordinate fisheries management among        to enter into conservation agreements with other
                  the states, past efforts at coordination have generally    states. Some states, such as South Carolina and Texas,
                  failed due to either the lack of funding, or because       provide no authority to their fishery agency to enter
                  the states have been unwilling to cooperate for poli-      into any type of interstate agreement, while others,
                  tical reasons. Among the methods that could be used        like Florida, grant the agency power to enter into
                  for regional fisheries management are uniform state        limited agreements for access to the fishery, but not
                  laws, reciprocal agreements between states, and the        for management in general. The more flexibility the
                  present marine fisheries commissions. Of all of these,     agency has in this regard, the easier it will be to
                  the use of the marine fisheries commissions has the        utilize the Interstate Funding Provision of the Coastal
                  greatest potential for coordinating state management       Zone Management Act and to implement effective
                  efforts, while relying on the information generated        interstate fisheries agreements.
                  through the . state-federal Fisheries Management                At the beginning of this paper, I briefly described
                  Program. Both the Gulf States Fishery Commission           the existing jurisdictional framework for fisheries
                  and the Atlantic States Marine Fisheries Compact           management in the United States. I'd like to go back
                  contain provisions which allow two or more states to       to this issue and discuss the recent United States
                  designate the commission as a joint regulatory             Supreme Court decision in Douglas v. Sea Coast
                  authority for a specific fishery. However, only the        Products and its implications for state management
                  Atlantic Compact has utilized this provision, and          authority. The case involved a challenge to a Virginia
                  only in one case - mesh size and season dates              statute which prohibited nonresidents from fishing
                  for the northern shrimp fishery.                           menhaden in the Virginia portion of the Chesapeake
                       The recently added Section 309 of the Coastal         Bay and prohibited noncitizens from obtaining com-
                  Zone Management Act may provide an incentive for           mercial fishing licenses for any kind of fishing in
                  the states to use mechanisms like the marine fish-         Virginia waters. The statute in question was designed
                  eries commissions for regional fisheries manage-           to operate against fishing companies who, although
                  ment. This section encourages the states to unify and      incorporated in the United States, were wholly owned
                  coordinate state coastal zone policies and programs.       by foreign nationals. Sea Coast was a New York
                  The encouragement is provided through federal              corporation owned by Hanson Trust, Ltd.; an English

                                                                            56

                   corporation, and was denied a license to fish by the      would involve the statutes of twelve other states. In
                   state of Virginia. The federal district court opinion     a companion case, Massachusetts v. Wescott, the court,
                   concluded that the citizenship requirement of the         following the same reasoning, struck down the con-
                   Virginia statute had been preempted by the federal        viction of a Rhode Island fisherman for violating
                   enrollment and licensing laws for fishing vessels.        a Massachusetts statute prohibiting nonresidents
                   These particular federal laws were first enacted in       from dragging for fish in state waters during certain
                   1792 to confer American nationality on a vessel and       times of the year.
                   to license it to engage in various activities. Further-       Another potential problem for state fisheries
                   more, the District Court opinion seemed to imply          management, which unfortunately we don@t have
                   that the states had been completely preempted by the      time to discuss, is the area of Indian treaty rights.
                   federal government in the area of fisheries manage-       I'm sure all of you are familiar with Judge Boldt's
                   ment - a situation that would be directly contrary        decision that gave certain Pacific Northwest tribes
                   to numerous court cases, the Submerged Lands Act,         the right to 50 percent of all the harvestable salmon.
                   and the FCMA.                                             This decision has created a lot of controversy and it's
                        The Supreme Court affirmed the District Court        still unclear what the final outcome will be.
                   opinion, relying on the famous case of Gibbons v.             The second part of the Boldt decision, due      - in
                   Ogden, which involved Robert Fulton and the use of        1978, will deal with an even more controversial
                   the first steamboats. This case found that the intent     issue, the right of the Indians to influence decisions
                   of the federal enrollment statute was to give vessels     that affect fish habitats, such as antipollution laws,
                   the authority to carry on the activity for which they     zoning regulations, building permits, and dragging
                   were licensed. Applying this to Sea Coast. the            practices. In Louisiana, the Choctaw Indians aye
                   Supreme Court held that the Virginia statute, by          suing the state on the grounds that state fishery
                   prohibiting federally licensed fishing vessels owned      regulations do not apply to Indians at all. I think
                   by nonresidents and noncitizens from fishing in           you can see what types of problems these cases can
                   Virginia waters, violated the federal enrollment          create for state fisheries and coastal management.
                   statute and was therefore illegal. In an interesting          One truth about all these cases and statutes was
                   interpretation the court also held that the Submerged     expressed by Jay Cronin, head of the Rhode Island
                   Lands Act, which granted control of fisheries to the      Fish and Wildlife Division. He said that he's been
                   states, did not repeal the earlier enrollment statute     in this business for twenty-six years and one thing
                   and its requirement of equal treatment for federal        it's never been is boring.
                   licenses. Most importantly, however, the court held
                   that the states were not completely preempted in the
                   area of fisheries management. States may impose
                   reasonable,      nondiscriminatory        conservation
                   measures for vessels fishing in their waters. Sea
                   Coast prevents any discrimination or unequal treat-
                   ment of nonresidents or noncitizens by the states in
                   regard to fishing. This principle has been upheld
                   before on the basis of the constitutional protections
                   found in the Equal Protection clause, the Privileges
                   and Immunities clause, and the Commerce clause.
                        However, the Supreme Court, to avoid unneces-
                   sary resolutions of constitutional issues, decided
                   this case on statutory grounds. By not using consti-
                   tutional grounds, the court decision would invalidate
                   any state law that favors residents and excludes
                   nonresidents in a particular fishery, and as pointed
                   out in the argument to the Supreme Court, this

                                                                            57

                   Legal and Jurisdictional Changes for Oil and Gas
                   in the Coastal Belt

                   John L Seymour
                   Assistant Professor, Marine Resources Management, Department of Management,
                   Texas A & M University

                        The conceptualization and development of                   While the international law of the sea relating
                   ocean law relating to exploration and exploitation         to the minerals beneath the ocean, at least those
                   of mineral resources, particularly oil and gas, have       within the coastal belt, has been agreed to with
                   historically provided and will continue to provide         relative ease, the same cannot be said for the develop-
                   that which is suggested by the title of this conference    ment of this law from the perspective of state-
                   - pron-dse, conflict, and conflict resolution. The         federal relations within our own country. The most
                   event that perhaps signaled the beginning of our           significant legal cases (often referred to as the
                   present interests in ocean law was the Truman              Tidelands cases), in terms of allocating the natural
                   Proclamation of 1945, which declared the sovereign         resources within the coastal belt, have been those
                   right of the United States to exploit the natural          associated with state-federal disputes over oil and
                   resources of our adjacent continental shelf. The           gas. The jurisdictional and ownership conflicts
                   impetus for this claim was the recognition that these      between the coastal states and the federal govern-
                   submerged lands "promised" to surrender vast               ment have been a continuing struggle, one which
                   amounts of oil and gas. The development of tech-           will continue as ocean law changes.
                   nology and the need for new sources of hydrocarbons             For purposes of this paper, the term "ocean law"
                   had led us to pursue new ventures in the ocean.            refers to that combination of law of the sea and
                   It was clear that there was a vacuum in international      federal and state law and jurisdiction that interface.
                   law regarding this potential wealth and "conflict"         What are the changes in ocean law that we currently
                   was likely.                                                see taking place; how do these changes relate to                    7
                       Following the Truman Proclamation, customary           previous trends that we have seen in the law to
                   international law on the exploitation of mineral           accommodate the various parties; and what can we
                   resources of continental shelves developed with sur-       determine from an examination of these changes and
                   prising speed and with little dispute as to its            trends to help us resolve potential conflicts over
                   direction. The 1958 Geneva Convention on the               minerals in the coastal belt? These will be the topics
                   Continental Shelf codified this recent addition to the     of discussion for the next few minutes. While the
                   law of the sea. While this was being accomplished          central focus will be the state-federal relationship,
                   with comparative ease and relatively little dispute,       it will also be useful to review certain international
                   these efforts awakened much of the subsequent              law changes and trends as well as state-state impli-
                   debate. To be sure, there are still disagreements          cations.
                   on some of the particulars of the law of the sea
                   concerning the exploitation of minerals from the           Increasing State Participation
                   continental shelf; however, this is not one of the
                   central areas of dispute in the present Third                   In recent years, there has been a significant
                   United Nations Conference on the Law of the Sea.           trend to increase the participation of the several

                                                                           58

                        states in federal activities and programs in the ocean                          nental shelf production; and (5) a state where a
                        and on the continental shelf beyond state boundaries.                           significant risk of serious damage from outer conti-
                        Legislation like the Deepwater Port Act of 1974,                                nental shelf disasters exists. I "Development' is
                        which, through the adjacent state provisions, gives                             defined to include "operation of all on-shore facili-
                        states significant input into federal decisions, has                            ties" as well as geophysical activity, drilling, and
                        altered the state-federal relationship considerably.                            platform construction.           2
                        The Fishery Conservation and Management Act of                                         In the proposed act, there are six different
                        1976 and its provisions for coordinating state,                                 national policy statements for the outer continental
                        regional, and federal fisheries management efforts                              shelf. Numbers (4) and (5) should be of particular
                        through the establishment of the regional fisheries                             interest to the states. The Congress declares that:
                        management councils has further demonstrated the                                           (4) since exploration development and production of the
                        trend toward a greater partnership between the states                                      mineral resources of the Outer Continental Shelf will have
                        and the federal government. Some legislation, such as                                      significant impacts on coastal and non-coastal areas of the
                        the Coastal Zone Management Act of 1972 with its                                           coastal states, and on other affected states, and in recognition
                                                                                                                   of the national interest in the effective management of the
                        famous but perhaps elusive conceptof "consistency,"                                        marine coastal and human environments -
                        has yet to be Proven. However, it at least demonstrates                                        (A) such states may require assistance in protecting their
                        a congressional intent to further the cooperative                                              coastal zones and other affected areas from any temporary
                                                                                                                       or permanent adverse affects of such impacts; and
                        efforts of the federal government and the states.                                              (B) such states are entitled to an opporrunityto participate,
                        A bill that is at present pending before Congress                                              to the extent consistent with the national interest in the
                        would dramatically increase state input into the                                               policy and planning decisions made by the federal govem-
                        decision-making processes surrounding the explora-                                             ment relating to exploration for, and development and
                                                                                                                       production of, mineral resources of the Outer Continental
                        tion and exploitation of minerals from the outer                                               Shelf;
                        continental shelf.                                                                         (5) the rights and responsibilities of all states to preserve and
                              On January 10, 1977, Senators Jackson and                                            protect their marine human and coastal environments through
                                                                                                                   such means as regulation of land, air, and water uses, of safety,
                        Metcalf introduced Senate Bill S.9 (the companion                                          and of related development and activity should be considered
                        bill in the House was H.R. 1614 introduced by                                              and recognized.  3
                        Representative Murphy). The bill, which is cited as                             These and other policy statements they accompany
                        the Outer Continental Shelf Lands Act Amendments
                        Of 1977, was referred to the Committee on Interior                              could provide the basis for some substantive judicial
                                                                                                                   of OCS development decisions.
                        and Insular Affairs. If passed, this bill will greatly                          review
                        modify OCS development procedures. Of particular                                       The section entitled "Administration of Leasing
                                                                                                        of the Outer Continental Shelf' calls for the secretary
                        interest are the amount of information that would
                                                                                                        to prescribe regulations for:
                        be made available to state and local governments
                        before OCS development takes place and the oppor-                                          (2) the cancellation of any lease or permit at any time, when it
                        tunity for state and local government input into                                           is determined, after hearings, that continued activity pursuant
                        decisions on how, when, and where OCS development                                          to such lease or permit would cause serious harm or damage
                                                                                                                   which would not decrease over a reasonable period of time,
                        will take place. The following is a brief discussion                                       to life (including aquatic life), to property, to any mineral
                        of those provisions that involve state and local                                           deposits (in areas leased or not yet leased), to the national
                                                                                                                   security or defense, or to the marine, coastal, or human
                        governments.                                                                               environment   4
                              Two of the terms defined in the act are "affected
                        state" and "development." "Affected state" is defined                           The section goes on,"          to state that the lessee, in the
                        as: (1) a state whose laws are effective for that                               event of cancellatiorii, shall be compensated. This
                        portion of the outer continental shelf; (2) a state                             provision might provide a mechanism for states such
                        which is connected by transportation facilities to                              as California to stop production in areas which they
                        the outer continental shelf; (3) a state which receives                         consider environmentally undesirable.
                        oil for processing from the outer continental shelf;                                   The leasing and bidding sections of the amend-
                        (4) a state which has a substantial probability of                              ments direct the secretary, when soliciting nomina-
                        environmental or social impact from outer conti-                                tions for the leasing of lands within three miles of

                                                                                                    59

                        the seaward boundary of any coastal state, to provide                              management program to assure consistency to the
                                                                                                                                                  7
                        the governor of that state with the following infor-                               maximum extent possible.
                        mation:                                                                                   One of the most significant provisions would
                                    (A) an identification and schedule of these areas and regions          allow the governors of affected states to form regional
                                    offered for leasing;                                                   outer continental shelf advisory boards whose
                                    (B) all information concerning the geographical, geological,           membership they would determine after consulta-
                                    and ecological characteristics of such regions;                        tions with the secretaries of Commerce and Interior.
                                    (C) an estimate of the oil and gas reserves in the areas
                                    prepared for leasing; and                                              Where a regional advisory board or the governor of
                                    (D) an identification of any field, geological      structure, or      any "affected state" makes recommendations as to
                                    trap located within three miles of the seaward boundary of a           the size, timing, or location of a proposed lease sale
                                    coastal state.5                                                        or a proposed development and production plan,
                        If the nominations contain any lands which the                                     the secretary is bound to accept then. "unless he
                        secretary concludes may contain a field, geological                                determines they are not consistent with national
                        structure, or trap located within both federal- and                                security or overriding national interest."9 This places
                        state-owned lands, he shall offer the governor the                                 the onus of justification on the Interior Department
                        opportunity to lease these areas jointly.                                          when states object to its plans.
                               The secretary would be directed to prepare a                                   , The amendments provide that once a lease is
                        five-year leasing program. The program is to include                               obtained, the lessee is required to subn-dt a develop-
                        as precisely as possible the size, timing, and location                            ment and production plan to the secretary for
                        of leasing activity which he detern-dnes will meet                                 approval. 10 The plan would have to describe all facili-
                        the nation's energy needs for the next five years.                                 ties and operations (other than those on the OCS)
                        Among the principles to be used in the preparation                                 proposed by the lessee which would be constructed
                        of the plan are the following:                                                     or utilized in the development or production of oil
                                    (2) timing and location of exploration, development, and               and gas.      .The plan would necessarily include the
                                    production of oil and gas among the oil and gas-bearing                location of the facilities and operations as well as
                                    geophysical regions of the Outer Continental Shelf shall be            their land, labor, material, and energy requirements.
                                    based on a consideration of -                                                 This proposed legislation also contains an
                                       (F) laws, goals, and policies of affected states which have
                                       been specifically identified by the Governor of such states         information program. It provides that lessees must
                                       as relative matters for the Secretary's consideration;              provide the secretary with access to all. of the data
                                       (G) policies and plans promulgated by coastal states                obtained and interpretations of data relating to
                                       pursuant to the Coastal Zone Management Act of 1972                 exploration or development activities. The secretary
                                       which have been specifically identified by the Governor
                                       of such states as relative matters for the Secretaries'             must then supply the states with a summary of the
                                       decision;                                                           data designed to assist them in planning for onshore
                                       (H) recommendations and advice given by any Regional
                                       OCS'Advisory Board established pursuant to this Act.           6    impacts of offshore oil and gas production. The
                                                                                                           estimates in the summary include:
                        This section also directs the secretary to invite                                             (A) the oil and gas reserves in the area leased or to be leased;
                        suggestions, during the preparation of the program,                                           (B) the size and timing of development if found or both;
                        from the governor of any state which may be an                                                (C) the location of pipelines; and                           1 11
                        "affected state." Upon completion of the program, the                                         (D) the general location and nature of onshore facilities.
                        secretary must submit it to the governors of the                                   In addition, a designee of the governor may inspect
                        affected states for review and comment, and then deal                              the confidential records after the lease sales have
                        with these comments in writing. These provisions                                   taken place. This information should be an excellent
                        allow the states to have more input than th                       ey have          asset to,states in their administration of the coastal
                        had in the past in deciding what will be leased and                                energy impact program.
                        the timing of the leases. This section also calls for                                     Title III of the proposed act concerns the Off-
                        the secretary to establish procedures for review by                                shore Oil Spill Pollution Fund. This has already been
                        state and local governments which may be affected                                  addressed by Professor Lutz.
                        and for coordination with the state coastal zone                                          There is no question that these amendments to

                                                                                                      60

                   the Outer Continental Shelf Lands Act would consti-       twelve-mile territorial sea be universally adopted the
                   tute the greatest changes in the administration           U.S. would, in fact, take advantage of the provision
                   of that act since its inception, greatly increasing       and adopt the greater distance. The federal govern-
                   the role of the states in the adn-dnistration of the      ment would have to take positive action for any of
                   OCS. While there appears to be considerable oppo-         the changes in law of the sea to become operative
                   sition to the proposed legislation, the provisions        for this country. Such changes as the twelve-mile
                   to increase the states' role do not appear to be          territorial sea would not automatically take place
                   extraordinary, since most of the states' roles have       merely because the principle is accepted as inter-
                   already been implemented in other contexts in             national law. Adoption could conceivably take the
                   previously passed legislation.                            form of a presidential proclamation or a congres-
                                                                             sionally enacted statute. While the sovereign rights
                   Implications from Changes in International Law            to the continental shelf unilaterally claimed by the
                                                                             United States were adopted through presidential
                        Changes in ocean law are currently taking            proclamation and later confirmed in the Outer
                   place at the international, federal, and state levels.    Continental Shelf Lands Act, the more recent
                   The changes in ocean law at the international level       adoption of our two- hundred- mile exclusive fisheries
                   may be discerned from a review of the Revised Single      management and conservation zone was adopted
                   Negotiating Text.  12 While there is much dispute         initially by congressional statute.. It appears likely
                   overall, many of the topics (with potential for change)   that any change in the width of the territorial sea
                   under discussion there seem to have such wide             would be accomplished through congressional
                   acceptance that they will surely result in customary      action. This, of course, means that there would be
                   international law regardless of the success or failure    considerable opportunity to determine what the
                   of UNCLOS III in bringing forth a new comprehensive       new state-federal relationship would include. It is
                   treaty. The principal changes with regard to the          essential that congressional action on issues such
                   legal regimes surrounding minerals that become            as the extension of the territorial width be taken
                   apparent from a review of the Revised Single              with a view to the legal relationships that will
                   Negotiating Text are the concept of a twelve-mile         necessarily change. There will be a need to amend
                   territorial sea, an exclusive economic zone, a regime     several existing laws and not simply to adopt an
                   for the deep seabeds, a clearer and geographically        extended territorial sea.
                   expanded definition of the outer edge of the conti-            Should the territorial sea of the United States
                   nental shelf, proposed archipelagic waters, and           be changed from three to twelve miles, what will
                   additional rules for determining baselines. While         this mean in terms of the state-federal relationships
                   all of these topics have possible implications for        that have been developed over the past three decades
                   changes in state-federal relationships, I will concen-    through court decisions and legislative actions?
                   trate on the issue of a twelve-mile territorial sea.      Ownership and jurisdiction questions come to mind
                       It should be pointed out that the United States       immediately. Where would these coastal boundaries
                   government can reject or adopt for itself the changes     be, and will the coastal states have jurisdiction
                   in international law. Only after the United States        in the three- to twelve-mile belt of newly created
                   government has adopted changes in the law of the          territory subject to United States sovereignty?. Will
                   sea is it necessary to consider state-federal             the coastal states or the federal government "own"
                   relationships. For instance, should the twelve-mile       the submerged lands and resources of the superjacent
                   territorial sea suggestion be adopted by UNCLOS III       waters?
                   and should the United States sign and ratify such a            Initially, it should be recognized that the legal
                   convention, the United States government would be         character of these lands will change from that of
                   in a position to adopt a new width of twelve miles        sovereign rights to explore and exploit the natural
                   as its territorial sea. On the other hand, the federal    resources associated with the regime of the con-
                   government might wish to maintain the present three-      tinental shelf to lands subject to sovereignty
                   mile territorial sea. It is presumed that should a        associated with the regime of the territorial sea. The

                                                                          61

                    water column and its resources will change from high                          as California, which came into the union after
                    seas with concurrent contiguous zone sovereign                                its formation have described in their state consti-
                    rights to waters having sovereign character normally                          tutions their seaward boundaries as extending three
                    associated with the territorial sea.                                          miles from shore, and these boundaries were ratified
                           When the United States was formed as a                                 by Congress in the enabling acts that adn-dtted the
                    sovereign nation, the concept of a territorial sea had                        states into the union.        16 Some of the original thirteen
                    not crystallized as a principle of international law.'                    3   states had formulated statutes declaring their
                    As a result, neither the individual states' nor the                           boundaries to be coextensive with the breadth of the
                    federal government's boundaries extended beyond                               territorial sea.     17 These had never been ratified by
                    the low water mark along our coast. The origins of                            Congress but were among the boundaries the courts
                    the United States territorial sea can be traced to                            had presumed to be legitimate for jurisdictional
                    correspondence in 1793 between the then Secretary                             purposes. The states exercised jurisdiction, at least
                    of State Thomas Jefferson and the ambassadors of                              for police power functions, within these declared
                    Great Britain and France concerning this nation's                             boundaries.18 With the passage of the Submerged
                    neutrality in the war between the other two powers.                           Lands Act in 1953, Congress specifically authorized
                           These letters discussed authorizations by the                          any states which had not established boundaries of
                    president of officers to exercise "territorial protec-                        three miles seaward of shore to do so. It should be
                    tion" a certain distance from our seashores. Mr. Jef-                         recalled that this act was for the primary purpose of
                    ferson's letter to Mr. G. Hammond 'on November 8,                             quitclaiming title of submerged land to the coastal
                    1793, stated that a provisional distance of three                             states, and it was not specifically to establish state
                    geographical miles or one marine league from the                              boundaries. The act' s purposes were stated in its title:
                    seashore was being instructed for purposes of "terri-
                    torial protection."      14 No formal presidential proclama-                             To confirm and establish the titles of the states to lands
                    tion or congressional statute ever specifically                                          beneath navigable waters within state boundaries and to the
                                                                                                             natural resources within such lands and waters, to provide
                    pronounced that the United States was adopting a                                         for the use and control of said lands and resources, and to
                    territorial sea with a width of three miles. There                                       confirm the jurisdiction and control of the united States
                                                                                                             over the natural resources of the seabed of the Continental
                    have been, however, numerous allusions in congres-                                       Shelf seaward of state boundaries.  19
                    sional statutes to the authority that may be exer-
                    cised by the United States in a territorial zone of                                  The fact that many of the states established their
                    three mdles. As early as 1794, Congress provided (in                          own boundaries and these were acquiesced in by con-
                    a statute dealing primarily with United States citizens                       gressional action and recognized by the courts
                    being required to abstain from assisting foreign                              suggests that there are no limitations on states to
                    powers in their military efforts) "that the district                          extend their seaward boundaries to a distance of
                    courts shall take cognizance of complaints by whom-                           twelve n-dies' should this distance be adopted by the
                    ever instituted, in cases of captures made within the                         United States as the extent of its territorial sea.
                    waters of the United States, or within a marine league                        It had been customary practice for the states to exer-
                    of the coasts or shores thereof." Is it is a fact that the                    cise their jurisdiction for police power functions
                    United States has for quite some time claimed and                             within such boundaries, and there seem to be no
                    exercised sovereignty over this territorial sea. While                        constitutional limitations on the separate states
                    the seaward claims of the United States and other                             which prohibit them from exercising their sovereignty
                    nations were being acquiesced in and developing into                          by extending their own boundaries. However,
                    customary international law, it is difficult to deter-                        Congress is vested with the constitutional power
                    mine a precise moment when the territorial sea                                to dispose of public property under Article IV, Sec. 3,
                    was established as three miles. Much of the dis-                              Cl. 2, which states:
                    cussion on this area was couched in terms of the
                    marginal sea and not in terms of the territorial sea.                                    The Congress shall have Power to dispose of and make all
                          The seaward boundaries of the separate states                                      needful Rules and Regulations respecting the Territory or other
                    have also had what might be described as a less than                                     Property belonging to the United States; and nothing in this
                                                                                                             Constitution shall be construed as to Prejudice any Claims of
                    clear definition of their location. Some states, such                                    the United States, or of any particular State.

                                                                                              62

                 This speaks to Congress's power to determine owner-         sea, and there was no suggestion that this had been
                 ship of such lands, but does not seem to be control-        improper. The question of establishing the outer
                 ling on the issue of boundary. placement within the         extent of state boundaries was addressed as dictum
                 territorial sea. The states are limited in extending        in Manchester v. Massachusetts, 139 U.S. 240 (1891).
                 boundaries beyond those which have been estab-              There the Supreme Court clearly stated, "Within what
                 lished as the outer boundaries of the U.S., as this         are generally recognized as the territorial limits of
                 would presume upon the federal. government's                states by the law of nations, a state can define its
                 authority in the area of international relations.           boundaries on the sea and the boundaries of its
                      A question might be raised as to whether or not        counties."23  It could be suggested that the large and
                 the Submerged Lands Act would be interpreted by             continuous body of case decisions on states'
                 the courts as a limitation on the states' ability to        boundaries extending beyond low-water mark and
                 extend their own boundaries to the outer extent of          the states' legitimate exercise of their police power
                 a newly established territorial sea. While the act          in this offshore territory was what prompted the Court
                 provides a. definition for boundaries, it should be         to base its decision in the California case on the
                 pointed out that this was for the purposes of the           novel development of paramount rights. Historically,
                 act. In that act the following definition is found:         the seaward boundaries of the states' sovereignty
                          The term "boundaries" includes the seaward boundaries of ahave been considered to be coextensive with the
                          State or its boundaries in the Gulf of Mexico or any of the seaward boundaries of the sovereignty of the United
                          Great Lakes as they existed at the time such state became aStates, and it has been difficult to perceive a time
                          member of the Union, or as heretofore approved by the when this would not be the case. To resolve the
                          Congress, or as extended or confirmed pursuant to section
                          1312 of this title but in no event shall the term "boundaries" questions previously mentioned that might arise
                          or the term "lands beneath navigable waters" be interpreted as a state-federal dispute, any extension of the United
                          as extending from the coast line more than three geographical States territorial sea should be accompanied by a
                          miles into the Atlantic Ocean or the Pacific Ocean, or more
                                                                . 20         congressional act which clarifies the issues.
                          than three marine leagues into the Gulf of Mexico.
                                                                                  The question of ownership of the land between.
                 Thus it may be possible to limit a state's boundary         three and twelve miles, in the event of an extension
                 for ownership of submerged land to three miles, while       -of the territorial seas, appears to be a more clearly
                 boundary for sovereignty purposes might be placed at        settled issue, although some legal argument might
                 twelve miles. The Supreme Court has never rendered          ensue. As a result of the California, Texas, and
                 a decision on the states' rights to unilaterally declare    Louisiana cases,  24 the Supreme Court has stated that
                 their boundaries to,be coextensive with the outer           the federal government has paramount rights to the
                 boundaries of the territorial sea where state               marginal sea. These paramount rights would pre-
                 boundaries do not extend that far. However, some            surnably preclude the states from claiming ownership
                 clue to a possible decision on this point may be            of the submerged lands beneath a new breadth
                 found in the 1947 California case   .21 While the court     of territorial sea. If a state made a claim to the
                 clearly stated that, as a result of the paramount           ownership of these submerged lands, the principle of
                 rights of the federal government in the territorial sea,    stare decisis would come into play in that future
                 California was not the owner of the submerged lands         decisions of the courts would rely heavily upon these
                 within the territorial sea, it separated this decision      prior Supreme Court cases. While the principle of
                 from a decision on the existence of state boundaries.       stare decisis was enunciated in the Maine case      25  as
                 The court said, "Conceding that the state has been          one of the principal reasons for finding that the
                 authorized to exercise local police power functions         Atlantic Coast states did not have ownership of the
                 in the part of the marginal belt within its declared        submerged lands beyond three miles, it is possible
                 boundaries, these do not detract from the Federal           that the Supreme Court could reevaluate the positions
                 Governments paramount rights in and power over              of the states and the federal government. Certainly
                 this area. ,22 From this and other references in this       there has been much legal criticism of the California
                 case it seems clear that the court believed that the        case, and perhaps the Court could adopt one of the
                 states had established boundaries in the territorial        alternative positions that have been suggested. For

                                                                          63

                  instance, the Court could take the position that             and not ownership in the pr  Ioperty sense. 27 The Court
                  Justice Frankfurter adopted in his dissent on the            looked beyond the clear meaning of the word "owner-
                                   26
                  California case,    that the principle of sovereignty        ship." The rationale that the Court gave was that fish
                  includes both dominion (property and ownership)              could not be owned (in the property sense) by the
                  and imperium (political sovereignty), and conse-             state as long as they were wild things and had not
                  quently the federal government's paramount rights            been reduced to possession. The Court stated that
                  should be considered in the nature of the imperium           Congress could only have meant the term "owner-
                  with the dominion being reserved to the states. In           ship" to describe the interests that a state has in
                  the CaliforAia case, the Supreme Court did not use           controlling, managing, and regulating the fish while
                                                                                                                          28
                  terms normally associated with property, such as             they are within that state's jurisdiction.
                  ownership or fee simple, but rather based its decision            If the United States were to adopt a twelve-mile
                  on the paramount rights it felt the United States            territorial sea, the boundaries of the states were deter-
                  possessed. A strong argument for stare decisis to be         mined to extend to twelve miles, and the ownership
                  used is that a great many expectations (particularly         of the submerged lands were determined to belong
                  economic) have developed over the past twenty-five           to the federal government, then the area would be
                  years. It could be pointed out that significant ex-          federal lands within a state. Since only sovereign
                  pectations had developed prior to the California case        rights to these lands are being claimed at present
                  that did not appear to carry much weight in that             through the Outer Continental Shelf Lands Act,
                  decision.                                                    there is a serious question as to whether this act
                       The  argument that the Submerged Lands Act              would continue to be the operative legislation for
                  should be read as a congressional pronouncement              the new territorial sea area. If not, would some
                  that the states should have ownership of the sub-            other existing federal act be effective? The Federal
                  merged lands within the territorial sea should it be         Mineral Lands ACt29 is   the present legislation which
                  enlarged is a tenuous argument. However, it should           controls mineral leasing and production on federal
                  not be discounted out of hand. Even though the               lands within the boundaries of the several states.
                  act says specifically that the states have ownership         This would mean a considerable redistribution of
                  out to a maximum distance of three miles, it is clear        the revenues from the mineral production on these
                  from the legislative history that Congress intended          federal lands. All of the revenues from the pro-
                  to return to the states that which they and almost           duction of oil and gas and other minerals under
                  all legal observers at the time thought they originally      the Outer Continental Shelf Lands Act are placed
                  owned - those lands which were within the marginal           in the federal treasury. Under the Federal Mineral
                  sea. Clearly, what they thought they owned had to be         Leasing Act, the state in which the federal lands
                  measured in terms of what the marginal sea had been          are located receives fifty percent of the generated
                  considered to be to that time. On the other hand,            revenues.
                  perhaps Congress intended that the states' bounda-
                  ries and ownership of the submerged lands within             State-State Relationships
                  the territorial sea should always be recognized.
                       Before the question of legislative intent could              While jurisdictions for change in state-state
                  be looked to, the clear meaning rule would have to           relationships will not occur with great frequency
                  be overcome. The act clearly states that the distance        from changes in ocean law, these state-state issues
                  of state ownership is three miles. Terminology that          may be significant when they -result from federal
                  is on its face quite specific and clear has in the           legislation. The 1976 Amendments to the Coastal
                  past been held by the Supreme Court to have a                Zone Management Act established a Coastal Energy
                  different meaning. In Douglas v. Seacoast Products,          Impact Program.   30 This program, established under
                  97 S.Ct. 1740 (1977), a recent case interpreting             Section 308 of the act, is designed to provide federal
                  language in the Submerged Lands Act, the Court               financial assistance to coastal states on which there
                  interpreted "ownership" of natural resources (speci-         may be impacts from development and production
                  fically fish) in the water column to mean jurisdiction       of minerals (particularly oil and gas) from the outer

                                                                            64

                                        Id

                        continental shelf. This is a further example of the                            Pacific Coast states, the majority of Atlantic Coast
                        increasing recognition of the interrelationships                               and Gulf Coast states are disputing their lateral
                        between state and federal interests in events and                              seaward boundaries; perhaps the most significant
                        programs beyond state jurisdiction but in proximity                            differences are between Louisiana and Mississippi.
                        to the states. While the program has several contro-                           The states which have these disputes may be con-
                        versial elements, the one I feel has the most sig-                             cerned that decisions that are made regarding these
                        nificance in terms of ocean law affecting state-                               extensions of lateral seaward boundaries may
                        state relations is the establishment of lateral                                prejudice or determine their claims to lateral seaward
                        seaward boundaries of the coastal states.                                      boundaries in the future even though these delimi-
                               The financial assistance available to the states                        tations are only for purposes of this act.
                        includes loans, loan guarantees, and formula grants.                                  Not only do state-state disputes on these ex-
                        The formula grants are to be based on a series of                              tended seaward boundaries exist, but at present there
                        factors, including the amount of acreage leased                                exists a dispute regarding the four lateral boundaries
                        and the amount of oil and gas production from                                  between the United States and Canada. In making
                        those areas of the outer continental shelf adjacent                            decisions on extended lateral seaward boundaries,
                        to a state. For purposes of the act, acreage is                                the associate administrator should bear in mind that
                        adjacent to a particular state if such acreage on the                          the methods, mechanisms, and procedures he uses
                        outer continental shelf lies on that state's side of                           may be carefully watched by Canada for future
                        its extended lateral seaward boundaries. The act                               reference in U.S.-Canada negotiations over lateral
                        provides that the extended lateral seaward bounda-                             boundaries on the continental shelf. These decisions
                        ries should be determined as follows:                                          of the associate administrator are only domestic
                                   (i) If lateral seaward boundaries have been clearly defined or      matters for the limited purposes of the act. However,
                                   fixed by an interstate compact, agreement, or judicial decision     Canada may still insist on referring to them should
                                   (if entered into, agreed to, or issued before the date of the       the associate administrator's decisions on methods
                                   enactment of this paragraph), such boundaries shall be              or procedures support their claims.
                                   extended on the basis of the principles of delimitation used              Most of the issues regarding extended lateral
                                   to so define or fix them in such compact agreement, or
                                   decision.                                                           seaward boundaries may have to be resolved by the
                                   (ii) If no lateral seaward boundaries, or any portion thereof,      courts. In the meantime, the associate administrator
                                   have been clearly defined or fixed by an interstate compact,        may or may not use the same principles of law
                                   agreement, or judicial decision, lateral seaward boundaries
                                   shall be determined according to the applicable principles          that the courts ultimately would use in deciding
                                   of law, including the principles of the Convention on the           these boundaries. For purposes of the act, the lateral
                                   Territorial Sea and Contiguous Zone, and extended on the            seaward boundaries which had been fixed by inter-
                                   basis of such principles.                                           state compact, agreement, or judicial decision prior
                                   (iii) If after the date of enactment of this paragraph, two or
                                   more coastal states enter into or amend an interstate compact       to an act would have such boundaries extended on
                                   or agreement in order to clearly define or fix lateral seaward      the basis of the principles of delimitation used to
                                   boundaries, such boundaries shall thereafter be deter-              define them in such compact, agreement, or decision.
                                   mined on the basis of the principles of delimitation used
                                   to define or fix them in such compact or agreement.    31                 There are some instances where states have
                                                                                                       agreed to a lateral seaward boundary, but Congress
                              If there is a dispute between states as a result                         has not specifically consented to the agreement.
                        of conflicting claims regarding their lateral seaward                          Article 1, Section 10, of the Constitution states,
                        boundaries, the portion of a state's grant which is                            "No State shall, without the consent of Congress
                        dependent on acreage and production in the disputed                            ... enter into any agreement or compact with another
                        area will be impounded until the delimitation line is                          State, or with a foreign power." A number of states,
                        established. If the states have not agreed on their                            such as Rhode Island and New York, have agreements
                        lateral seaward boundaries, then the associate                                 which have been explicitly approved by Congress,
                        administrator will make a delineation of these                                 and there should be no question on these boundaries.
                        boundaries for purposes of this act only. While there                          However, as Justice Field stated in Virginia v. Ten-
                        appear to be no lateral boundary disputes between                              nessee, 148 U.S. 508, "Compacts and agreements

                                                                                                  65

                 might then very properly apply to such as regarded        and relative position of the parties and the objects
                 what might be deemed mere private rights of               which they had in view (Louisiana v. Mississippi, 202
                 sovereignty, such as questions of boundaries."        32  U.S. 923). In addition, where there are conflicting
                 Justice Field's opinion that certain agreements           titles, the elder shall be preferred (Rhode Island v.
                 between states would not need the consent of              Maine, 12 Pet. 658). Also, between the states of the
                 Congress because they would not concern the United        Union, long acquiescence in the assertion of a
                 States has led some state courts to uphold agree-         particular boundary and the exercise of don-dnion
                 ments with other states which did not have the            and sovereignty over the territory within it should
                 consent of Congress. The states of New Jersey and         be accepted as conclusive.
                 Delaware provide an example of two states with an              Article 12 of the Convention on the Territorial
                 agreement that was never explicitly approved by           Sea and the Contiguous Zone, which is specified as
                 Congress. However, it may be possible for states in       an applicable principle in the act, states that:
                 this position to demonstrate a tacit approval by                  Where the'courts of two states are opposite or adjacent to
                 Congress. In the Virginia v. Tennessee case it was                each other neither of the two states is entitled, failing
                 held that the consent of Congress was to be implied               agreement between them to the contrary, to extend its
                 from congressional recognition of the two states for              territorial sea beyond the medium line every poin't of which is
                 judicial and revenue purposes. Where a state stood                equidistant from the nearest points on the borderline from
                                                                                   which the breadth -of the territorial sea of each of the two
                 as a party to such an agreement which does not                    states is measured. The provision of this paragraph shall
                 have the approval of Congress and now wishes to                   not apply, however, where it is necessary by reason of
                 make a claim different from that provided in the                  historic title or other special circumstances to delimit the
                                                                                   territorial seas of the two states in a way which is at
                 agreement, it is unclear whether the associate                    variance with this provision. 33
                 administrator would or would not extend the lateral
                 seaward boundaries according to that agreement.           In drafting this provision, the International Law
                      For purposes of the act, the lateral seaward         Commission decided that the most equitable way was
                 boundaries of the states which have failed to reach       to draw the bounds by application of the principle
                 an agreement about these boundaries are to have           of equidistance from the nearest point on the base-
                 them decided on the basis of applicable principles        line from which the breadth of the territorial sea of
                 of law, including the Convention on the Territorial       each country is measured. The Supreme Court elected
                 Sea and Contiguous Zones. One question which              to use the equidistant principle in Texas v. Louisiana,
                 should be raised is whether or not the lateral            96 S-Ct. 2155 (1976), where the lateral seaward
                 seaward boundaries that may be established within         boundary dispute between those states was settled.
                 the territorial sea would have to be extended in a        The court also pointed out that the jetties of both
                 straight line beyond the territorial sea. Whether         states should be considered as part of the baselines.
                 concepts that have been developed for delineation         The CEIP guidelines direct the associate admini-
                 of lateral boundaries on the continental shelf should     strator, when necessary to delimit boundary lines,
                 be used as well appears to be unclear.                    to use the baseline that the U.S. measures its terri-
                      In determining a boundary line between states,       torial sea as shown on National Ocean Survey charts
                 the nature and history of the controversy with            when the equidistant method is chosen.@'
                 respect to the colonial grants or orders relied on as          The simplest way to determine the boundaries
                 establishing the bounds must be considered (Vermont       would be to extend the land boundary out to sea.
                 v. New Hampshire, 53 S. St. 708). All types of land       This method works quite well for areas where the
                 claims and land grants as well as admission to the        coastline Is relatively straight and where the land
                 Union documents could be considered in solving            boundary between the two states reaches the shore
                 this type of boundary. In the construction of             at right angles. There are a few places in this country
                 statutes, as in the construction of deeds; the            where those conditions are met; however, if they are
                 cardinal rule is to effectuate, if possible, the entire   not present, the resulting division could be very
                 intention of the grantor; and, in ascertaining that       inequitable. Another method is to use a line perpen-
                 intention, regard must be given to the situation          dicular to the general direction of the coast This

                                                                        66

                            method was used in the 1909 arbitration award in the                                          lengths of the coastlines.40 This still leaves questions
                            dispute between Sweden and Norway.                              35                            as to the amount of concavity, the specific geological
                                    In looking at the principles that have been                                           conditions, and which part of a nation's coastline
                            developed in international law relating to the delimi-                                        should be used in determining the relative lengths.
                            tation of lateral seaward boundaries of the conti-                                                    Which of the applicable rules of law will be
                            nental shelf, attention should be focused initially                                           given the greatest amount of weight by the associate
                            on the Convention on the Continental Shelf. The                                               administrator in delineating the extended lateral
                            Convention provides:                                                                          seaward boundaries will not be clear for some time.
                                         Where the same continental shelf is adjacent to the                              Since the associate administrator's decisions will be
                                         territories of two       adjacent states, the boundary of the                    substantive and therefore discretionary, any decision
                                         continental shelf shall be determined by agreement between                       he makes will not be subject to review by the courts
                                         diem. In the absence of agreement, and unless another
                                         boundary line is justified by special circumstances, the                         unless it is clearly arbitrary or capricious.
                                         boundary shall be determined by application of the principle                             In summary, there are numerous changes in
                                         of equidistance from the nearest points of the baselines                         ocean law that have far-reaching effects. The trend
                                         from which the breadth of the territorial sea of each state
                                         is measured.   36                                                                to increase state participation in federal programs
                                                                                                                          beyond state boundaries is likely to continue. Where
                          The central question seems to be whether or not to                                              implications for changes in state-federal relation-
                          use the equidistance principle or to recognize the                                              ships result from changes in law of the sea, it will
                          equity issues which might be raised as a result of                                              be necessary for Congress to give consideration to
                          special circumstances. A prior draft of this con-                                               possible effects on boundaries, jurisdiction, and
                          vention article by the International Law Comn-dssion                                            ownership as separate but interrelated issues.
                          had stated that "Such boundaries should be fixed by                                             Finally, while state-state relationship questions will
                          agreement among the states concerned. It is not                                                 not arise as often as state-federal issues, these issues,
                          feasible to lay down any general rule which states                                              such as lateral seaward boundaries, should be given
                          should follow; and it is not unlikely that difficulties                                         more careful attention when federal legislation is
                          may arise."3' It was also suggested in that earlier                                             passed.
                          draft that, failing agreement, "States should be
                          under an obligation to submit to arbitration ex aequo
                          et bono."38 A reading of the legislative history of the                                         Notes
                          convention suggests that the inclusion of the general                                           I . S. 9, 95th Cong., lst Sess. Sec. 201 ("Sec.2(f)) (1977).
                          principle of equidistance left much room for the                                                2.  Id., Sec. 201 ("Sec. 2 (1)).
                          consideration of equity resulting from special cir-                                             3.  Id., Sec. 202 ("Sec. 3).
                          cumstances.                                                                                     4.  Id.,  Sec.  204 ("Se   .c. S(a) (2)).
                                  The International Court of Justice, in the North
                                                                            39                                            S.  Id.,  Sec.  205   (b) ("Sec. 8(@ (1)).
                          Sea Continental Shelf case,                            stressed the equity                      6.  Id., Sec. 208 ("Sec.       18(a) (2)).
                          principle, even though it based its decision on the
                          principle that states should be entitled to the natural                                         7.  Id., Sec. 208 ("Sec.       18(c)).
                          prolongation on the continental shelf of their land                                             B.  Id.,  Sec.  208 ("Sec.     19(a)).
                          territory. The I.C.J. stated that the whole concept                                             9.  Id., Sec.   208 ("Sec.     19(d)).
                          of a state's rights to the continental shelf are a                                              10. Id.,  Sec.  208 ("Sec.     25(a) (1)),
                          direct result of its sovereignty over the land and                                              11. Id.,  sec.  208 ("Sec.     26(b) (2)).
                          that the continental shelf is merely an extension of                                            12. Revised     Single Negotiating Text, A/Conf. 62/WP.8/Rev.1,
                          this land domain. The I.C.J. did identify three                                                         May 6, 1976.
                          criteria which should be taken into account in                                                  13. The Supreme Court has stated that "At the time this country
                          determining this natural prolongation. These criteria                                                   won its independence from England there was no settled
                                                                                                                                  international custom or understanding among nations that
                          which seem to be equitable criteria, include: (1) the                                                   each nation owned a three-mile water belt along its
                          relative concavity of the coastline; (2) the geology                                                    borders." United States v. California. 332 U.S. 19 (1947), p. 32.
                          and geomorphology of the area; and (3) the relative                                             14. If. Ex. Doc. No. 324, 42nd Cong., 2nd Sess. (1872) 553-554.

                                                                                                                    67

                     15. 3rd Cong., I st Sess., Ch. 50 (17 94), 38 1.
                     16. Cal. Const. 1849, Art. XII, Sec. I; Enabling Act, 9 Stat 452.
                     17. Massachusetts had established such a boundary in 1859
                            (see Stat 1859, c. 289, as amended, Mass. Gen. Laws Ann.
                            c.1, Sec. 3). Other states followed the same process.
                            (R.I., Gen. Stat 1872, c. 1, Sec. 1), (N.J. Stat Ann. Title 40,
                            Sec. 18-5), (N.H. Laws 190 1, c. I IS), (Acts 1916, p. 29, Ga.
                            Code Ann. Sec. 15-101).
                     18. Manchester v. Massachusetts, 139 U.S. 240 (1891); The Abby
                            Dodge, 223 U.S. 166 (1912); Skiriotes v. State of Florida 313
                            U.S. 69 (1941).
                     19. Submerged Lands Act, 67 Stat. 29 (1953).
                     20.  Submerged Lands Act, 67 Stat. 29 (1953), 43 U.S.C. 1301 (b).
                     21.  United States v. California 332 U.S. 19 (1947).
                     22.  Id., p. 36.
                     23.  Manchester v. Massachusetts, 139 U.S. 240 (1891), 11 S.Ct 559
                            at 564.

                     24.  United States v. California 332 U.S. 19 (1947); United States
                            v. Texas, 339 U.S. 707 (1950); and United States v. Louisiana
                            339 U.S. 699 (1950).
                     25.  United States v. Maine, 403 U.S. 949 (1975).
                     26.  United States v. California 332 U.S. 19 (1947), pp. 41-46.
                     27.  Douglas v. Seacoast Products, 97 S.Ct 1740 (1977), p. 1753.
                     28.  Id.

                     29.  Federal Mineral Leasing Act, 30 U.S.C. 191.
                     30.  Coastal Zone Management Act Amendments, Sec. 308, Pub.L.
                            94-370, 94th Cong., 2nd Sess.
                     31.  Id., Sec. 308 (b) (3) (B).
                     32.  Virginia v. Tennessee, 148 U.S., 508, p. 511.
                     33.  Convention on the Territorial Sea and Contiguous Zone, Art
                            12(l), Ap. 29, 1958, U.N. Doc. A/Conf. 13/L. 52.
                     34.  42 Fed. Reg. 1184 (1977).
                     35.  119511 I.L.C. Yearbook (1)287, Para. 122.
                     36.  Convention on the Continental Shelf, Art.6(2), Ap. 29, 1958,
                            U.N. Doc. A/Conf. 13/L.55.
                     37.  [1951] I.L.C. Yearbook (11) 143.

                     38.  Id.
                     39.  North Sea Continental Shelf Case (1969) I.C.J. 3.
                     40.  Id., p. 5 1.

                                                                                           68

                   Jurisdictional Issues in Marine Transportation

                   Joseph Bockrath

                   Assistant Professor of Law, Law Center,. Louisiana State University

                         The jurisdictional issues involved in marine                  The Commerce Clause of the United States Con-
                   transportation are clouded by two factors: the                 stitution, from which the great majority of federal
                   inherent difficulty of state-federal relations law in an       regulatory law comes, was not intended to foreclose
                   historically federal area now in conflict with the             state participation in the regulation of interstate
                   police power concerns of states seeking to protect             commerce. This is evident from the rejection by the
                   fragile resources, and the fact that transportation            framers of the Constitution of an earlier proposal
                   itself also cuts across the fields of fisheries, oil           which read:
                   and gas, and pollution, each of which has distinct                      The United States and Congress assembled shall have the
                   concerns. Factual distinctions such as the location                     sole and exclusive right and power of regulating trade in
                   of the vessel within or without the territorial limits,                 the states, as well as with foreign nations, as with each other.
                   the citizenship of parties involved, and the activities        Huron made it clear that the Constitution was never
                   to be regulated all contribute to the conclusion that          intended to cut the states off from legislating on all
                   generality is of modest value.                                 subjects relating to health, life, and safety of their
                        As far back as 1917 the Supreme Court of the              citizens, since these are the major reasons for the
                   United States, in Southern Pacific v. Jensen, observed         existence of state governments, even though such
                   that it would be difficult if not impossible to define         legislation might indirectly affect the commerce of
                   with exactness just how far maritime law may be                the country. A state may not, however, impose a
                   changed, modified, or affected by state legislation.           burden which materially affects interstate commerce
                   Nearly fifty years later in Huron Portland Cement v.           in an area where uniformity of regulation is necessary
                   City of Detroit, the Supreme Court recognized the              because of the nature of the subject matter, or where
                   nght of states to impose regulations over matters of           the field has actually been preempted by a federal
                   maritime transportation which are not preempted by             law.
                   federal law. Attempting to pinpoint the basic limita-               The Federal Water Pollution Control Act is an
                   tion of local legislative power, the court said that:          example of an expressly nonpreemptive federal
                            The controlling principles have been reiterated over the years statute and at least fourteen states have adopted
                            in a host of this courts decisions. Evenhanded local regula- legislation similar to or more stringent than the
                            tion to effectuate legitimate local interests is valid unless provisions of the federal law. The Florida statute
                            preempted by federal action.                          was examined in the Askew case, where a district
                   Unfortunately, stating the terms of federal pre-               court ruled that the Florida act constituted an in-
                   emption has always been an easier task than identify-          trusion into an exclusive area of federal substantive
                   ing actual cases of it. Preemption, though Huron may           marine regulation. The Supreme Court, however,
                   be becoming dated, would seem to require a congres-            found that the liability provisions of the Florida
                   sional intent to occupy a field, plus a field the nature       statute fit into the waiver of exclusive federal control
                   of which is best suited for nationally uniform regu-           found in the FWPCA, noting specifically that the
                   lation.                                                        federal act dealt only with federal cleanup costs

                                                                               69

                    while the Florida statute dealt with state costs and              is limited to that area considered by the United States
                    damages to state and private interests. Not resolved              to be within its territory. The court, in Portland Pipe
                    in Askew were questions dealing with state require-               Line, went on to add that their attention had not been
                    ments with respect to shipboard equipment or to bans              called to any provision of a treaty, act of Congress,
                    on ship movement or traffic through Florida waters.               or decision of the Supreme Court of the United States
                    After the Askew case, in the Portland Pipe Line Cor-              limiting territorial jurisdiction of the United States
                    poration case, the Maine statute was upheld in the                to tidewaters within three miles of the coast. Unfortu-
                    face of a multifaceted attack, including one based on             nately, this issue was not raised on appeal and the
                    the proposition that the act's license fee of one-half            validity of Portland Pipe Line on this point may be
                    cent per barrel on oil transferred over water was an              open to dispute.
                    impost and therefore violated the IMPOTt-Export                        Adding to the questions of where are questions
                    Clause of the federal Constitution. This difficulty               of who; a 1970 California case concluded that when
                    was finessed by a finding that the fee was imposed                a state's action did not conflict with federal legisla-
                    on the activity of off-loading the Oil, rather than               tion, the sovereign authority of the state over the
                    on the oil itself.                                                conduct of its citizens on the high seas is analogous
                         Due in large part to the tremendous cargoes                  to the sovereign authority of the United States over
                    carried by modern oil tankers, a state may find it                its citizens in like circumstances. This year, the case
                    necessary to endeavor to regulate the scope of mari-              of State v. Bundrant while rendered perhaps less
                    time transportation even though those activities take             than definitive by the fact that fisheries were involved
                    place beyond the territorial limits of the state. Such            and by the later passage of the Fishery Conservation
                    regulation or influence upon regulation may be                    and Management Act, seems to have eliminated state
                    indirect or direct.                                               citizenship as a requirement for the extraterritorial
                         States may indirectly affect activities involving            application of state law.
                    maritime activities occurring beyond their territorial                 The law of pilotage has traditionally been a sub-
                    limits through their input into a variety of federal              ject of state regulation. Federal law provides that:
                    statutes which apply beyond three miles, For                               Until further provision is made by Congress, all pilots in the
                    example, the FWPCA is expressly not preemptive                             bays, rivers, harbors, or ports of the United States shall
                    and may, in many circumstances, require that federal                       continue to be regulated in conformity with the existing laws
                    permit-seekers also obtain state certification. The                        of the states respectively wherein such a pilot may be, or
                    Outer Continental Shelf Lands Act through its appli-                       with such laws as the states may respectively enact for the
                    cation of state law on off shore structures, the Fish                      purpose.
                    and Wildlife Coordination Act which requires con-                 It was   held as early as 1851 that this statute was
                    sultation with state agencies, the veto provisions                constitutional, since the mere granting of commerce
                    of the Deepwater Ports Act, the National Environ-                 power to Congress did not prohibit the states from
                    mental Policy Act through state input into the                    passing laws to regulate pilotage, and that since com-
                    environmental impact statement process, and the                   merce includes a variety of subjects, there maybe need
                    Coastal Zone Management Act through its con-                      for a uniform rule for some situations and a different
                    sistency requirements, all provide a measure of state             rule in different localities for others. it should be
                    input into activities occurring beyond their bound-               noted that this argument was resurrected in the
                    aries.                                                            ARCO case to which our attention will be turned in
                         A much more direct approach was taken in th6                 a moment.
                    Maine statute analyzed in the Portland Pipe Line case.                 It is significant to recognize though that the
                    This statute purported to extend Maine's jurisdic-                pilotage statute is merely a recognition of the con-
                    tional control to twelve miles and the Maine Supreme              current power of states in the area until Congress
                    Court upheld its application against the challenge                chooses to act. For example, the federal government
                    that it was inconsistent with national treaties. In a             has now preempted the licensing of the pilots serving
                    rather unsatisfactory opinion the court said that                 on vessels authorized to engage in the coastwise
                    the freedom of the state of Maine to act in this area             trade. The Rhode island statute involved in the

                                                                                   70

                   recent case of Warner v. Dunlap, requiring each               state involvement in virtually all water-related regu-
                   foreign vessel and American vessel under register for         latory programs, including the Coastal Zone Manage-
                   foreign trade to take on a Rhode Island pilot when            ment Act. Citing a variety of other acts with similar
                   traversing Block Island Sound, is consistent, since           thrust, the court observed that the federal statutes
                   Block Island Sound was held to be a bay within the            mentioned explicitly invited state participation, while
                   meaning of the federal statute. As well, Rhode Island         the Port and Waterways Safety Act did not invite
                   could regulate the piloting activities of Connecticut-        such participation or sharing of regulatory authority.
                   licensed pilots traversing the waters of Block Island              ARCO is now on appeal and numerous states
                   Sound even though the routes utilized in piloting             have involved themselves in the litigation. Their
                   those vessels were more than three miles from the             contentions are of major interest. The states disavow
                   Rhode Island shore. it should also be noted that the          any interest or desire to compete with the Coast Guard
                   Wamer case would also seem to hold clearly that               in regulating vessel safety and design and traffic
                   the issue of the state's territorial limits is distinct       control, but stress that states have a vital interest
                   from that of its right to control navigation. Thus,           in protecting their freedom to make policy choices
                   in the pilotage situation, states have been permitted         where substantial economic, social, and environ-
                   to assert the regulations as much as thirty or even           mental policy issues arise.
                   fifty miles from their borders.                                    The states point out specifically that the tanker
                        No discussion of state jurisdiction over marine          law does not prohibit the entry of supertankers into
                   transportation could be complete without reference            all state waters and carefully limits the prohibition
                   to the case of Dixie Lee Ray v. Atlantic Richfield which      to the ecologically sensitive area of Puget Sound.
                   is now pending in the Supreme Court of the United             Stress on the uniqueness of the area is an interesting
                   States.                                                       argument since the appellant' s brief also argues that
                        The Washington statute involved in the Atlantic          every estuary. is unique. If this means that every
                   Richfield case regulates oil tankers operating in Puget       state could treat its estuaries differently, or even
                   Sound. The tanker law requires any tanker in excess           that a single state could treat different estuaries
                   of 50,000 dwt to employ a locally licensed pilot and          within it differently, the resulting Balkanization
                   absolutely prohibits supertankers, that is those              would seem to be extreme,
                   larger than 125,000 dwt. Another section of the act                The appellants in ARCO also point out that the
                   Proscribes minimum design specifications including            exclusion of larger tankers from ecologically sensitive
                   shaft horsepower, twin screws, double bottoms, and            areas is in furtherance of the intent and policy of
                   twin radars for tankers between 40,000 and 125,000            Congress in enacting the Deepwater Ports Act to
                   tons, but waives these design specifications for              encourage the construction of deepwater ports for
                   tankers accompanied by an appropriate complement              transferring oil well offshore and to keep tankers
                   of tugboats. The district court was persuaded that the        away from crowded inshore ports where the risk of
                   Federal Port and Waterways Safety Act had preempted           environmental damage is greatest.
                   the field by establishing a comprehensive federal                  The appellants also insist that the tanker law is
                   scheme for regulating the operation, traffic routes,          not one which imposes design or equipment safety
                   pilotage, and safety designs specifications of tankers.       standards on ships because the act does allow entry
                   The court said that:                                          into the port with tug escort- assistance as an alter-
                           Balkanization of regulatory authority over the most interstate, native.
                           even international, of transportation systems is foreclosed by The states appealing the district court decision
                           the national policy embodied in the Port and waterways safety urge that the tanker law is not one aimed at pro-
                           Act                                                   tecting local economic interest, nor does it impose
                   Thus, the court concluded that the tanker law had             undue burdens on interstate commerce dispropor-
                   been preempted. The court recognized that coopera-            tionate to the strong state interest in protecting
                   tive federalism had been a congressional policy for           unique marine environments. They further urge that:
                   designing a United States environmental policy and                    Every port, harbor. bay, and estuary throughout the world is
                   that this policy of cooperative federalism had ensured                unique in terms of its physical and ecological carrying

                                                                              71

                                  capacity. A state police power regulation that imposes reason-      federal scheme for regulating oil tankers and author-
                                  able limits to protect carrying capacity, even whe Ire incidental   ized the Coast Guard to require tug escorts and to
                                  burdens on commerce result is not invalid.
                                                                                                      restrict or even exclude tankers from Puget Sound
                              While the district court emphasized that the                            under adverse or hazardous conditions. The fact is,
                       Port and Waterways Safety Act, unlike most other                               however, that the Coast Guard has not yet acted to
                       water-related federal statutes, does not invite state                          regulate these aspects of oil tanker operations, but
                       participation, the appellants argue that neither is it                         the parties disagree in the result of such inaction.
                       expressly preemptive. Since the exercise of federal                                    The interesting contention that the consistency
                       supremacy is not lightly to be presumed, and because                           provisions of CZMA require that federal agencies act
                       the state interests are strong, the state argues that                          consistently with the Washington tanker law, which
                       the Port and Waterways Safety Act is not preemptive                            at least allegedly was incorporated in Washington's
                       of Washington tanker law.                                                      approved coastal zone management plan, received
                              It is interesting to note that the Port and Water-                      modest consideration from the district court. Con-
                       ways Safety Act contains only one reference to state                           ceding that the tanker law is "related" to the approved
                       standards and it says. that:                                                   coastal management plan, the court declined to rule
                                  Nothing in this Chapter supplants or modifies any treaty or         that this somehow waived federal preemption of the
                                  federal statute or authority granted thereunder, nor does it        area. Even assuming that the tanker law was a legi-
                                  prevent a state or political subdivision thereof from pro-          timate factor in Washington's approved coastal
                                  scribing for structures only higher safety equipment require-
                                  ments or safety standards than those which may be proscribed        management plan, it does seem difficult to jump
                                  pursuant to this Chapter.                                           from that to the conclusion that the area is no longer
                       ARCO's position is that since the federal statute was                          preempted      , if in fact it ever was.
                       designed for the prevention of damage to vessels,                                      The foregoing makes clear that the combination
                       bridges,   . and other stuctures, the Savings Clause for                       of legal, factual, geographical, and emotional factors
                       more stringent state standards is "for structures                              involved in the discussion of state jurisdiction over
                       only" since that is the language utilized in the clause,                       marine transportation virtually precludes a cogent
                       and that this constitutes therefore an express federal                         statement of widely applicable principles. From a
                       preemption of state regulation over vessels.                                   policy perspective on a visceral level, the arguments
                              While it may be an overstatement to say that                            for state authority are attractive, as no one can
                       this preemption is clear, the states would seem to be                          dispute the unique character of most local resources
                       equally guilty in saying that:                                                 or the relative competence of state officers to handle
                                                                                                      them.
                                  The plain meaning of this Savings Clause is to allow the                    on the other hand, we are one country and it
                                  States to impose higher or more stringent safety equipment
                                  requirements or safety standards in a relatively narrow field,      is hard to argue with the proposition that few enter-
                                  for structures only, than any existing Coast Guard regulations      prises are more int6rstate in nature than shipping.
                                  on the same subject.                                                Fears of conflicting regulations are very real.
                       The Savings Clause does not, continues the state                                       Law is a reflection of policy and the state of the
                       argument, prevent the states from exercising their                             law in this area reflects the absence of such a
                       traditional regulatory authority over vessel opera-                            national policy. Congress' failure to enact or clearly
                       tions in harbors, bays, and inland waters where the                            repudiate a national oil spill liability act is indicative.
                       Coast Guard has not yet acted to regulate.                                     Constitutional language may need breadth, but
                              The states in ARCO also argue that if Congress                          federal statutescould be explicit when it comes to
                       had intended a federal preemption and a complete                               the question of state authority. Until they are, one
                       ouster of state regulatory authority it would have                             can expect states to continue to fill what they
                       expressed intention in the same kind of unequivocal                            perceive as a vacuum in the laws protecting their
                       terms that are used in statutes such as the Clean Air                          coastal resources.
                       Amendments of 1970.
                              The District Court view- was that the Port and
                       Waterways Safety Act established a comprehensive

                                                                                                  72

                  Getting into Deep Water: Emerging Environmental
                  Regimes and Jurisdictional Conflicts of the
                  Coastal Belt

                  Robert E. Lutz

                  Visiting Associate Professor, University of the Pacific, McGeorge School of Law,
                  Sacramento, California

                       The title of this paper suggests some predictive      one goes oceanward from land, jurisdictions become
                  capability on my part. Anyone attempting predictions,      more and more undefined and dynamic. Second, as
                  however, should be cautioned by something the              one returns to shore and proceeds landward, juris-
                  famous economist Kenneth Boulding once said: If.           dictional boundaries become better defined, but
                  you predict the state of affairs for one hundred years     overlap and change frequently.
                  and are 99 percent correct for each year, you will              Jurisdiction has to do with the legal right to
                  only be 36 percent correct when the hundred years          assert authority over an area, resource, or activity.
                  has passed.' Since that is hardly a winning average,       Usually pertaining to government's authority, the
                  I will not attempt to launch a career as a sooth-          term has two different applications. One indicates
                  sayer in this forum. Rather, after defining some           the authority of a certain level of government to assert
                  terms, I will cite and discuss with current examples       control over fesources, a defined area (territory), or
                  some trends in certain areas of coastal belt environ-      activity. The second aspect has to do with the com-
                  mental regulation.                                         petence of a certain unit or units of a level of govern-
                      Some definition of terms is necessary to develop       ment to exercise authority over the resource, area, or
                  a framework for a meaningful discussion. Specific-         activity. In this second instance, jurisdiction can
                  ally, the terms "coastal belt," "jurisdiction," and        also be coordinated or concurrent among agencies or
                  "pollution control" require attention.                     divisions within agencies. For example, although
                      The term coastal belt is intentionally vague. It       the federal government through the Department of
                  refers to a geographical area, the specific boundaries     Interior may have jurisdiction over exploration and
                  of which'are undefined. It includes the area called        exploitation of the seabed beyond three miles of the
                  the coastal zone  2 and something more. With the           coast, the jurisdiction of Interior's Bureau of Land
                  various extensions of coastal nation jurisdiction          Management over leasing of outer continental shelf
                  taking place3 and the tremendous increase in ocean         tracts is coordinated with its U.S. Geological Survey
                  activities, the term coastal belt is undoubtedly           authority to issue and implement regulations regard-
                  designed to include the area of coastal nation juris-      ing exploration and exploitation activities    .4 jUris_
                  diction asserted in these extensions as well as juris-     diction becomes more complicated when agencies
                  diction over the ocean activities occurring in those       within the same level of government have concurrent
                  areas which may be of concern or interest to coastal       jurisdiction. For instance, in California both the
                  nations. Thus, two jurisdictional characteristics pre-     Energy Commission and the Coastal Commission
                  dominate and assist in clarifying the term. First, as      have jurisdiction over aspects of the siting of electric
                  Special gratitude is expressed for the assistance of the National Sea energy facilities in the coastal zone.5
                  Grant Program which sponsored the author in research on "The   Last, pollution control is a term often incorrectly
                  Implications of Changes in the Ocean Law for U.S. Coastal states." employed. to refer to the environmental management

                                                                          73

                   efforts of government. While pollution control is a            area. Although more subtle in conceptualization,
                   primary approach to environmental regulation in the            this type enables more direct control over activities
                   coastal belt, it does not constitute the sole technique        occurring beyond established jurisdictions. The
                   employed, nor is it necessarily the essential concern;         instances of both direct and de facto jurisdictional
                   it sometimes suggests an unacceptable after-the-fact,          extensions include: state extensions into federal
                   rather than preventive, approach to environmental              areas of jurisdiction; state extensions into areas or
                   problems. Thus, planning approaches, inter alia (con-          activities beyond its boundaries; and federal exten-
                   stituting a large part of the environmental regulatory         sions into areas Or activities beyond its boundaries.
                   approach of coastal belt activities    6), should be con-
                   sidered along with pollution control as part of the            State Extensions into Federal Areas of Jurisdictions
                   package of environmental management efforts.                        Energy activity in the California coastal area
                         An inventory of the emerging environmental               has raised a number of state-federal jurisdictional
                   regimes and potential jurisdictional conflicts sug-            conflicts which are examples of both direct and de
                   gests that they can be organized for analytical                facto extensions. Each arises from the specter of air
                   purposes into the following categories:                        pollution within state boundaries resulting from
                         (1) Direct and de facto jurisdictional extensions-
                                                                              "   sources beyond its territory over which the state at
                         (2) Cooperative federalism problems from the             present has . no clear legal control, and required
                             expansion and Suppression of state regula-           control over activities in an area where the federal
                             tory initiatives;                                    government generally has authority.
                         (3) Intragovernmental conflicts;
                         (4) Extent of public-private, cultural, and non-         De facto., air pollution control beyond three miles. Under
                             human rights; and                                    the Clean Air Act,7  states are delegated the authority
                         (5) New international regimes.                           to develop and enforce state implementation plans
                   Each issue area will now be discussed with examples            which are approved by the administrator of the
                   in an attempt to clarify some of the legal issues              Environmental Protection Agency. This confers
                   involved.                                                      authority upon the state to set emission standards
                                                                                  from particular stationary sources in an air quality
                   Direct and De Facto Jurisdictional Extensions                  region in order to achieve primary and secondary
                                                                                  national ambient air quality standards. Beyond the
                         Jurisdiction can be extended in at least two             three@mile state territory (the territorial sea), neither
                   ways. One is direct, accomplished by the bald claim-           the state nor the federal government has clear author-
                   ing and taking control of areas beyond established             ity over air pollution, except with respect to deep-
                   areas of jurisdiction. The second may be more subtle;          water ports and oil exploitation activity.8
                   it is a de facto extension accomplished by asserting                The argument proposed by California in the
                   control within the established jurisdictional area             current negotiations over the siting of a Sohio oil
                   when that area is serving as a conduit for activities          tanker terminal at Long Beach9 is that a state may
                   beyond that boundary. That is, by controlling the              be able to exercise regulatory authority over activities
                   passage of the activity through a specific juris-              occurring beyond its territory in order to protect air
                   diction (e.g., state authority to regulate pipelines from      quality in its territory.' 0 The limitation on this j uris-
                   O.C.S. development which travels ashore through its            dictional extension, however, is that enforcement
                   three-mile jurisdictional area) sufficient leverage may        could only be exercised within state territory, speci-
                   be possessed to exercise control with respect to               fically while vessels are in its ports; but such enforce-
                   activities occurring outside the jurisdiction. A slight        ment could be exercised with respect to conduct
                   variation is the type of de facto jurisdiction asserted        occurring outside the three-mile limit.
                   over activities beyond the protected area in order to
                   prevent harm within the jurisdictional area. This              Direct- OCS activities. A more direct approach to air
                   would be limited to activities which are generally             pollution occurring from sources beyond state terri-
                   acknowledged to cause harm within the controlled               tory has been proposed by some amendments to the

                                                                               74

                       Outer Continental Shelf Lands Act." At this time                            above in that the state does not extend its jurisdiction
                       facilities and operations on the outer continental                          into areas or over activities where there is a clear
                       shelf enjoy a sort of exemption from the Clean Air                          or potential conflict with federal jurisdiction. In two
                       Act, because under that Act there is no clear E.P.A.                        instances regarding out-of-state energy development
                       authority beyond three miles, and because the                               beneficial to California, state laws have been held
                       Department of the Interior, which regulates offshore                        administratively to have extraterritorial application.
                       facilities, has no regulations specifically pertaining                      In the first, the California Environmental Quality
                       to air emissions - no operating procedures or equip-                        Act (California's environmental impact statement
                       ment are specified to minimize air emissions. Of                            law) 19 was interpreted by the opinion of a California
                       course, operations occurring in this area can have a                        Attorney General. The opinion stated:
                       severe impact on air quality within the territorial                                    CEQA clearly requires public agencies to consider the direct
                       limits of the state. For example, Exxon's Santa Ynez                                   or ultimate impact of a project upon the environment of
                       tanker-loading operations, three and one-half miles                                    California - whether the cause of that impact originates
                                                                                                              within the boundaries of the state or outside of the state ...
                       off the California coast and approved by the Depart-                                   The other part to this question is whether these same
                       ment of the Interior,       12 could increase onshore ozone                            agencies must consider those environmental impacts of a
                       readings by 93 to 160 percent, in violation of federal                                 project which occur beyond the boundaries of the state and
                       ambient air quality standards. The proposal, there-                                    which will arguably not have any foreseeably direct or
                                                                                                              ultimate impact on the environment in California. The Cali-
                       fore, is to establish the authority of E.P.A. to enforce                               fornia Legislature, in enacting CEQA, could not have been so
                       compliance with air emission controls for the outer                                    parochial in its thinking as to encourage California agencies
                       continental shelf through the state implementation                                     to export their pollution by exempting those agencies from
                        Ian of the particular state.         13                                               responsibility for out-of-state pollution occasioned by the
                       P                                                                                      California agencies' demands. Also, the success of preserving
                                                                                                              and enhancing the environment of California is dependent
                       Direct- baseline extension. California and other states                                on other states respecting California's environment and not
                       are no strangers to the technique of extending their                                   permitting their state and local agencies to degrade the
                       territorial jurisdictions by way of redefining the base-                               quality of California's environment ... 20
                       lines from which their territorial seas are measured                 ' 14          In the second, the California Public Utilities
                       While opportunities are limited and the delimitation                        Commission (PUC) ruled that California- based utili-
                       rules are relatively well defined, efforts to do so                         ties must get PUC approval before they can'build
                       nevertheless continue.15 Moreover, lateral bound-                           plants outside the state. The PUC, in a 4-0 ruling,
                       aries between states have been subjects of dispute,                         declared that California utility rate-payers should
                       particularly when stakes are financially important,                         have some voice in how plants are built and financed,
                       as they could be under the Section 308 of the Coastal                       regardless of their location. "At a minimum, someone
                       Energy Impact Program.'          6                                          should determine whether the bill-payer needs the
                                                                                                                                                       -21
                            With the internationally proposed establishment                        goods before the time comes to pay.
                       of a twelve- mile territorial sea,      17 states may also make
                       efforts to acquire, in the additional nine miles of area,
                       interests they currently hold in the three-mile terri-                      Federal Extensions into Areas or Activities Beyond Its
                       torial sea, under the Submerged Lands Act. Although                         Boundaries
                       there is some speculation that this will be accom-                          Impact Statements. In similar fashion to the California
                       plished by litigation, the more likely approach is                          agency extensions mentioned above, the National
                       that this will occur either through administrative                          Environmental Policy Act (NEPA) 22                 has been held
                       delegation of regulatory authority over certain pollu-                      to have extraterritorial reach. Notwithstanding a
                       tion sources or by way of legislation, as was accom-                        number of judicial opinions to that effeCt,23                   Russell
                       plished in 1953 by the Submerged Lands Act. 18                              Peterson, then the chairman of the Council on
                       State Extensions into Areas or Activities Beyond Its                        Environmental Quality, in 1976 issued to the heads of
                       Boundaries                                                                  federal agencies the following memorandum regard-
                                                                                                   ing the application of NEPA's impact statement
                            These    extensions differ from those discussed                        requirement to environmental impacts abroad:

                                                                                                75

                                    [We advise that NEPA requires analysis and disclosure in            of authority previously allowed or conferred by the
                                    environmental statements of significant impacts of federal          federal government on states, and the dynamic defi-
                                    actions on the human environment - in the United States,
                                    in other countries, and in areas outsid@ the jurisdiction of        nitional development, primarily by the courts, of new
                                    any country.                                                        state-federal approaches initiated by federal legisla-
                                    We believe that by taking account of likely impacts abroad          tion.
                                    before deciding on a proposal of action, federal agencies can
                                    obtain the same benefits of NEPA review that accompany the
                                    development of projects or actions with domestic impacts.
                                    Moreover, we believe that such analyses can be accomplished         Expansion: State Control of Offshore Pollution
                                    without imposing U.S. environmental standards on other
                                    countries, and without interfering with the execution of                  For the last few years, states have valiantly
                                    foreign policy. 24                                                  resisted, with inadequate legal tools, the rapid devel-
                        Pollution zone. There has also been substantial interest                        opment of OCS lands off their coasts, development
                        in the last few years in the federal extension of the                           which may have severe environmental, social and
                        current twelve-mile pollution zone,               25 especially since           economic impacts within their territory. Most chal-
                        Canada, to protect its environment and Arctic re-                               lenges to federal government development of these
                        sources, in 1970 extended its zone to one hundred                               areas have been procedural (via such acts as the
                        mileS.26    In the United States, this idea is manifested                       National Environmental Policy Act, the Coastal Zone
                        in Senate Bills 885 and 886, which propose an exten-                            Management Act, and the OCS Lands ACt,32                       requiring
                        sion of the current marine pollution control zone to                            the federal government to consider onshore impact
                        200 miles. While this extension has been viewed as                              and other state interests in deciding whether or not to
                        unnecessary and contrary to international law,                           27     lease OCS lands. Such acts merely give states a right
                        support for it grows with the lack of success in the                            to challenge the process of federal decision-making
                        law of the sea negotiations.            28                                      and do little to provide states 'with a substantive
                                                                                                        and active role in the decision-making process, even
                        Cooperative Federalism Problems from the Expansion                              though there may be significant econon-dc, social,
                        and Suppression of.State Regulatory Initiatives                                 and political impacts resulting from such devel-
                               Basic to    our federal system are the enumerated                        opment.31                            I
                                                                                                              Arising from this concern have been efforts to
                        powers of the federal government to perform certain                             expand state involvement in the federal leasing of
                        functions and the residual authority vested in the                              offshore development rights, specifically with respect
                        states to perform those functions not specifically                              to environmental regulation. The possible roles being
                        conferred upon the federal government. In recent                                proposed for states in the legislation to amend the
                        decades, a "new federalism" has emerged from this                                                    34
                                                                                                 29     OCS Lands Act range from a veto authority to be
                        relationship. In many federal environmental laws,                               exercised only in a very limited number of situations
                        states are conferred authority to achieve broad                                 and subject to federal override for a "national
                        conservational or resource allocation goals by                                  intereSf,35 to       some degree of state participation
                        employing methods which allow them to consider                                  in a regional advisory board.
                        local needs and impacts. This is accomplished by
                        the delegation of authority to the states in areas in                           Suppression: Oil Spills
                        which the federal government has paramount author-
                        ity to legislate and implement laws.                30                                In the situation of state regulation over oil
                               Recent events, however, raise new questions of                           spills, the state flexibility made possible by a Supreme
                        the meaning of this cooperative federaliSM.31                            A      Court decision in 197 3        36 is being dramatically limited
                        number of examples demonstrate the " tug- and- pull"                            by proposed federal legislation to establish a "super-
                        that has occurred and will ensue, and will un-                                  fund  .-37  The proposed fund would compensate for
                        doubtedly be one of the major jurisdictional issues                             spills in any U.S. waters and would cover both
                        in the coastal belt for years to come. In these                                 persistent and nonpersistent oils spilled from ships
                        examples, one will recognize instances of conferring                            and barges as well as from terminals, pipelines,
                        new types of authority, the retraction or suppression                           refineries, drilling rigs, production platforms, and

                                                                                                     76

                     deepwater ports. It would replace all existing federal         laws. 43 That is, while laws such as the CZMA provide
                     funds and preempt duplicative state oil spill liability        a framework for state environmental programs such
                     and compensation laws. Among others, the proposed              initiatives can be overridden, in limited circum-
                     fund would allow for recovery of "economic dam-                stances, by the federal governments determination
                     ages" to "natural resources" and would establish               that an action may not be in the "national interest"
                     the state as a settlement agent, preempting much of            or a state program may be altered by a federal project
                     its present ability to collect under its own specific          that is determined to be in the national interest.
                     oil-spill legislation.                                         Thus, until this elusive term receives some definition,
                                                                                    it remains a card in the federal government s deck and
                     Expansion or Suppression? CZMAs "Consistency" Clause           states possess little to contend with it. It will no
                     and the Cloaked Club of "National Interest"                    doubt be more and more difficult to entice states
                          In a third example, involving "consistency"               into federal programs when the security of their
                     of federal permits and projects with state coastal             position is constantly threatened by the exercise
                     management programs,         38  states are trying to          of this very flexible and federally accommodating
                     locate the "carrot" given them for participating               provision.
                     in the federal coastal zone management process.
                     Under the federal Coastal Zone Managemen                       Cooperative Federalism: Special Treatment for Unique
                     Act of 1972 (CZMA)      '39 states were provided with          States and Regional Institutions to Solve Regional Prob-
                     planning and implementation of funds by the federal            lems
                     government, as well as the consistency clause, in                   A state's geographical, economic, or demo-
                     return for their development, under federal criteria,          graphic uniqueness or the interests of states in
                     of state coastal plans. Although this process was not          certain environmental issues of a regional nature
                     mandatory, all "coastal states" under the act have             suggest a possible new dimension to cooperative
                     participated.                                                  federalism. Exemptions or exceptions to national
                          in the first effort to define the meaning of              regulatory programs are sought44     for unique environ-
                     "consistency," Arco v. Evans,40 the state of Washing-          mental situations presented by states such as Hawaii
                     ton discovered that it was not quite as much as it             or Alaska, and new regional institutions are being
                     thought it wasAn that case, Arco sued officials of             created to attend to regional problems (e.g., energy
                     the state of Washington to enjoin the enforcement of           and water) in the eleven western stateS.45
                     a 197 5 Washington law regulating oil tankers operat-               One of the implications of these approaches
                     ing in the Puget Sound. Washington had incorporated            is that environmental issues will be dealt with on a
                     that law into its coastal program as one of its                much more local basis than previously; more than
                     enumerated tools for implementing the plan. It                 one standard will apply and each will be tailored to
                     argued, therefore, that once the program was ap-               the unique characteristics of the area involved. While
                     proved by the secretary of commerce, federal actions           certain latitude is allowed for state differences in
                     had to be "consistent" with the law.                           our federal system, the prospect of economic dis-
                          The court held that federal law (specifically             location as a consequence of broad nonuniformity,
                     the Ports and Waterways Safety Act of 197 2 (PWSA))41          however, is usually the very reason supporting
                                                                                                                   46
                     preempted the field in that it established a com-              federally imposed regimen.
                     prehensive federal scheme for regulating the opera-
                     tions, traffic routes, pilotage, and safety design             Intragovemmental Conflicts
                     specifications of tankers. The court also held that
                     since the PWSA was preemptive of Washington's                       Central to many conflicts within a certain
                     tanker law, "consistency" could not otherwise elimi-           level of government is the priority or preemptive
                     nate the conflict with the preemptive federal law.         42  effect of one agency's jurisdiction over another's.
                          Contrasted with the purported "carrot' of con-            With the rapid enlargement of the field of environ-
                     sistency is the potential club of "national interest"          mental law at both the federal and the state levels,
                     which is available under the CZMA and other federal            this is becoming a significant point of conflict.

                                                                                 77

                  This situation is illustrated well on the federal level   require substantial state agency assistance, and will
                  by the Arco case mentioned above     47 in which there    necessitate active state oversight.
                  is at least a state-perceived overlap of the authority
                  of the Department of Commerce under the CZMA and          Extent of Public-Private, Cultural, and Nonhuman
                  the Coast Guard in the Department of Transportation,      Rights
                  operating under the PWSA. Equally as illustrative is
                  the conflict between the Department of Transporta-        Public-Private Rights
                  tion, which has the authority to license the con-
                  struction of deepwater ports under the Deepwater          Public trust doctrine. While jurisdictional questions
                  Ports Act 1974 (DWPA)48 and the Federal Trade             usually involve the level of government and its
                  Commission, which has the responsibility to prevent       boundaries of assertive authority, or the competence
                  monopolistic restraints of trade   .49 These sorts of     of a particular agency within a level of a government
                  overlapping jurisdictions and conflicts of jurisdiction   to regulate a certain activity, jurisdiction might also
                  as well as uncoordinated administrative enforcement       concern the extent to which private rights may be
                  lead increasingly to uncertainty for the private          subjected to the rights of the public. This is an issue
                  sector which depends upon a certain stability of          which is directly confronted in the application by
                  regulation and implementation policies to finance         many states of the public trust doctrine. The doc-
                  many of their projects. The problem is particularly       trine, quite broadly stated, holds that some types of
                  severe in the energy development area.                    natural resources are held in trust by state govern-
                       At the state level, conflicts do occur among state   ments for the benefit of the public. Thus, even though
                  agencies and difficulties also arise in cases where       certain lands may be held for private persons, the
                                                                            public trust doctrine imposes a public servitude upon
                  agencies have concurrent or cooperative jurisdiction.     the use of those lands. 52
                  But most interesting for environmental management              Historically, the doctrine has been confined
                  concerns is the interrelationship of state and local      to navigable waters, the foreshore and park lands.
                  governments. Traditionally, of course, local govern-      The public activities promoted in such areas are
                  ment was delegated authority to deal with land-use        delineated in this quote from a late nineteenth
                  questions within its boundaries. But as land- use deci-   century case:
                  sions were recognized as including aspects of broader
                  concern beyond traditional political boundaries,                  [The people of the state are allowed to] enjoy the navigation
                  such as environmental impact, or beyond the capacity              of the waters, carry on commerce over them and have liberty
                                                                                    of fishing therein, freed from the obstruction or interference
                  Of the local decision-maker, states resumed greater               of private parties. 53
                  control over many local land-use decisions.                    The public trust can be asserted in a number
                      Thus, in many state coastal zone management           of ways: by the state against private parties; by
                  schemes, the state delegates to local authorities         private parties challenging government action involv-
                  the initial decision-making and planning functions,       ing public trust areas; defensively by a citizen who
                  but retains supervisory and some enforcement              wishes to resist a governmental action involving
                  authority. In addition, local government may be           his/her property; Or by one private party (acting as
                  obligated to function in accord with certain state-       a member of the public) against another attempting
                  established criteria. In California, local govern-        to enforce a public right to a particular public
                  ments are responsible for developing local imple-
                  mentation plans (LiPs) to carry out the policies      of  resource area.
                  the state coastal act and state coastal plan.50 The       Vested rights. A second instance of the public-private
                  California law, however, requires each city and           rights controversy arises in the frequent claim by
                  county to adopt a "comprehensive long-range general       private parties that they have rights of development
                  plan" and if the experience accumulated under this        in property they own which vest before public regu-
                  law is any guide to the future success of such prac-      latory authority is authorized. That is, any action
                  tice,51 the development and implementation of the         taken by a governmental agency which interferes with
                  LIPs will take longer than the prescribed time, will      the assertion of this private development right is

                                                                          78

                  unconstitutional without compensation, a "taking"          previously enjoyed - even though they were pro-
                  of property, an ex post facto law, or violation of due     vided gratuitously in the past - may now amount
                  process.                                                   to a due process violation.
                       Various approaches have been employed by
                  courts and legislators to determine when rights vest       Cultural Rights v. Public Regulation
                  to develop land. Some provide that a right vests                A different type of jurisdictional conflict is
                  when the last discretionary act is taken by a regu-        presented by that which pits cultural rights against
                  latory body having jurisdiction, and others determine      governmental regulation. While there is not a pre-
                  the point of vesting by specifying which types of          ponderance of situations in which this issue arises,
                  permits must have been obtained (e.g., grading             there are likely to be instances of this problem in
                  permits) before vesting takes place.
                      Whatever t  ,he determination, the consequences        the future. At present, however, the current and
                  for public regulation of private property are sub-         apparent accession of the federal government to the
                  stantial. The earlier the vesting, the more favorable      International Whaling Commission's one-year mora-
                  it is to the private owner. Thus, if the former standard   torium on subsistence hunting of the Bowhead whale
                  applies, depending on the regulatory system, the           presents such a case. The governmental action has
                                                                             been described as a "plot to exterminate . . . the
                  right is likely to vest later in the course of develop-    Inupiat of Alaska" of whose cultural, economic, and
                  ing the property than if the latter applies.               nutritional well-being the Bowhead is an integral
                  Expediting the process and delimiting the cIitizens role.  part. For the Inupiat Eskimo,
                                                                                     the whale is more than food . . . it is the center of our life
                  Efforts to enlarge or diminish private citizen partici-            and culture. We are the people of the whale. The taking and
                  pation in public decisions or their rights to represent            sharing of the whale is our Eucharist and our Passover. The
                  the public interest can also have an impact on where               whaling festival is our Easter and Christmas, the Arctic
                  the division between private and public rights is                  celebration of the mysteries of life. 56
                  drawn. Developments, both judicial and legislative,        Nonhuman Rights and Private Rights
                  to expand the standing to sue of private citizens when
                  they represent public interests have resulted in               Reverence for the species with which we share
                  bringing many more environmental issues before             the earth has long been recognized by segments
                  bodies performing judicial functions.5' More               of our population as an essential function of govern-
                  recently, purportedly in order to instill more cer-        ment. For many years, however, government's fulfill-
                  tainty into the permit process, legislators have           ment of this goal was generally limited to setting aside
                  attempted to limit the private citizen exercise of         areas for protection as public nature preserves and
                  such rights by'either narrowing the instances in           assuring that these areas were managed on the
                  which standing was available for them or by setting        multiple use and maximum sustainable yield prin-
                  .strict time limitations upon their exercise. In addi-     ciples.
                  tion, deadlines for the processing of permit appli-            Only in very recent times has the notion of
                  cations have been proposed and consolidation of            Protecting species of special significance to humans
                  agency public hearings involved in a specific              or those species threatened with extinction been an
                  project have been administratively and legislatively       important approach to wildlife preservation and
                  imposed.'5                                                 management. Under the Endangered Species Act of
                      These reforms, in many cases, are needed and           1973 57 and the Marine Mammal Protection Act of
                  long overdue; in other cases, they threaten to             1972,58 various species receive, in effect, rights
                  diminish the role of citizens in environmental             protected by administrative agencies and even
                  management. In view of the positive role generally         protectable in the courts by citizens.59 External to
                  played by citizen participation in these processes,        those protections provided by legislation, there is
                  one must therefore be careful to avoid stifling effects    also a growing support in the legal community for the
                  in the name of reform. Most important, excessive           idea that nonhumans in certain instances do have
                  curtailing of the rights of participation that citizens    rights of insufficient status to compete with private

                                                                          79

                                                                                                                               T

                   and public rights in property, and that such rights        maintained, the rights of coastal nations to assert
                   could be adequately rep-resented in legal fora by a        pollution- control jurisdiction over activities in
                   type of guardian ad litem.11                               this area will be limited.
                                                                                   Beyond the twelve-mile territorial sea of coastal
                   New International Regimes                                  nations, the law of the sea negotiations propose
                       The creation of new international regimes can          an area designated the "exclusive economic zone,"
                   raise a myriad of potential conflict situations. By        which is not to exceed two hundred miles from the
                   redrawing the boundaries of national control, various      baseline from which the territorial sea is measured
                   questions of definition and measurement are raised;        (or 188 miles from the outer boundary of the terri-
                   reason for dispute is also provided if one nation's        torial sea). While the precise juridical status of the
                   new area of control merges into any areas previously       EEZ is not clear.yet, there is consensus regarding
                   claimed by another nation or national. in a federal        some of its aspects. Generally within the EEZ, the
                   system such as ours, in which federal-state jurls-         coastal state will have sovereign rights with respect
                   diction is constantly in dispute, reassessment of the      to exploring, exploiting, conserving and managing
                   respective rights and interests of states and the          the living and nonliving resources of the seabed,
                   federal government is inevitable. International            subsoil and the superjacent water column. Along with
                   creation of new regimes also raises jurisdictional         port and flag states, coastal states will have enforce-
                   issues regarding the new rights and obligations the        ment authority over polluting activities in this area,
                                                                              but the traditional rights of commercial transpor-
                   new regimes may impose directly upon the nation            tation are maintained, and exclusive jurisdiction over
                   (and thus in the U.S. how state and federal authority      scientific research in this area is vested in the coastal
                   should be distributed), as well as how those rights        nation.
                   and obligations may be exercised by other countries             The new proposals also reject the technological
                   and the impact of that exercise on our various state       standard of the 1958 Convention on the Continental
                   and federal interests.                                     Shelf which determines the extent of coastal control
                   The Law of the Sea                                         over the resources of the continental shelf by allow-
                       In the international system today, the United          ing exploitation to a depth of 200 meters or to the
                                                                              extent of exploitability. The proposals now rest juris-
                   Nations Conference on the Law of the Sea raises            diction over "continental shelf' resources on a
                   numerous prospects for jurisdictional conflict at the      geological determination (the "natural prolongation
                   international level between the U.S. and other coun-       of the land") and, in any case, extends a coastal
                   tries and at the national level with respect to federal-   state's exclusive jurisdiction over the seabed
                   state concerns. These arise primarily from the redefi-     resources (primarily oil and gas) at least 200 miles
                   nition of coastal nation jurisdiction in the coastal       from the baseline to conform to the EEZ extension.
                   belt.                                                      If the shelf extends beyond 200 miles, the coastal
                   Discussion of changes. Among the significant juris-        state maintains jurisdiction but must share its reve-
                   dictional changes proposed by the current law of the       nues from such exploitation with the International
                   sea negotiations6' will be the international stipulation   Seabed Authority.
                   that the territorial sea is twelve nautical miles               That which is beyond national jurisdiction is
                   in breadth. This alters the situation existing at          considered an international area. Under the 1958
                   present, under the 1958 Convention on the Territorial      Convention on the High Seas,     63 this area is open to
                   S
                      62
                   ea, which leaves to each nation the obligation of          all nations for free navigation, overflight, the laying
                   setting its own territorial sea. The new breadth           of cables and pipelines, and fishing, subject to the
                   conforms to the present territorial claims of the          duty of each nation to adopt or cooperate in the
                   majority of nations, but it would expand the terri-        adoption of measures necessary for the conservation
                   torial sea of the United States from three to twelve       of the living resources of the high seas. The law of
                   miles. And, although the right of international com-       the sea negotiations introduce a new approach to the
                   meTce to innocent passage through this area is still       management of shared resources by proposing that

                                                                           80

                   the seabed and subsoil of those areas beyond national         environmental efforts, for example, is that actions
                   jurisdictions (in most instances areas beyond the             currently available under the Port and Waterways
                   EEZ) be controlled by a new international organiza-           Safety Act 68 (e.g., with respect to segregated ballasts
                   tion, the International Seabed Authority, of which            or double bottoms) are prohibited. Moreover, the
                   all parties to the new Law of the Sea Convention              "generally accepted international rules" may prohibit
                   would be members.                                             use of the U.S. Federal Water Pollution Control Act' s
                        Also within the overall scheme proposed by the           "visible sheen" test for oil pollution and limit the
                   negotiations, priority is given to developing countries       U.S. to the percentage test under the 1954 Convention
                   for the exploitation of resources in their particular         (that is, if the 1969 Amendments to the C. onvention     69
                   region and special rights of access are accorded              are not considered "generally accepted").
                   landlocked nations. Protection of environmentally                   Beyond the territorial sea, in the EEZ, only
                   sensitive ice-covered areas is provided and areas             "applicable international standards" may be en-
                   within a nation's EEZ which are subject to severe             forced. If a violation occurs, then the flag state of
                   climatic conditions creating obstructions or hazards          the vessel will have an opportunity to preempt the
                   to navigation may be protected by special laws of that        coastal state's jurisdiction. With the miserable
                   nation.                                                       record of flag state enforcement, this may be the
                                                                                 "escape hatch." Whether the exception to this pre-
                   Impacts on federal and      state government Notwith-         emption - that the flag state has repeatedly dis-
                   standing the possibility that the law of the sea nego-        regarded enforcement or the violation has caused
                   tiations may be unsuccessful, many of these pro-              severe damage to the coastline - will be adequate
                   visons may survive the negotiations with sufficient           to overcome preemption when coastal state interests
                   status to be considered international customary               are paramount is yet to be seen.
                   law;64 thus, despite a convention agreement and                     In overall evaluation, therefore, the coastal state
                   ratification, some of the negotiation's provisions            has a limited opportunity to effectively protect its
                   may have sufficient universal acceptance        65 to have    marine environment in, say, an Argo Merchant-type oil
                   international legal effect.                                   SpiI170 (which occurred beyond twelve miles), except
                        Whatever their nature - conventional or                  after the damage is done.
                   customary - the new law of the sea with respect                     Violators are held to the liability requirements
                   to environmental regulation of the coastal belt will          established by international law for any damage
                   have some impact on both federal and state govern-            attributable to them. What this means is that the
                   ments. The impacts will be felt in terms of boundary          approximately $17 million limit of the 1969 IMCO
                   and enforcement jurisdiction, imposition of new               Convention, as initially agreed on, a0plies even
                   rights and obligations, and the imposition of new             though clean-up costs and damage to natural re-
                   regulatory systems upon U.S. nationals by foreign             sources and other victims of the pollution (e.g.,
                   countries. A brief discussion of some of these follows.       beach resorts, etc.) may in fact cause damages in the
                        (1) National government. The current negotia-            hundreds of millions of dollars. Thus, such funds as
                   tions will affect U.S. environmental interests in at          provided for in legislation recently proposed in the
                   least three major areas of regulation: vessel-source          U. S. 71 could not be employed.
                   pollution control, marine scientific research, and                . Marine scientific research, so important for
                   deepsea mining.                                               the development of an adequate international data
                        The traditional coastal state authority to set           base for the oceans, is the subject of substantial
                                                                                                                                          72
                   standards for vessel safety or discharge in the terri-        negotiations at the law of the sea negotiations.
                   torial sea 66 is replaced by a specific prohibition           Under the draft, a "consent regime" is established
                   against national vessel-safety laws (if they are              whereby coastal states have jurisdiction to permit
                   different from international ones) and a general              , research activities within their EEZs and on their
                   prohibition    indicating that national laws must continental shelves. As finally adopted in the draft
                   conform to "generally accepted international proposals, consent will be given by the coastal state
                   rules."67  What this means to the United States'              in "normal circumstances," unless the research

                                                                              81

                 involves a matter of direct significance to the explora-    Authority are immune to challenge and the promulga-
                 tion or exploitation of its natural resources (living or    tion of rules and procedures of the Authority's
                 nonliving), drilling into the continental shelf, the        Assembly or Council cannot be reviewed for its
                                                                                                                      77
                 construction of artificial islands or other types of        conformity with the ICNT provisions. The impact
                 installations, or there is a falsification or inaccuracy    of these exclusions from the "mandatory" dispute-
                                                                   73
                 of information submitted to the coastal state.              settlement procedures, of course, leaves a large
                       The ICNT provisions regarding scientific marine       number of environmental management actions
                 research are disappointing in light of the tremendous       outside the purview of anyone. The prospects for
                 reliance that must be placed on the development of          abuse by the Authority or nonenforcement of the
                 such information to ensure the environmental                environmental obligations of the ICNT are, therefore,
                 integrity of the oceans. While the consent regime           enormous without sufficient safeguards.
                 proposed by the ICNT restricts the normal production             (2) State governments. State governments have
                 of research, it does establish some uniformity and          little direct involvement in international negotiations
                 some protection against requirements which may be           even when their interests are substantially affected.'6
                 unilaterally determined by coastal states.                  In the case of the LOS negotiations, various pro-
                       While the provisions of the ICNT regarding deep-      visions of the proposals, namely the expansion of the
                 sea mining are fundamentally unacceptable to a              territorial sea, the creation of the EEZ, redefinition
                 number of developed countries from a financial              of the continental shelf, and exploitation of deepsea
                 and institutional perspective, they are also, upon          minerals may have significant economic impact on
                 reflection, remarkably @leficient from an environ-          state interests as well as producing certain state-
                 mental one. In short, they provide minimal environ-         federal conflicts over environmental control. Ques-
                 mental safeguards, if any at all, for an activity in        tions such as: What interest does California have in
                 an area of the ocean about which we know very               the EEZ with respect to pollution control? What are
                 little.                                                     its interests in coastal and long distance (e.g., tuna)
                       First, the ICNT provisions regarding environ-         fishing? and What control will it have over the on-
                 mental assessment are vague;      74 they provide few,      shore siting of mineral processing plants for deepsea
                 if any, standards for their application (e.g., timing)      minerals? may be legitimately raised by California
                 and will be administered by the Authority's Technical       in an effort to analyze and protect its interests. In
                 Commission which will have a developmental-                 attempting to answer these and other questions,
                 promotive orientation.                                      states are cast into a long-range planning posture
                       Second, while national laws, which are at least       which they are generally ill-equipped to undertake.
                 as strict as international ones, may be imposed on          However, in this fast-chang-ing world, states will
                 installations and vessels flying that nation's flag,        increasingly find they cannot afford to merely
                 the Authority is primarily responsible for developing       respond to international changes, and will want to
                 regulations for the protection of the marine environ-       become a greater part of the effort to shape national
                 ment.7 5 For this purpose, the ICNT states no standards     policies in these international negotiations.  79
                 nor suggests any guidelines.                                    The prospect of these changes also suggests
                       Third, although possibly a concession to devel-       that states may want to reconsider their present
                 oped country interests regarding the security of            position under the Submerged Lands Act of 1953,
                 investment in deepsea mining ventures, there is no          which provides for the ownership of the seabed and
                 latitude for contract modification or the imposition        the resources in the three-mile territorial sea.80 This
                 of additional environmentally inspired conditions           could be attempted by either the adjustment of the
                 for a specific deepsea development venture, even            baseline,81 judicial decision, 132 or amendment of the
                 when a significant technological or scientific break-       Submerged Lands Ace     3 or other acts to provide for
                 through occurs except where such an event qualifies         some regulatory control.
                 as a "special circumstance.   ,76
                       Fourth, the dispute- settlement procedures under           While the preceding was an attempt to anticipate
                 the ICNT provide that discretionary actions of the          future environmental jurisdiction conflicts in the

                                                                          82

                             4

                    coastal belt, the jurisdictional plight of the coastal                     States and Canada, and in other areas, seaward to the
                    belt may be summarized by the following observa-                           outer limit of the United States territorial sea. The zone
                    tions. First, jurisdictions in the coastal belt are                        extends inland from the shorelines only to the extent
                                                                                               necessary to control shorelands, the uses of which have a
                    multiple, overlapping, and fragmented in some areas,                       direct and significant impact on the coastal waters." Id.
                    where, with respect to other activities and areas,                         at section 1453.
                    there are large gaps of coverage. Second, environ-                    3. E.g., the Fishery Conservation and Management Act. 16 USC
                    mental problems and, in particular, pollution do not                       1801 etseq.; the Mexican extension of its resource manage-
                                                                                               ment zone to 200 miles primarily to protect its offshore
                    respect political boundaries. Effective regulation,                        oil claims; and the North Korean imposition of a "mili-
                    therefore, will often require transboundary manage-                        tary zone" of 200 miles into which civilians and military
                    ment - an approach which has had limited success                           craft are barred without permission.
                    nationally and internationally. Third, jurisdictional                 4. See generally, the Outer Continental Shelf Lands Act, 43 PJSC
                    conflicts will increase as competition- producing                          1331 et seq.
                    activity increases in the coastal belt. There will be                 5. Cal. Pub. Res. C. �25000 et seq. Cal. Pub. Res. C. �30000 et
                    competition for the exclusive use or multiple use of                       seq. Id, at 30400. -
                                                                                          6. E.g., The National Environmental Policy Act, 42 USC 4321 et
                    ocean space; for the priority of use; and for the                          seq., and the Coastal Zone Management Act, supra note 2.
                    control of that use among levels of government (state,                7. 42 USC � 185 et seq.
                    federal, international) and between units of govern-                  8. See Deepwater Ports Act, 33 USC 1501 et seq. and the Outer
                    ment FourtIL some of the most difficult and pivotal                        Continental Shelf Lands Act supra note 4.
                    of future issues involve those identified above in                    9. Sohio, proposed to build a $500,000,000 oil terminal in Long
                    the section on cooperative federalism. Resolution of                       Beach to receive Sohio's oil from Alaska's north slope and
                    these conflicts will probably rely on the judicial and                     transport it through a pipeline to Texas, where it will be
                    administrative determination of the substance of                           refined. From that point the oil will be carried by truck
                                                                                               and train to Sohio's markets in the midwest. Sohio's pro-
                    several essential concepts: preemption, de facto con-                      posal indicates it will reverse the flow of a natural gas
                    trol, and national interest. Each has to do with defin-                    pipeline which now brings gas from Texas to California to
                    ing the scope of acceptable state initiative and                           accommodate the need for transporting oil from California
                    expansion of jurisdiction which cannot or will not be                      to Texas.
                                                                                          10. The issue has arisen because of the smog problem in the
                    overridden by the federal government.                                      Los Angeles Air Basin. The California Air Resources Board
                         Many of these conflicts will be resolved by the                       fears that the smog problem will be exacerbated because of
                    courts. Others will be resolved by legislation. Some                       the common practice among tanker captains of flushing out
                    conflicts, however, may not be the appropriate                             their oil compartments with sea water after unloading oil.
                                                                                               As the water fills the compartments it displaces large
                    subject of either process. Jurisdictions are not                           volumes of oil vapors into the air. The same thing hap-
                    normally established by caprice and, in most in-                           pens when tankers fill their oil tanks with water ballast
                    stances, they possess a constituency of interests                          after unloading. Together, the two practices are capable of
                                                                                               adding as much new air pollution to the smoggy Los
                    and political power. Thus, some jurisdictional con-                        Angeles Basin as the exhaust from 3.5 million additional
                    flicts may be healthy for our system of government                         cars.
                    and may be best served by the ordinary give-and-take                  11. Outer Continental Shelf Lands Act Amendments of 1977,
                    of negotiations based on a bargaining of interests.                        Senate Bill 9; See also testimony of Bill Press, Director of
                                                                                               the Governor's Office of Planning and Research, State of
                    Notes                                                                      California, before the Senate Energy and Natural Resources
                                                                                               Committee, April 25, 1977.
                    1. Paraphrase of an anecdote presented in M. Schwartz, "Emerg-        12. Comments to suggested amendments to the Outer Conti-
                         ing Patterns in American Law," Pac. LJ 8 (1977): 523.                 nental Shelf Lands Act Amendments of 1977, submitted by
                    2. Under the Coastal Zone Management Act, 16 USC 1451 et                   Senator Alan Cranston May 24, 1977.
                         seq, the "coastal zone" is defined as the "coastal waters        13. See also, HR 1614, Outer Continental Shelf Lands Act
                         (including the lands therein and thereunder) and the                  Amendments of 1977, �5.
                         adjacent shorelands (including the waters therein and
                         thereunder), strongly influenced by each other and in            14. E.g., the United States vs. California, 332 U.S. 804 (1947);
                         proximity to the shorelines of the several coastal states,            and United States vs. California, 381 U.S. 139 (1965); and
                         and includes transitional and intertitle areas, salt marshes,         United States vs. California, 382 U.S. 448 (1966).
                         wet land and beaches. The zone extends, in Great Lakes           15. See generally, H.G. Knight, The Law of the Sea: Cases, Docu-
                         waters, to the international boundary between the United              ments and Readings (1975), 133-281.

                                                                                      83

                     16., Coastal Zone Management Act Amendments of 1976, P.L.                   33. See e.g., P. Baldwin and M. Baldwin, Onshore Planning for
                            94-307, 90 Stat. 10 13, 16 USC � 1451 et seq.; see also, the               Offshore Oil (1975).
                            Coastal Zone Management Act Amendments Act of 1976,                  34. See S.9, Outer- Continental Shelf Lands Act Amendments of
                            tailoring coastal zone protection to expanded offshore oil                 1977.
                            production, 6 ELR 13193 (1976).
                     17. See the Informal Composite Negotiating Text ICNT, A/Conf                35. See "Offshoye Veto Asked by Brown", in Sacramento Bee, April
                                                                                                       26, 1977; see also Testimony of Bill Press, Director of the
                            62/WP. 10, 15 July 1977 (hereinafter cited as ICNT); see                   California Office of Planning and Research, before the
                            R. Lutz, "National Hegemony and International Suzerainty                   Senate Energy and Natural Resources Committee, April 25,
                            in the Oceans: the Environmental Implications of the Law                   1977.
                            of the Sea Negotiations," International Business Lawyer
                            (1977).                                                              36. Askew vs. American Waterways Operators, Inc., 411 US 325
                     18. Submerged Lands Act of 1953, 43 USC 1301 et seq.                              (1973).
                     19. Cal. Pub. Res. C. �21000 et seq.                                        37. See H.6803, Comprehensive Oil Pollution Liability and Com-
                                                                                                       pensation Act.
                     20. 58 A.G. Opin (Sept. 26, 1975), 614; 616-617.                            38. Section 307(c) of the Coastal Zone Management Act; see R.
                     21. B. Stall, "PUC Claims Right to O.K. Out-of-State Power Plant,"                Hildreth, "The Operation of the Federal Coastal Zone
                            Los Angeles Times, October 26, 1977.                                       Management Act as Amended," Nat Res. Lawyer, 10 (1977):
                                                                                                       211.
                     22. E.g., the National Environmental Policy Act. 42 USC 4321 et
                            seq. and the Coastal Zone Management Act, supra note 2.              39. 16 USC � 1451 et seq.
                     23. E.g., Sierra Club vs. U.S. Atomic Energy Commission, 4 ELR              40. Arco v. Evans, U.S. District Court, Western District of Wash-
                            20685 (D.D.C. 1974) and Environmental Defense Fund vs.                     ington, No. C75-648M (September 24, 1976).
                            United States Agency for International Development, Civil            41. 33 USC � � 1221 et seq.
                            Action No. 75-0500 (D.D.C., filed April 8, 1975). See also
                            international application of NEPA: Environmentalists Chal.           42. Arco v. Evans, supra note 40.
                            lenge Pesticide Aid Program, 5 ELR 10086 (1975).                     43. See Section 307(c)(3)(B)(iii) and 307(d). See'generally, Hil-
                     24. Congressional Record, E 5394-5395 (October 1, 1976).                          dreth, "The Operation of the Federal Coastal Zone Manage-
                     25. Convention on the Territorial Sea and the Contiguous Zone,                    ment Act as Amended," Nat Res. Lawyer, 10 (1977): 211, 219.
                            516 UNTS 205, 15 UST 1606, TIAS No. 5639 (in force                   44. For example, because Hawaii is able to deposit its sewage in
                            September 10, 1964).                                                       the ocean through a long-distance outfall, it feels that the
                     26. See the Arctic Waters Pollution Prevention Act; see also                      secondary and tertiary treatment of sewage required under
                            Bilder, the Canadian     Arctic Waters Pollution Prevention                the Federal Water Pollution Control Act Amendments of
                            Act, in Alexander, ed., The Law of the Sea: the United Nations             1972 is unnecessary. Similarly, Alaska, with its very rich
                            and Ocean Management (1971), 204; and Bilder, "The Cana-                   fisheries, feels it deserves treatment unique from other
                            dian Arctic Waters Pollution Prevention Act New Stresses                   states. Thus, under the Fishery Conservation and Manage-
                            on the Law of the Sea," Mich. L Rev. 69 (1970): 1.                         ment Act of 1976, supra note 3, Alaska has its own
                                                                                                       Regional Council to develop regional fishery management
                     27. Ninety percent of vessels traveling in U.S. territorial seas                  plans.
                            come into one of our ports, enabling the United States to            45. For example, in June 1977 senators from California and ten
                            exercise jurisdiction, design, construction, personnel and                 other western states formed a Senate Western Coalition
                            equipment of foreign ships. See R. Lutz, supra note 17.                    to promote and protect regional interests on such diverse
                     28. See Senate Bills 885 and 886, 95th Congress, First Session.                   issues as water and land development This is.a step in
                     29. C.R. Walston, Ecology L.Q, 6 (1977): 429, Id. at note 2 in which              the "growing trend of fragmentation in Congress along
                            several acts are cited and described. Among them are the                   regional . . . lines. Southerners in Congress have long
                            National Environmental Quality Improvement Act of 1970                     worked together in an informal Dixie bloc. More recently,
                            42 USC �4371-74 (1970), the Atomic Energy Act of 1954                      there has been the formation in the Senate of a north-
                            42 USC � �2011-2296 (1970); the Outer Continental Shelf                    eastern caucus and a midwestern caucus, both to protect
                            Lands Act, 43 USC � � 1331-43; the Deepwater Ports Act, 33                 regional interests." See "Western Senators Form Unit to
                            USC � 1501 -24; the Coastal Zone Management Act, 16 USC                    Protect Regional Interests," Sacramento Bee (June 10, 1977).
                            � 1451-64.                                                                 See also the Fishery Conservation and Management
                                                                                                       Act, supra note 3, which provides for Regional Councils to
                     30. The extent to which the federal government can exercise                       develop regional fishery management plans and the pro-
                            authority in these areas is determined by the commerce                     posed amendments to the Outer Continental Shelf Lands
                            clause (U.S. Constitution, Art. 1, �8), the supremacy clause               Act, supra note 11, which suggests that state participation
                            (U.S. Constitution, Art. 6, clause 2), and the Federal Navi-               in the tract-selection process be confined to participation
                            gational Servitude (which originates from the commerce                     in regional boards.
                            clause).                                                             46. See notes 39-42.
                     31. To some degree, these issues are suggested by R. Walston,               47. See supra note 40 and accompanying text
                            supra note 29.
                     32. See supra note 29.                                                      48. 33 USC � 1501 et seq.

                                                                                             84

                         49.  See 8 Coastal Zone Management Newsletter (August 3, 1977).                         ities, and secondly a sentiment that such acts are juridically
                         50.  See Cal. Pub. Res. C �30500 et seq.                                                necessary to maintain valid international relations. The first
                                                                                                                 element is mere usage, which by itself does not make law, the
                         51.  See Cal. Govt Code �65300.                                                         second is an intellectual conviction according to which
                         52.  See generally, W. Rodgers, Environmental Law (1977): 170-185.                      identical situations of fact should lead to similar reciprocal
                                                                                                                 behaviour patterns. Looked at in this waythe lawisdependent
                         53.  Illinois Central R.R. vs. Illinois, 146 US 387 (1892).                             not upon unanimity, but only upon generality of will. The
                         54.  See generally, S. McCaffrey and R. Lutz, eds. Environmental                        dissenting minority of States are as much bound by the
                                Pollution and the Rights of Private Citizens.- An International                  formulated rule as those who actively participated in its
                                Symposium (1978).                                                                creation, the source of their obligation residing in the moral
                         55. See generally, Bosselman, The Permit Explosion (1977); see also                     necessity which underlies observance of all law.
                                efforts to amend the California Environmental Quality Act             O'Connell, International Lawyer, 1 (1970): 15.
                                (CEQA) in A.B. 884. Many such efforts may legitimately                66. N.b., The territorial sea breadth established by the ICNT
                                raise concerns about due process. For an international                      (i.e., 12 miles) is the same distance from the baseline as
                                perspective on this issue see McCaffrey and Lutz, id                        the contiguous zone was under the 1958 Convention. In
                         56. See Hopson, "Alaskan Mayor Calls Bowhead Hunt Vital for                        that area coastal states were allowed to "exercise the
                                'People of the Whale,"' LosAngeles Times, NovembeT6,1977                    control necessary to prevent infringement of its ... sani-
                                See also, P. Rich and A. Wickham "With Goodwill and Good                    tary regulations within its territory or territorial sea7
                                Sense," Not Man Apart 7 (mid-October 1977): 7; and "Of                      (1958 Convention of the Territorial Sea and Contiguous
                                Eskimos and Whales," Not Man Apart 7 (October 1977): 9.                     Zone, Art. 24). This provision was interpreted to permit
                                                                                                            coastal states to establish environmentally protective
                         57. Endangered Species Act of 1973, 16 USC � 1531 etseq. See also                  regulations applicable to vessels.
                                L. Wood, " � 7 of the Endangered Species Act of 1973: a               67. ICNT, Art 21(2).
                                Significant Restriction for All Federal Activities," ELR 5
                                (1975): 50189.                                                        68. P. L. 92-340.
                         58. 16 USC � 1361 et seq.; see generally, Gaines and Schn-ddt,               69. See generally F. Grad, Treatise on Environmental Law, 13-55 to
                                "Wildlife Population Management Under the Marine                            13-74 (1977).
                                Mammal Protection Act of 1972," ELR 6 (September 1976):               70. McManus and Schneider, "Shipwrecks, Pollution and the
                                50096, and J. Nafziger and J. Armstrong, "The Porpoise-                     Law of the Sea," National Parks and Conservation Magazine,
                                Tuna Controversy: Management of Marine Resources After                      (June 1977): 15.
                                Committee for Humane Legislation, Inc. vs. Richardson,"
                                Env. Law 7 (1977): 223.                                               71. See J. Reynolds, "Oil Spill Liability and Compensation
                                                                                                            (Superfund)," in Proceedings of the 1977 Oil Spill Conference
                         59. See Comment, "Special Status of Wildlife Receives Judicial                     (Preventiort Behavior, Control Cleanup) 15 (March 8-10,
                                Approval," ELR 6 (December 1976): 10270.                                    1977).
                         60. See the seminal article by C. Stone, "Should Trees Have                  72. See, for example, A. F. Vysotsky, "Freedom of Scientific
                                Standing? Toward Legal Rights for Natural Objects," S. Cal                  Research in the World Ocean," Ga J Ind 6 and Comp. L 7
                                L Rev. 45 (1972): 450.                                                      (1976).
                         61. The Third Law of the Sea Conference is being conducted                   73. See generally ICNT, Art. 247; ICNT, Art. 247(3); ICNT, Art
                                under the auspices of the United Nations and was first                      247(4)(a); ICNT, Art. 247(4)(b); ICNT, Art 247(4)(c); ICNT, Art
                                convened in Caracas, Venezuela in 1924. Since then three                    247(4)(d).
                                attempts at a negotiating text have been issued. The first
                                was the Informal Single Negotiating Text (A/C 62/WP.                  74. ICNT, Art. 1(1), 145, and 2 10(l); ICNT, Art.,16 I(l)(b), 163(2)(iv),
                                8/Parts I-III). The second text was called the Revised                      163(2)(xii), 160.
                                Single Negotiating Text (RSNT), (A/Conf. 62/WP. 8/Rev.                75. ICNT, part XI, Section 5, and Annex 11, Para. I I (b)(5), and para.
                                I/Parts 1, 11, and 111, 6 May 1976, and the fourth part on                  I I (x) and (xii).
                                settlement of disputes, A/Conf. 62/WP. 9/Rev. 1/6 May
                                1976). The third negotiating text is the Informal Composite           76. Anne)ell   para. 13(a).
                                Negotiating Text (ICNT) (A/Conf, 62/WP. 10, 15 July 1977).            77. ICNT, Aft 163 and 191.
                         62. Convention on the Territorial Sea and the Contiguous Zone,               78. E.g., in the instance of a U.S.-Great Britain Tax Treaty, the
                                5 16 UNTS 205, 15 UST 1606, TIAS No. 5639 (in force                         State Department proceeded with negotiations of much of
                                September 10, 1964). The following discussion of the Law                    the treaty without concern for the impact on particular
                                of the Sea Conference is taken in part from R. Lutz, supra                  states. The treaty purportedly would prevent California and
                                note 17.                                                                    other states from taxing multinational corporations on what
                         63. Conventio  ,n on the High Sea, 450 UNTS 82, 13 UST 2312,                       is called a unitary basis, taking into account their world-
                                TIAS No. 5200 (in force September 30, 1962).                                wide operations as well as those in California. It is reported
                                                                                                            that the abandonment of the unitary method of taxation
                         64. See J. Laylin, "Emerging Customary Law of the Sea," Inter-                     would cost the state $125,000,000 in annual revenue (see
                                national Lawyer 10 (1976): 669.                                             Walters, "Unitary Tax Switch - Brown Hit on'Sell-Out,"
                         65. Therefore, there are two basic elements to custom, first a                     Sacramento Union [September 30, 19771). Similarly, in the
                                   generalised repetition similar acts by competent State author-           controversy over the moratorium on the Bowhead whale,

                                                                                                  85

                           Eskimos reportedly received very short notice of the action
                           of the Department of Commerce and of the international
                           Whaling Commission. See supra note 56.
                     79. E.g., see hearing by California Senate Subcommittee on Land
                           Use Planning, "New Ocean Law: Its Meaning to Western
                           States," Sacramento, California, July 14, 1977.
                     80. See text accompanying notes 17-18, supra.
                     81. The California Attorney General's office has made persistent
                           efforts to clarify and in some cases redefine the baseline
                           for California. Conversation with Russell lungerih, Deputy
                           Attorney General, State of California, Los Angeles, Call-
                           fornia.

                     82. See text accompanying note 18 supra.
                     83. See notes 11-13, supra.

                                                                                        86

                  Goals for Public Management

                  Giulio Pontecorvo

                  Graduate School of Business, Columbia University

                       The title of this brief paper is ambiguous. Are we    - an activity is best managed as a monopoly. In
                  discussing today regulation of the private economic        this case the question becomes the relative desira-
                  system in the public interest? If this is the case we      bility of public Versus private monopoly and manage-
                  must justify:                                              ment, e.g., the argument for creation of a body such
                       (1) Intervention at all. We may regard the argu-      as a port authority.
                  ment over intervention as a public cost/benefit                 Let us begin with a few fundamentals about the
                  calculus, but it also has ideological content, i.e., is    role of government in an economy which, despite
                  it better to intervene in the public interest or let       (in my opinion) many defects in the operation of
                  market forces prevail? If time permits, it may be          markets, remains essentially a market economy,
                  possible to comment on the different aspects of this       i.e., we will take as given the idea of markets with
                  issue, at least in response to questions.                  imperfections as central in the allocation process.
                       (2) The extent and kind of intervention. Does         This will allow us to avoid Daniel Bell, Irving Kristol,
                  public management of fisheries really require a, b,        and Milton Friedman, on the right, and J. K. Gal-
                  and c, or perhaps just a and b.                            braith, legitimate socialists, and certain environ-
                  Or are we discussing the creation of public manage-        mentalists on the left. I may as well be candid and
                  ment bodies to supplant the private market system?         say that in my opinion the defects in markets are
                       It is important to sort these basic questions out     structural and, therefore, require intervention,
                  since the Fishery Management and Conservation              especially those defects which involve the level of
                  Act of 1976 has, in my opinion, a basic internal           knowledge, decision-making under uncertainty, and
                  contradiction in that it confuses two objectives:          differential time horizons.
                  (1) improving the management of our fisheries; and              We will briefly discuss the three broad functions
                  (2) providing protection and support for primary pro-      usually suggested as the appropriate criteria for
                  ducers of fish.                                            evaluation of government intervention: allocation,
                       Historically the grounds for intervention have        distribution, and stabilization. Then we will make
                  been based on some defect - real or alleged - in           certain comments about the current status of fish-
                  the operation of markets and/or the institutional          eries management under the Fishery Management
                  arrangements of industry and property that require         and Conservation Act of 1976 and, finally, some com-
                  intervention. The common property legal condition of       ments on the research needs required to provide
                  fisheries resources is one such institutional condition    efficient management in the public interest.
                  that requires intervention to improve the efficiency           The preamble to the constitution states two of
                  of market operations.                                      our national goals are to     provide for the common
                       A second possibility for grounds for intervention     defense        and to "       . promote the general
                  in the marketplace is that because of certain struc-       welfare       The first, in economic parlance, is a
                  tural conditions - massive economies of scale, etc.        public good and these are largely supplied directly

                                                                           87

                  by government, i.e., public management. The second         centers on this criterion. Clearly regulation of private
                  class of goods operating under the usual assumptions       firms in the public interest is an extremely complex
                  about markets in the United States has been provided       problem, a problem not foreseen by those who
                  by the private sector of the economy constrained           thought that the public interest would be protected
                  by a competitive market system. Our national objec-        if the railroads could be tamed by the creation of
                  tive or social welfare function is Pareto Optimality,      the I.C.C.
                  which, crudely put, suggests that if by a change
                  someone is made better off while no one is injured
                  the system is optimal.                                     Distribution
                       Let us keep Pareto Optimality in mind as a goal            The distribution criteria in legal terms implies
                  while we exan-dne specific economic activity, assum-       equity. For instance, the basic justification of
                  ing we have g riounds for intervention, based upon         our progressive income tax is equity (fairness)
                  clearly identifiable correctable defects in the market     and the idea of a minimum consumption level is
                  system, i.e., our assumption of competition in the         inherent in our social security programs. But despite
                  market place is violated by a structural condition, not    the general concern with equity the public does not
                  by some common law conspiracy by producers                 have any specific income distribution pattern in mind
                  attempting to escape the rigors of competition, a          when it considers fairness. However, all or almost all
                  condition which the antitrust laws should rectify.         intervention in the private sector, from monetary
                                                                             policy to a school lunch program, affects income
                  Criteria for Intervention: Allocation                      distribution. This is a key point: one must consider
                                                                             the distribution implication of public management
                       The public demands two types of goods: (1) those      and intervention - e.g.,the quarrel between the
                  supplied by the private sector in response to public       environmentalists and the oil companies is a conflict
                  demand as expressed in the market place, i.e., as          of two goals, creation of public good with benefits
                  consumers indicate their preferences, by voting their      diffused to all versus profit maximization under the
                  dollars; (2) those goods which cannot be supplied or       market system where benefits are generalized by
                  traditionally have not been supplied by the private        price companies.
                  sector-defense, law enforcement, and conservation,
                  that euphemism for fisheries management.                   Stabilization
                       Under the allocation criteria for intervention,
                  the important questions involve how much of the                 Monetary and fiscal policy involves tax rates,
                  second type of goods should be supplied to the market,     interest rates, etc., and they are the obvious illustra-
                  since demand is not directly observable - i.e.,            tions of stabilization policies. These policies have
                  measurable. in general the criterion for supplying         important allocation and distribution effects. The
                  both types of goods is the same: the opportunity cost      current struggle between liberals and the Federal
                  Of resources allocated to the public sector should not     Reserve over our current monetary growth is a case
                  exceed the value of the goods produced to meet the         in point. If the target is raised and money made
                  public sector demand.                                      easier, presumably unemployment would be reduced
                       More simply put, the free lunch is never free         and income distribution improved - possibly at a
                  and therefore the real  cost of public goods must be       cost of a greater rate of inflation.
                  considered relative to other possible production.
                  This criterion is a useful guide, but it does not
                  answer a number of key questions, i.e., is it better       The Fishery Act of 1976
                  to have public management supply municipal water                 These interrelationships between allocation
                  or is it better to have a regulated private monopoly       distribution and stabilization can be spelled out in
                  as the water company.                                      formal theory. Given these tools, what can we say
                       The question currently so much in the public          about intervention, in the public management of
                  mind of the value of regulation and deregulation           ocean activity, specifically with reference to the

                                                                           88

                        Fishery Act of 1976? Let us begin with a relevant                            now. The history of the Alaska salmon fishery, which
                        quotation from Adam Smith.                                                   continually struggled to extend each season to make
                                   People of the same trade seldom meet together, even for           a profit, is a good illustration of these pressures.
                                   merriment and diversion, but the conversation ends in a con-      A monopolist with control of sjupply can take a larger
                                   spiracy against the public, or in some contrivance to raise       view, while the government may consider the general
                                   prices. It is impossible indeed to prevent such meetings, by
                                                                                                     welfare view. Divorced from immediate pressures,
                                   any law which either could be executed, or would be con-
                                   sistent with liberty,and justice. But though the law cannot       management in the public interest can consider
                                   hinder people of the same trade from sometimes assembling      .  many more relationships, such as the needs of future
                                   together, it ought to do nothing toIfacilitate such assemblies    generations, in arriving at decisions about what to
                                   much less render them necessary.                                  produce and when to do it.
                              The quotation indicates that competition regu-                               Therefore, we may conclude that a goal of public
                        lated by the market is the structure that will yield                         management is to maximize the welfare of the citizens
                        our optimal solution. Conspiracy against the public                          and, if possible within this framework, assist the needs
                        interest equivalent to monopoly raises prices by                             of the producers. Unfortunately, time does not permit
                        reducing the quantily of output and has important                            examination of a host of particular problems that
                        income distribution effects.                                             .   arise under the act. Let me list just three: (1) potential
                              We note that Smith is talking about a market,                          policy conflicts between regional councils; (2) poten-
                        and also that in the development of any country or                           tial policy conflicts between particular councils and
                        economic system the size of the market is important.                         the department of state, and potential conflict within
                        Assumptions about markets are that factor mobility                           each council between commercial and sports fishing
                        and price flexibility will iron out regional and sec-                        interests; (3) the adequacy of the new structure to
                        tional differences and that the general welfare has                          carry out the complex research necessary for effective
                        precedence over particular interests.                                        public interest fisheries mana           gement.
                              We note with some trepidation, therefore, that
                        the 1976 Act creates a management structure com-                             Notes
                        posed of local interests. For the moment, we may
                        ignore whether they are local producers or con-                              1. Adam Smith, Yhe Wealth of Nations, Cannan, ed., Book 1, p. 28.
                        sumers.
                              It is legitimate to be concerned about local
                        issues - e.g., local school boards, local police
                        and fire protection, etc. - but it is not so legitimate
                        when the output from local economic activity is sold
                        in a national market, e.g., fish. This is true since
                        all consumers in the national market are affected by
                        local decisions. If, furthermore, the local interests
                        represented are primarily producers, the model fits
                        the conditions so vividly described by Smith two
                        hundred years ago.
                              Decisions made to protect local producers may
                        yield lower real income for consumers by raising
                        prices for an element in the food supply. There are
                        other issues that become important if management
                        reverts to the local level. The question of the time
                        horizons of different interests is important. By and
                        large, individual producers, particularly if they are
                        small firms under financial pressure, have the short-
                        est time horizon. Their production decisions focus
                        on the short-run need to survive, to make profit right

                                                                                                 89

                 Federal Mechanisms for Management

                 Robert W. Niblock
                 Program Manager, OTA Oceans Program, U.S. Congress

                      Only yesterday did I finally learn what coastal          A minimum need at this time is a comprehensive,
                 belts are, or at least I was able to get some general     long-term planning program, which is built on strong
                 feel for what people, were talking about when they        policy foundations and is pursued on a continuing
                 mentioned the term. Today I have several general          basis. We have all seen various commissions and
                 thoughts on the topic.                                    councils related to management issues, and we
                     Yesterday you heard some logical explanations         continuously hear that something dynamic must be
                 of how various laws passed in recent years melded         done. Long-term planning for the coastal belt should
                 into something that we might describe as an overall       be carried out primarily at the federal level, although
                 scheme for the coastal belt. Within this framework        implementation of the plan may be blocked at all
                 it seems to me that there are two elements of judg-       levels of government.
                 ment about management effectiveness which are                 I think that the Coastal Zone Management Act
                 difficult to cope with. The one is our limited expeT-     and the Fishery Conservation and Management Act
                 ience in implementing legislation.                        provide interacting models for planning and decision-
                     A second element is that coastal belt manage-         making. I do feel that more experience is needed
                 ment to date has largely been carried out on a piece-     with these pieces of legislation before we begin to
                 meal basis, with the result that overall goals and        make any sorts of judgments as to how effectively
                 objectives are not agreed upon at the federal level,      they have been planned and implemented. I think
                 or possibly at any other levels. I think that com-        that the use of offshore oil and gas resources repre-
                 prehensive management, on the scale that we are           sents another area of need for federal management,
                 discussing here,. has bogged down, although this is       although at present no office, public or private, is
                 understandable when we consider some of the basic         responsible for analyzing policy on developing pro-
                 groups involved in the management process. We have        grams for ocean use on a comprehensive scale, which
                 a variety of federal agencies, state and local govern-    take these resource uses and other interests into
                 ments, regional agencies, and traditional industries,     account A number of recent studies have found
                 such as oil and gas shippers, shipbuilders, and the       increasing interest in using the oceans for industrial
                 fishing industry. When you consider the complexity        and energy purposes. these same studies have also
                 of the issues, and the general enormity of the task,      found no mechanisms for assessing these uses, for
                 the obvious questions come to mind: Is the under-         analyzing potential conflicts among them, and for
                 taking possible at all, and aye the overall benefits      recommending priorities of use in future federal
                 to society worth the costs? Beyond these is the issue     policy. The eventual forms these mechanisms for
                 of the mechanisr@s to be used in coastal zone             ocean planning and ocean use take could perhaps be
                 management. At the very least, some of these mech-        a loosely structured federal, state, and local coordi-
                 anisms have already been put into operation through       nating agency with overall responsibility for handling
                 the federal coastal zone management programs.             coastal belt activities.

                                                                         go

                 Regional Mechanisms for Management

                 Frank Gregg

                 Chairman, New England River Basins Commission

                      I might offer a quote of my own from Leslie            New England has all kinds of regional mechanisms
                 Corbit, an official of the Pacific Gas and Electric         which are influencing coastal zone decisions every
                 Company and Planning Director of the State of               day. The problem is not whether there is a regional
                 California, who addressed a meeting in Williamsburg,        mechanism, the problem is in remembering the
                 Virginia, in the fall of 1968. At the meeting, when         initials of all the regional mechanisms we now have.
                 the need for a coastal zone program was mentioned,               The governors meet and deliberate on a regional
                 he said, "If you marine scientists think that you           basis on top-policy provisions for ocean manage-
                 are going to change the power structure of the United       ment A case in point is their energy policy state-
                 States because 80 percent of the political officials        ments of a couple of years ago which particularly
                 allegedly own some part of their time in eastern            endorsed the expansion of nuclear base loads. The
                 systems, you are out of your skulls."                       governors run on a regional economy and they look
                      I think that one of the problems we are dealing        specifically at transportation, energy, and economic
                 with here is that people who are knowledgeable              development. The River Basin Commission, which I
                 about, or care deeply about, the coastal and marine         run, tries to address water and land issues and
                 environment would like to see the governmental              makes recommendations as to how those problems
                 system restructured to reflect the unique conflict          ought to be solved. This work includes establishing
                 of interests and concerns in relationships that arise       priorities for federal investments and for the activities
                 in the coastal and near-shore environment. I also           of federal agencies in the river basin, including the
                 think our expectations tend to be unrealistic, and          coastal areas. We work very closely with the coastal
                 I mean to offer several observations in support of this     zoning groups to get their advice on matters which
                 belief. Basically, however, I would like to do three        we ought to be recommending. Each federal agency
                 things. One concerns the plan I just talked about,          has an office in this region, as well as mechanisms
                 the regional management of coastal resources. Such          for getting the agencies together and for interacting
                 management is meant to be a focal point which               among them. We have here in New England a
                 everybody agrees to refer to, where conflicts are           Regional Organization for Economic Development,
                 going to be rated against one another, where serious        the Reserve Bank gives regional talks about coastal
                 evaluations are going to be made, and where deci-           management, and the Sierra Club is concerned about
                 sions are going to be made and implemented. But I           regional matters.
                 feel that such regional management is not going to              If we restate the question and ask: Are we
                 happen at this time, nor should it happen. There            interested in the region being addressed as a single
                 is no general purpose government now at the state           unit, and in providing information about the regional
                 and regional level, and no accountability for               interest to institutions which have direct manage-
                 regional management decisions.                              ment authority? then the answer is yes. There is a
                     The second point I would like to make is that           great deal of regional activity going on, and I would

                                                                          91

                 like to give you a couple of tangible results of these
                 activities. New England was well-equipped in
                 advance concerning the O.C.S. issues that started
                 back in 1972. We have impressed the Bureau of Land
                 Management with the sophistication of the state
                 people in this region, who argue with the Bureau of
                 Land Management about every conceivable detail.
                 This is how the O.C.S. process takes place, and the
                 same situation exists with respect to the level of
                 sophistication so far as other decisions are con-
                 cerned which have an impact on the region. We could
                 take the River Basin Commission itself, which is
                 getting started on a regional port study containing
                 recommendations for a regional port system. The
                 commission recently issued a fisheries, oil, and gas
                 study, as well as an offshore pipeline study, and the
                 Corps of Engineers has recently asked the com-
                 mission to work with them on coordinating dredging
                 activities in the region.
                      In order to help stimulate discussion, let me
                 repeat that I do not believe we are going to get a
                 strong institutional structure at the multistate IeVel,
                 but that we should approach the management of
                 coastal resources from a regional perspective utiliz-
                 ing many agencies at the state, regional, and federal
                 levels.

                                                                         92

                    State Mechanisms for Management

                    Lois Ewen

                    Vice-Chairman, California Coastal Commission

                         California coastal planning was born of citizen        looks much like the old, with one important differ-
                    effort after years of frustration at the legislative level  ence: management of the coast will pass into the
                    to initiate responsive government action to protect         hands of local government as each of the more than
                    California's endangered coastal resources. The fore-        sixty-nine local entities prepares its local programs
                    runner to the present legislation was the Bay Con-          in conformance with the policies and criteria of the
                    servation Development Commission, established in            Act. Additional legislation governing the coastal pro-
                    the 1960s to manage the resources of San Francisco          gram includes a bill to protect wetland areas, a state
                    Bay.                                                        bond to acquire land for urban and coastal park use,
                         The California coast is 1072 miles long, includ-       a bill that establishes a conservancy agency man-
                    ing 387 miles of offshore island shoreline. The coast       dated to acquire and restore degraded lands, includ-
                    is diversified - from the rich, damp redwood forests,       ing wetlands, but whose primary thrust is to initiate
                    long pastoral meadows, rocky coves and headlands of         "innovative" planning mechanisms.
                    the north, to the highly urbanized and industrialized            The issues in California (as in all coastal a-teas)
                    areas of Southern California. But the north, like           are extremely complex: large-scale energy produc-
                    the south, is coming under intense land-use                 tion, development, and distribution, including
                    pressures.                                                  transport and delivery of Alaskan oil and gas; poten-
                         All the complex problems of land-use planning          tial construction of liquefied natural gas facilities
                    and management exist on the California coast, where         and increased offshore oil drilling; limited public
                    85 percent of our 21 million people live. Sixty-nine        access to the coastline; second home build-out; the
                    local governments exist within the present coastal          need to protect coastal agricultural lands from
                    zone boundary: fifteen counties, fifty-four cities,         increasing pressures of development;the preservation
                    and numerous special districts. A significant portion       of wetlands and habitats; the expanded development
                    of the state's economy ties within the coastal zone.        of ports and industry; and coastal recreation -
                         A citizen initiative in 1972, Proposition 20 on the    whose, and how much?
                    California ballot, established a temporary four-year             A speaker yesterday identified the problem of
                    state commission with six regional components,              removing revenue- producing lands from the tax rolls,
                    whose charge was twofold: review development                when such land is acquired for public use. This is
                    permits in the short-term, while a coastal manage-          an issue being debated by government all over the
                    ment plan was developed for the long-term. Extensive        country and the question may never be resolved
                    hearings were held statewide on the plan, prior to          satisfactorily for all interests. But the state of
                    an equally extensive (and intensive) evaluation by          California - through its coastal management pro-
                    the legislatuTe. The Coastal Act of 1976 was signed         gram and other parkland acquisition efforts through-
                    into law by the governor in the summer of 1976.             out the state - has decided that this is an obligation
                         The framework of the new management system             it will assume for the greater benefit and good of all

                                                                              93

                  citizens by providing a -resource for all citizens,         issues of  Alaskan oil and gas, increased offshore
                  not just those with special interests and needs.            drilling or the seeming "either-or" choice of the
                       I have been asked to comment on the advantages         present administration's proposed energy program,
                  of state land use decision-making versus local              which advocates use of nuclear or coal capabilities.
                  decision-making. Coastal management in California           We agree that we must bear our share of energy
                  evolved as the direct result of incremental and             distribution responsibilities and we accept the
                  fragmented policy decisions dictated by local poli-         criticism heard in some quarters that California has
                  tical boundaries and special interests that did not         thrown up roadblocks to a speedy resolution of the
                  respond to regional Or intraTegional needs. One can         problem. It is true that we have adopted a "go slow"
                  only hope that the goals we have set for ourselves -        attitude. But we have done so only to carry out
                  responsible local governmental implementation of            responsive resource and land use management
                  management programs - will, in fact, be realistically       practices that include a critical review of potential
                  possible.                                                   impacts associated with environmental, health, and
                       In addition to guiding local government in the         growth-inducing concerns.
                  development and certification of such programs, the              Resource allocation is another issue confronting
                  State Commission is mandated to prepare programs            California's coastal management efforts - the
                  and studies in conjunction with other state agencies,       equitable balancing of uses between competing
                  dealing with such varied issues as power-plant siting       interests. How to accommodate people's needs and
                  and the siting of liquefied natural gas facilities          strike the appropriate compromise between private
                  and forestry management. One of the "plusses" of the        and public uses of the coast? Or the fine-tune imple-
                  entire coastal management effort in California is the       mentation of consistency between various political
                  attempt to coordinate the plethora of conflicting           boundaries? These are all problems of extreme com-
                  objectives and actions of state and federal agencies.       plexity, as I am sure you will agree.
                  The attempt has yet to be put to a real test, however,           But we are proud of our accomplishments, too.
                  though expectations remain high.                            We have succeeded in arousing citizen awareness
                       Of course, there are problems, and there will          of the need for resource -conservation and protection.
                  continue to be problems in the future. Monitoring           We have increased public access to beaches and
                  and enforcement of local government implementa-             tidelands granted to our citizens under the California
                  tion of coastal programs - the need to see that             Constitution. We have initiated interagency dialogue
                  local government is carrying out its responsibilities       and the beginnings of what we truly hope are co-
                  under the Act - will be a continuing problem, in            ordinated goal objectives on a local, regional, state
                  some instances. Citizen advocacy is crucial in this         and federal level.
                  effort! Paramount, too, is the question of "federal              And perhaps most important of all, we have been
                  consistency": Will it work? Some of us, in looking at       able to effect' expanded citizen input into the
                  the past track record of federal government, are            decision-making process, into decisions directly
                  skeptical. But the federal government has undertaken        affecting citizens and their health and welfare. No
                  an extensive commitment toward the management               other program in California's history has benefited
                  and protection of coastal resources and we can only         as much from public involvement.
                  hope it means it. We would hope, too, that the federal           Should we attempt to do "social engineering," to
                  government will look at interagency policies and            answer many of society's ills through such a manage-
                  regulatory authority, as we in California have done,        ment system? To provide housing opportunities for
                  and will stand by the commitment to coordinate              the low. and moderate income, for example? Many
                  efforts toward achieving this goal.                         think not, yet in attempting to deal with the greater
                       The problem of "national interest" - what is it?       public benefit and good versus the special interest,
                  who defines it? - is another worry. What does the           private rights issue, the state has, -rightly or wrongly,
                  clause in the federal management act really mean in         made a commitment to a broader public policy, one
                  terms of energy development, production, and distri-        that accepts the obligations of responsive and
                  bution, for example? California will very quickly have      responsible goal objectives in decision- making.
                  the opportunity to judge for itself when confronting             Will it work? Time will tell.
                  the afo/ementioned energy supply and distribution

                                                                            94

                   Comprehensive Oil Pollution Liability and Com-
                   pensation Legislation

                   Barbara D. Burke

                   Director of Legislation, American Institute of Merchant Shipping

                        The entire maritime industry is deeply concerned       stance completely outside the spiller's control. The
                   over the increasing proliferation of federal and state      comprehensive legislation which we support fairly
                   laws on liability and compensation for damages              allocates, between oil handlers and oil owners, the
                   arising from spills of petroleum oil. The result has        risk of pollution from a commodity which must be
                   been a legal moyass which deters victims of oil             moved to meet a national need.
                   pollution damage from obtaining the relief to which              This legislation would ensure that no person,
                   they are entitled, burdens commerce, and adds un-           corporation, or governmental entity damaged by an
                   necessarily to consumer costs.                              oil spill goes without fair and expeditious com-
                        The American Institute of Merchant Shipping            pensation. A brief description of the patchwork of
                   (AIMS) believes that those involved in the production       federal, state, and common law which has been
                   and handling of oil should share responsibility for all     evolving due to legitimate concern for protecting the
                   proven economic losses, not just government clean-          marine environment will reveal wasteful duplication,
                   up costs, which may result from oil pollution, to           confusing overlap and seriou's gaps in coverage.
                   the extent the U.S. has jurisdiction. Obviously, those           The Federal Water Pollution Control Act
                   handling oil - whether they be vessels or facilities        (FWPCA) makes the owner or operator of a vessel
                   - should have "front line" responsibility for cleaning      which is the source of a spill strictly liable for
                   up a spill and offering compensation to those who           the governments cleanup expenses, up to a limit of
                   suffer damage. However, the vast majority of these          $100 per gross registered ton (GRT) of his vessel,
                   vessels and facilities are owned by independent             with a $14 million ceiling; facilities are similarly
                   companies which would be unduly burdened if they            liable, up to $8 million. This law provides four
                   were not allowed reasonable and clearly defined limits      defenses, unless the owner or operator's gross negli-
                   on their liability. We believe that as a general rule,      gence caused the spill, in which case liability is
                   owners and operators should be in a position to insure      unlimited. Federal and qualified state government,
                   against a potential polluting incident arising from         cleanup expenditures are covered by a $35 million
                   their particular vessel or facility. The liability limit    revolving fund, into which fines and other monies
                   of such an owner or operator should, as nearly as           recouped from vessel or facility owners are
                   possible, be equal to the cost reasonably anticipated       deposited.
                   to arise from his own potential spill. Oil cargo owners,         Since the Federal Water Pollution Control Act
                   on the other hand, should contribute on a risk basis        deals only with cleanup costs and not the other two
                   to a supplementary fund which would be used to              categories of oil pollution damage - namely, third-
                   back up a spiller and provide relief to claimants in        party claims and natural resources injuries - a series
                   those extraordinary cases where the spiller cannot be       of federal and state laws have been enacted in recent
                   identified, when the spiller's liability limit is exceed-   years in an attempt to ensure compensation for these
                   ed, or when the accident was caused by a circurn-           other damages. These laws are usually tied, to the

                                                                            95

                   geographical location of an oil spill or the source               Another example should adequately illustrate
                   of the oil which caused the spill.                            that a piecemeal approach to liability and compen-
                     . On the federal level, in addition to the FWPCA,           sation for oil pollution damage is not the proper
                   we have the Trans-Alaska Pipeline Authorization Act           one, Both California and Alaska have their own oil-.
                   (TAPS) and the Deepwater Ports Act, all of which              spill laws. Alaska is now preparing regulations to
                   prescribe strict liability for oil-pollution damage.          charge oil handlers (vessels and facilities) an insur-
                   The TAPS law covers damage from the Alaskan pipe-             ance premium, called a "risk avoidance charge,"
                   line oil, with vessel liability of $14 million and a          to build a compensation fund. California repeatedly
                   back-up fund of $ 100 million, built by a 5C per barrel       proposes to amend its law to build a fund from a tax
                   fee on that oil. The Deepwater Ports law covers               on each barrel of oil transferred in the state. Most
                   damages from oil spilled in a prescribed "safety              of the oil which might pollute the waters of those
                   zone" with liability for a vessel not moored at the           states will also be covered by the $ 100 million com-
                   port set at $150 per GRT and a backup fund of $ 100           pensation fund set up by the TAPS Act, under which
                   million, built by a 2C per barrel fee on oil received         separate certificates o  'f financial responsibility are
                   at a deepwater port.                                          being required. If nothing is done to change these
                        Presently pending in Congress are proposed               plans, each barrel of oil moving from Port Valdez to
                   amendments to the Outer Continental Shelf Lands               California could be taxed three times and insurance
                   Act, which would create another liability and com-            coverage for those involved will become a worse
                   pensation scheme, this time to cover damage from oil          legal and financial nightmare than is already the case.
                   spilled in connection. with OCS operations. Liability              In summary, industry is burdened by trying to
                   of vessels and production facilities would be backed          cope with all of the legal liabilities and funds in
                   up by a $200 million fund built by a 3(r per barrel           the FWPCA, the TAPS law, the Deepwater Ports Act,
                   fee on that oil.                                              the proposed fund for offshore oil development, and
                        Virtually all coastal states, and some noncoastal        the laws of virtually all of the coastal states. -The
                   ones, either have their own oil pollution liability           victim of oil pollution damage is faced with confusing
                   and compensation laws or are actively considering             and potentially costly claims procedures and derives
                   legislation. As with the federal laws just described,         no benefit whatsoever that could not be provided
                   each one differs in its approach, but none can                fairly and expeditiously through comprehensive
                   effectively deal with a problem that involves inter-          legislation. -Also, - the consumer of oil ultimately
                   state and foreign commerce.                                   pays for most of the extra costs inherent in a frag-
                        An example of the inadequacy of existing laws            mented approach. A sound solution is offered by the
                   is provided by the Argo Merchant which recently ran           comprehensive legislation, which would triple the
                   aground and broke up off the coast of New England.            existing federal liability level   .for tankers and set
                   Fortunately, the oil from this ship was carried out           levels for facilities ranging up to $5.0 million.
                   to sea by the currents and winds. Under     'the existing           Those  who oppose federal preemption of state
                   patchwork of federal and state statutes, common law           laws have. , argued that if comprehensive federal
                   and industry agreements, if the oil had been driven           legislation works as well as we believe it can, then
                   to Nantucket and Cape Cod or over the Georges Bank            states will recognize that their citizens are thereby
                   fishing grounds, a claimant would have to rely on oil         adequately protected and proceed to repeal their
                   companies' voluntary commitments or contend with              liability laws and eliminate their funds and the
                   complex litigation. With comprehensive legislation            agencies set up to administer them. AIMS views this
                   such as we are supporting today, the natural                  contention as politically, unrealistic. We recognize
                   resources under federal   .or state jurisdiction (includ-     the. difficulties inherent in this sensitive area but
                   ing fish since the Fishery Conservation and                   must strongly urge a prohibition on other liability..
                   Management Act took effect March 1, 1977) as well             schemes and Other funds with their varied ap-
                   as all proven Property damage and other economic              proaches to serving the purposes covered by this
                   losses would be covered under a simple admini-                legislation. The consolidation of laws which we are
                   strative procedure.                                           supporting   would   bring- under   one   comprehensive

                                                                              '96

                      liability and compensation scheme              spills of petro-       Oil Pollution Liability and Compensation Legislation
                      leum on inland and ocean waters under U.S. juris-                     Prepared by the American Institute of Merchant Shipping
                      diction, resulting from all sources including ships,
                      barges, terminals, pipelines, refineries, drilling rigs,                    Comprehensive oil pollution liability and compensation
                      production platforms, and deepwater ports. To place                   legislation now pending before Congress would replace the
                                                                                            present proliferation of federal, state and common law which
                      this proposed scheme on top of the present patch-                     fails to ensure that persons, corporations or governments
                      work of federal and state laws would only add to the                  damaged by an oil spill are fairly compensated.
                      problem instead of solving it.                                              This legislation would create a replenishable national fund
                                                                                            raised by a simple per barrel tax of up to 3(V on oil received
                           AIMS believes that the source of a spill should                  by terminals for export or import or by refineries, with each
                      be given at least sixty days to try to settle damage                  barrel being taxed only once. The fund would be administered
                      claims voluntarily. Following the mandated report                     by the Department of Transportation with a minimum of bureau-
                      of a spill, the source of the spill should be required                cracy to handle damage claims not settled voluntarily by the
                                                                                             piller (a vessel or facility) within sixty days. The fund would
                      to advertise his identity in accordance with regu-                    bse maintained at between $150 million and $200 million, but
                      lations. The advertising requirement should, how-                     there is really no limit on   the amount of compe     nsation that
                      ,ever, be flexible enough to allow administrative                     can be paid for proven oil pollution damage due to the
                                                                                            authority to borrow from the U.S. Treasury.
                      discretion when potential claimants can be notified                         The patchwork of law which has evolved in recent years
                      by other means.                                                       deals inadequately with the three categories of oil pollution
                         I If a claim is not settled on the "front line" within             damage - namely, cleanup costs, third party claims and natural
                      the allotted time, it should be adjudicated through a                 resources injuries. The result has been wasteful duplication in
                                                                                            some cases, confusing overlap in others, and still serious gaps
                      simple administrative process. If a proposed settle-                  in Coverage exist. The proposed legislation consolidates these
                      ment is disputed, the case could be referred for                      laws and fills the gaps without adding unnecessarily to the cost
                      decision to an administrative law judge or a special                  of "' to the consumer.
                                                                                                  Supporters of this comprehensive approach believe that a
                      three-member panel, with rights to appeal protected.                  spiller's liability should be high enough to cover most spills,
                           Following adjudication, a replenishable national                 butalso insurable, and thata back-up compensation fund should
                      fund would be available for paying damages. This                      be available to take care of catastrophes. This approach fairly
                                                                                            allocates, between the handlers and the owners of the cargo,
                      fund would be raised by a simple per-barrel fee of                    the costs resulting from an oil spill. To have unnecessarily
                      up to 3C on oil received by terminals for export                      high liability on the spiller and a compensation fund would be
                      or import, or received by any refinery, except that                   redundant Trying to prevent spills through a punitive liability
                      each barrel would be taxed only once. The fund could                  system is not only ineffective but also unnecessary since other
                                                                                            laws have as their principal objective minimizing the risk of oil
                      be maintained at up to $200 million, but it should                    spills through safety regulation];s.
                      have authority to borrow from the U.S. Treasury in                          The proposed legislation would triple for tankers and
                      the unlikely event that the money on hand is in-                      ocean-going oil barges the $100 per gross registered ton level
                                                                                            of liability set in the 1970 Federal Water Pollution Control Act
                      sufficient. The fund should, of course, be initially                  (which covered Goverru-nent clean-up expenses only) and raise
                      available for cases in which the spiller is not known                 the $14 million ceiling to $30 million. Inland barges (certificated
                      or not subject to U.S. jurisdiction. We believe that                  for service on rivers and bays) and vessels not carrying oil as
                                                                                            cargo would see their liability increased by 50 percent Facilities
                      the fund's only defenses should be an act of way                      would have liability levels ranging up to $50 million, depending
                      and negligence of the claimant. We also believe that                  on the risk they pose to the marine environment The right to
                      the fund should be under the same time constraint                     limit liability is conditioned on the absence of negligence
                      as the spiller, sixty days for example, to settle a                   on the part of the owner or operator of the vessel or facility.
                                                                                                  Claims not settled voluntarily by the spiller within sixty
                      claim. Such a restriction is completely reasonable                    days for any reason, such as costs exceeded his liability limit
                      inasmuch as the time period does not begin until                      or the accident was caused by an act of war, God or someone
                      after the damage is discovered and assessed, and a                    else, would bring the fund into play. These claims would be
                                                                                            awarded after evaluation by a private adjuster (or possibly
                      claim is presented. However, there should be an                       federal or state personnel). Disputes on judgments would be
                      outside limit on claims of six years from the date                    referred to an administrative law judge or a special three-
                      of the incident which caused the damage.                              member panel, Rights to appeal are protected.
                                                                                                  This simple administrative process is a vast improvement
                           We are optimistic that this legislation, which is                over the existing legal morass which now faces victims of oil
                      in the best interests of all who are affected, will be                pollution damage and thosehandling oil to meet this country's
                      enacted into law this year. I sincerely hope that                     energy needs.
                      vou will recognize its importance and lend your
                      support

                                                                                         97

                    List of Participants
                    ADEBOLU, Femi, Geography and Marine Affairs, University of           CAMERON, Francis X., Geography and Marine Affairs, University
                              Rhode Island, Kingston, RI 02881.                                    of Rhode Island, Kingston, RI 02881.
                    ALEXANDER, Lewis, Geography and Marine Affairs, University of        CAMERON, Robert, Air Force Regional Civil Engineer, 630 San-
                              Rhode Island, Kingston, RI 02881.                                    some St., San Francisco, CA 94111.
                    ALEXANDER, Timothy, NOAA/Coastal Zone Management, 3300               CANNON, Edward, U.S. Coast Guayd/U.S. Department of Trans-
                              Whitehaven St., N.W., Washington, DC.                                portation, Washington, DC.
                    ALLEN, Alice, Coastal Resources Center, University of Rhode          CANOPASK, Peter, Graduate School of Oceanography, University
                              island, Kingston, RI 02881,                                          of Rhode Island, Kingston, RI 02881.
                    ANDERSON, Sue, Institute for Marine and Coastal Studies,             COFFREY, Peter, Federal Power Commission/NYRO, 26 Federal
                              University of Southern California, 100 West Water St.,               Plaza, New York, NY 10007.
                              Wilmington, CA 90744.                                      COLLINS, Clarkson, Geography and Marine Affairs, University of
                    ARMSTRONG, John, Coastal Zone Lab., University of Michigan,                    Rhode Island, Kingston, RI 02881.
                              1101 North University Building, Ann Arbor, MI 48109.       CONRAD, Mr. and Mrs. Eric, Pennsylvania State University,
                    ASTHALTER, Jim, Geography and Marine Affairs, University of                    1939 Millersville Pike, Lancaster, PA 17603.
                              Rhode Island, Kingston, RI 02881.                          DAVIS, Anne, Zoology Department, University of Rhode Island,
                    BASILE, Frank, U.S. Department of the Interior, Bureau of Land                 Kingston, RI 02881.
                              Management, New York Outer Continental Shelf Off ice,      DAVIS, Robert, Planning Dept, City Hall, New Bedford, MA 02740
                              6 World Trade Center, Suite 6000, New York, NY.
                    BEAL, Amy Gray, Graduate School of Oceanography, University          DAY, Alan, New York OCS Office, Bureau of Land Management,
                              of Rhode Island, Kingston, RI 02881.                                 6 World Trade Center. Room 600 D, New York, NY.
                    BECKWITH, Lee, N. Kingstown Chamber Development Office,              DENNIS, Carol, Environmental Protection Agency, Office of
                              P.O. Box 79, North Kingstown, RI 02852.                              Federal Activities, 401 "M" St., N.W., Washington, DC
                                                                                                   20460.
                    BEDKER, Ervin, HW U.S. Air Force/PREV, the Pentagon, Washing-        DEVANNEY, John, Ocean Engineering Department, Building
                              ton, DC 20330.                                                       5-207, Massachusetts Institute of Technology, 77 Mas-
                    BENOIT, Richard, Ecoscience Laboratory, 490 Main St., Norwich,                 sachusetts Ave., Cambridge, MA 02139.
                              CT 06360.
                    BERRY, Wendell Jr., Normandeau Associates, Inc., Nashua Road,        DEVEREAUX, John, 286 Beacon St., Boston, MA 02116.
                              Bedford, NH 03102.                                         DI VENUTI, Robert, American Petroleum Institute, 2101 "L" St.,
                    BERRY, W.L., Shell Oil Co., P.O. Box 60193, New Orleans, LA                    N.W., Washington, DC 20037.
                              70160.                                                     DONAHUE, Kevin, Algonquin Gas Transmission, 1284 Soldiers
                    BIVONA, William, Marine Advisory Service, University of Rhode                  Field Rd., Boston, MA 02135.
                              island, Kingston, RI 02881.                                DONOVAN, Gerald, Resource Development, University of Rhode
                    BOCKRATH, Joseph, Sea Grant Legal Program, 52-60 Law Center'                   Island, Kingston, RI 02881.
                              Louisiana State University, Baton Route, LA 70803.         DRYFOOS, Carol, Center for Ocean Management Studies, Uni-
                    BOHINC, Stanley, Air Force Regional Civil Engineer, Central                    versity of Rhode Island, Kingston, RI 02881.
                              Region, 1200 Main St., Main Tower Building, Dallas, TX     DUERR, Christy, Marine Advisory Service, University of Rhode
                              75202.                                                               Island, Kingston, RI 02881.
                    BOLEYN, Brenda, Association for the Preservation of Cape Cod,        DUNN, Charlene Quinn, NEMAS/ Regional Coastal Information
                              438 Freeman's Way, Brewster, MA 02631.                               Center, University of Rhode Island, Kingston, RI 0288 1.
                    BORAGINE, Ralph, Geography and Marine Affairs, University of         DUNN, Larry, Resource Development, University of Rhode Island,
                              Rhode Island, Kingston, RI 02881.                                    Kingston, RI 02881.
                    BORAGINE, Ruth, Geography and Marine Affairs, University of          DYKSTRA, Jacob, Point Judith Fisherman's Cooperative, Box 730,
                              Rhode island, Kingston, RI 02881.                                    Narragansett, RI 02882.
                    BOTZUM, John, Nautilus, 1056 National Press Building, Wash-          ENGLE, Richard, Deputy District Civil Engineer, Philadelphia
                              ington, DC 20004.                                                    Naval Base, Philadelphia, PA 19112.
                    BOUSSU, Marvin, National Marine Fisheries Service, 191 Main          ESTERLY, Henry, NYC Community College, 444 Kings Highway,
                              St., Gloucester, MA 01930.                                           Tappan, NY 10983.
                    BROWN, Ralph, Clemson University, Clemson, SC 29631.                 EWEN, Lois, California Coastal Commission, 567 "B" Avenue,
                    BROWN, Robert, Animal Pathology, University of Rhode Island,                   Coronado, CA 92118.
                         1    Kingston, RI 02881.                                        FACHE, Simon, Geography and Marine Affairs, University of
                    BURKE, Barbara, Director of Legislation, American Institute of                 Rhode Island, Kingston, RI 02881.
                              Merchant Shipping, 1625 "K" St., N.W., Suite 1000,         FALK, James, Geography and Marine Affairs, University of Rhode
                              Washington, DC 20006.                                                Island, Kingston, RI 02881.

                                                                                      98

                      FEEHAN, Harry, NOAA/Office of Coastal Zone Management,               JOSSI, Jack, National Marine Fisheries Service, RR7A, Box 522A,
                                3300 Whitehaven, Washington, DC 20235.                               South Ferry Road, Narragansett, RI 02882.
                      FERBER, Cornelia, New England River Basins Commission, S5            KEIFFER, Elisabeth, Marine Advisory Service, University of
                                Court St., Boston, MA 02108.                                         Rhode Island, Kingston, RI 02881.
                      FINCH, William, Department of Geography, State University of         KIENINGER, Karl, National Marine Fisheries Service, Office of
                                New York, 1400 Washington Ave., Albany, NY 12222.                    International Fisheries, F4, Page 2, 3300 Whitehaven
                      FOLIT, Ruth, Geography and Marine Affairs, University of                       St., N.W., Washington, DC 20235.
                                Rhode Island, Kingston, RI 02881.                          KNAUSS, John, Graduate School of Oceanography, University of
                                                                                                     Rhode Island, Kingston, RI 02881.
                      FRITSCHIE, Gustave, National Fisheries Institute,     1730 Penn-
                                sylvania Ave., N.W., Suite 1150, Washington, DC.           KNECHT, Robert, Office of Coastal Zone Management, 3300
                      GANDI, Dick, EASAMS Ltd., Manor House, London Road, Black-                     Whitehaven St., N.W., Washington, DC 20235.
                                water, Camberley, GU170AA Surry, England.                  KNIGHT, Harriet, South Carolina Coastal Council, 4 Carriage
                                                                                                     Lane, Suite 205, Charleston, SC 29407.
                      GARVER, Joanna Durham, Marine Technology Society, Common
                                Ed. Potential of Oceans, 1442 Yellowood Ct., Reston,       KOGA, Tatsumi, Specialist of Overseas Affairs, I I th Floor Nippon
                                VA 22090.                                                            Bldg., 6-2 Otemachi 2-Chome, Chujoda-K, T 100, Tokyo,
                      GATES, John, Resource Development, University of Rhode Island,                 Japan.
                                Kingston, RI 02881.                                        KOSMARK, John, Graduate School of Oceanography, University
                      GOLLEYMORGAN, Ethnan, Marine Affairs, University of Rhode                      of Rhode Island, Kingston, RI 02881.
                                Island, Kingston, RI 02881.                                KOVACIK, Charles, University of South Carolina, Columbia, SC
                      GRAY, Walter, Marine Advisory Service, University of Rhode                     29208.
                                Island, Kingston, RI 02881.                                KRUG, Gene, Federal Energy Administration, Room 7112, 1200
                      GREGG, Frank, New England River Basins Commission, 55 Court                    Pennsylvania Ave., N.W., Washington, DC 20461.
                                St., Boston, MA 02108.                                     LABAREE, Benjamin, Munson Institute, Mystic Seaport, Mystic,
                                                                                                     CT 06355.
                      GRIGALUNAS, Thomas, Resource Economics, University of                LAENDNER, Goeffrey, New York University, 8 Holst Drive,
                                Rhode Island, Kingston, RI 02881.                                    Huntington, NY.
                      GUIMOND, Alan, Atlantic Offshore Fish and Lobster Associa-           LAKEY, Keith, New England River Basin Commission, 55 Court
                                tion, Box 730, Narragansett, RI 02882.                               St, Boston, MA 02108.
                      HAGIST, Norma, University of Rhode Island, Kingston, RI 02881.       LATOS, Cheryl, Box 375, Kingston, RI 02881.
                      HAMMERSCHLAG, Dieter, Community Planning and Area Devel-             LAW, Ronald,   I U.S. Coast Guard/Cons. Division, Eastern Divi-
                                opment, University of Rhode Island, Kingston, RI 0288 1.             sion, 1725 "K" St., N.W., Suite 204, Washington, DC
                      HARLIN, Marilyn, Botany Department, University of Rhode                        20006.
                                Island, Kingston, RI 02881.                                LEOPOLD, Lawrence, Director UCS/MHS, U        niversity of Southern
                      HARRINGTON, Daniel, Economic Development Administration,                       California, 100 West Water St., Wilmington, CA 907 44.
                                U.S. Department of Commerce, Washington, DC.               LUTZ, Robert, McGeorge School of Law, University of the
                      HAWKINS, Cheryl, Environmental Protection Agency, 401."M" St.,                 Pacific, 3200 5th Ave., Sacramento, CA' 95817.
                                S.W., WH-548, Washington, DC 20460.                        LYONS, John, Rhode Island Coastal Management Council, 83
                      HENNESSEY, Timothy, Political Science, University of Rhode                     Park St., Providence, RI 02903.
                                Island, Kingston, RI 02881.                                MANN, Roy, Roy Mann Associates, Inc., 180 Franklin St.,
                      HOLMSEN, Andreas, Resource Economics, University of Rhode                      Cambridge, MA 02139.
                                Island, Kingston, RI 02881.                                MANTZARIS, Christopher, National Marine Fisheries Service,
                      HOPKINS, F. P., U.S. Coast Guard, 150 Causeway St., Boston,                    191 Main St., Gloucester, MA 01930.
                                MA 12114.                                                  MARR, Paul, Geography, State University of New York, New York
                      HOWARD, Beth, Geography and Marine Affairs, University of                      Sea Grant Institution, 1400 Washington Ave., Albany,
                                Rhode Island, Kingston, RI 02881.                                    NY 12222.
                      HUGHES, Patricia, Massachusetts Coastal Zone Management              MARSHALL, Nelson, Graduate School of Oceanography, Uni-
                                Program, 100 Cambridge St., Boston, MA 02202.                        versitV of Rhode Island, Kingston, RI 02881.
                      HUTCHINSON, Ken, Coordinator, New England Marine Advisory            MATHEWS, Kent, U.S. Coast Guard, OCGD I (M), 150 Causeway
                                Service, New England Center for Continuing Education,                St, Boston, MA 02114.
                                Durham, NH 03824.                                          MATSUDA, Yoshiaki, Woods Hole Oceanographic Institute, 573
                      JEFFRIES, Perry, Graduate School of Oceanography, University                   Woods Hole Rd., Woods Hole, MA 02543.
                                of Rhode Island, Kingston, RI 02881.                       McKENZIE, Sandy, Geography and Marine Affairs, University
                      JOHNSON, Milton, Chief, Special Studies Staff, Office of NOAA                  of Rhode Island, Kingston, RI 02881.
                                Corps, U.S. Department of Commerce, Rockville, MD          MELAMID, Alexander, New York University, New York, NY 10003.
                                20852.

                                                                                        99

                    MINER, William, Coastal Resources Management Council, East         SAVICK, Joseph, Department of Planning and Urban Develop.
                             Shore Road, Jamestown, RI 02835.                                    ment, City Hall, 60 Commercial Way, East Providence,
                    MITCHELL, James, Environmental Resources, Cook College,                      RI 02914.
                             Rutgers University, New Brunswick, NJ 08983.              SCHNEIDER, Claudine, Coastal Resources Center, University of
                    MOTLEY, John, U.S. Department of Commerce, JFK Federal                       Rhode island, Kingston, RI 02881.
                             Building, Room E429, Boston, MA 02203.                    SCHNEIDER, Eric, Environmental Protection Agency, South
                    MUNTER, Florence, Environmental Protection Agency, Environ-                  Ferry Road, Narragansett, RI 02882.
                             mental Impact Office, 2203 JFK Building, Boston, MA       SCHOEN, Robert, U.S. Geological Survey, National Center 750,
                             02203.                                                              Reston, VA 22092.
                    NELSON, Stewart, Office of the Oceanographer of the Navy,          SEAVEY, George, Coastal Resources Center, University of Rhode
                             Hoffman, 22,200 Stovall St., Alexandria, VA 22332.                  Island, Kingston, RI 02881.
                    NESBITT, Samuel, Fellows, Kee and Nesbitt, Main Street,            SEYMOUR, John, Department of Management, Texas A & M Uni-
                             Bucksport, ME.                                                      versity, College Station, TX 77841.
                    NIBLOCK, Robert, Office of Technology Assessment, 119 "D" St.,     SLOAN, Lucy, National Federation of Fishermen, 38 Queen St.,
                             N.E., Room A 726, Washington, DC 20510.                             Cambridge, MA 02139.
                    NIXON, Dennis, Geography and Marine Affairs, University of         SMITH, Les, Massachusetts Coastal Zone Management Program,
                             Rhode Island, Kingston, RI 02881.                                   20th floor, 100 Cambridge St., Boston, MA 02202.
                    NIXON, Scott, Graduate School of Oceanography, University Of       SMITH, Stanley, U.S. Coast Guard Academy, New London, CT
                             Rhode Island, Kingston, RI 02881.                                   06320.
                    NORTON, Virgil, Resource Economics, University of Rhode            SORENSEN, Jens, Sea Grant Institute of Urban and Regional
                             Island, Kingston, RI 02881,                                         Development, University of California, Berkeley, CA.
                    NYULASZI, Stephen, Chief Technical Assistant, U.S. Department      SPAULDING, Irving, Resource Economics, University of Rhode
                             of Commerce, Philadelphia, PA.                                      Island, Kingston, RI 02881.
                    O'CONNOR, Dennis, Ocean and Coastal Law Program, University        SPAULDING, Malcolm, Ocean Engineering, University of Rhode
                             of Miami, School of Law, Coral Gables, FL 33124.                    Island, Kingston, RI 02881.
                    OLSEN, Stephen, Coastal Resources Center, University of Rhode      SPIRO, Jim, Geography and Marine Affairs, University of Rhode
                             Island, Kingston, RI 02881.                                         Island, Kingston, RI 02881.
                    OSBORN, Kenneth, National Marine Fisheries Service, Environ-       STUBBS, Anne, RI Governor's Office, State House, Providence, RL
                             mental Assessment Division, 2001 Wisconsin Ave.,          TIPPIE, Virginia, Center for Ocean Management Studies, Uni-
                             N.W., Washington, DC 20235.                                         versity of Rhode Island, Kingston, RI 02881.
                    OVIATT, Candace, Graduate School of Oceanography, University       TROTT, Edith, Northern Virginia Community College,
                             of Rhode Island, Kingston, RI 02881.                                Annandale, VA 22003.
                    PAVLOVICH, Bob, U.S. Bureau of Mines, 2401 "E" St., N.W.,          VIGIL, Max, HUD Region 1, Community Planning and Develop-
                             Columbia Plaza, Washington, DC 20441.                               ment, JFK Building, Boston, MA 02203.
                    PERRIN, Shepard, Louisiana Offshore Terminal Authority,            WALTER, Robert B., 8 15 Lagoon Lane, Lantana, FL 33462.
                             Department of Transportation and Development, P.O.        WEST, Niels, Geography and Marine Affairs, University of Rhode
                             Box 44245, Capitol Station, Room 202, Baton Rouge,                  Island, Kingston, RI 02881.
                             LA 70804.                                                 WEYGAND, Robert, Department of Planning and Urban Develop-
                    PONTECORVO, Giulio, Graduate School of Business, Columbia                    ment, City Hall, 60 Commercial Way, East Providence,
                             University, New York, NY 10027.                                     RI 02914.
                    PRAGER, Anna, Town of South Kingstown, 66 High St., Wakefield,     WILDERMANN, Richard, U.S. Coast Guard, 72 Thurston Terrace,
                             RI 02879.                                                           Glen Rock, NJ 07452.
                    PRAGER, Jan, Environmental Protection Agency, South Ferry          WILSON, Mason, Ocean Engineering, University of Rhode Island,
                             Road, Narragansett, RI 02882.                                       Kingston, RI 02881.
                    ROGERS, Carolyn, National Marine Fisheries Service, RR7A,          WINBERRY, John, University of South Carolina, Columbia, SC
                             Box 522A, South Ferry Road, Narragansett, RI 02882.                 29208.
                    RORHOLM, Niels, Resource Development, University of Rhode          WONG, Robert, Air Force Regional Civil Engineer, 526 Title
                             Island, Kingston, RI 02881.                                         Building, 30 Pryor St., S.W., Atlanta, GA 30303.
                    ROSS, Neil, Marine Advisory Service, University of Rhode Island,   WYNGAARD, Bruce, State University of New York SS-109
                             Kingston, RI 02881.                                                 Department of Geography, 1400 Washington Ave.,
                    ROTHSCHILD, Brian, National Marine Fisheries Service, Page I                 Albany, NY 12222.
                             Building, Wisconsin Ave., Washington, DC 20235.           YAMHURE, Alvaro, Environmental Protection Agency, Office of
                    RYNER, Peter, Travers Group, Inc., 530 W. 7th St., Travers City,             Federal Activities, Washington, DC.
                             mi.                                                       ZEITLIN-HALE, Lynne, Coastal Resources Center, University of
                    SAINSBURY, John, Fisheries and Marine Technology, University                 Rhode Island, Kingston, RI 02881.
                             of Rhode Island, Kingston, RI 02881.

                                                                                    100

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                                                                                                GAYLORD No. 2333                               PRINTEDINU.S.A.

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