assessment of the need for a national marine sanctuaries program Phase I of study of the framework of the Marine Sanctuaries Program

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An Assessment of the Need for a
NationaL Marine Sanctuaries Program

Contract Number # CNA/OCZM 7-35118

prepared for

The Office of CoastaL Zone Management
NationaL Oceanic and Atmospheric Administration
Department of Commerce

prepared by

The Center for NaturaL Areas

Washington, D.C.; South Gardiner, Me.; Los AngeLes, Ca.

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

ER
TE.
tj j jI' W Ll 4

From the days of discovery and coLonization,
America has Looked to the sea. In times of
stress the sea has been our aLLy, and in
times of peace, a source of our prosperity.
Sometimes hostiLe and sometimes generous in
its moods, the ocean aLways has offered its
abundant resources in countLess ways. But
onLy recentLy have we begun to perceive its
true potentiaL.

Commission on Marine Science, Engineering
and Resources, Our Nation and The Sea, A PLan
for National. Action, p. vi, (1969).

AcknowLedgements
Prepared Under the Direction of
io John B. NobLe, Esq., Director of Law

Staff Members
ALfred G. Zangri, Director of Economics
llichaeL C. BLumm, Esq., Assistant Director of Law
John T. Epting, EnvironmentaL PLanner
Stark Ackerman, LegaL Assistant
David W. Laist, CoastaL EcoLogist

LegaL Interns
JoeL BLumstein Jim WoeppeL
Gary Thompson Jim Cummings
BiLL Booth

ConsuLtants
Judith Penna Robinson
Rezneat DarneLL

Support
Rosemary Roberts

ALfred Zangri and David Laist combined in the writing of Chapter II cleaLing with
"PhysicaL WorLd ReaLties." MichaeL' ElLumm composed Chapter III's "EvoLution of
a Response: LegisLative Recogniti.on," in addition to being principaLLy respon-
sibLe for the "Executive Summary" in Chapter I. John Epting was principaLLy
responsibLe for Chapter IV's "ImpLementation of the LegisLative Response: 140AA
PoLicy and Strategy," whiLe Stark Ackerman authored "The FecleraL/State RoLe in
Managing Marine Resources" contained in Chapter V.

John NobLe was responsibLe for guiding research, reviewing drafts of aLL the
chapters, and ensuring that the study was responsive to the needs of the Office
of CoastaL Zone Management. Judith Robinson's insight into existing and past
administrative poLicies aLso heLped in this regard. Rezneat DarneLL's sugges-
tions were of considerabLe importance in documenting the bioLogicaL degradation
of the marine environment, as weLL as ascertaining the internationaL concern
for protecting marine resources.

JoeL BLumstein and Gary Thompson provided considerabLe assistance in researching
the LegisLative history of and reaction to the marine sanctuaries LegisLation
In addition, aLong with Jim WoeppeL, Jim Cummings, and BiLL Booth, they heLpe@
in editing the study. Rose-mary Roberts spent many Long hours typing the study.

The Center for NaturaL Areas wouLd Like to express its appreciation to Commander
PhiLLip Johnson, Marine Sanctuaries Coordinator at the Office of CoastaL Zone
Management, for his heLpfuL comments on the draft of this study. The Center
wishes aLso to thank Robert W. Knecht, Associate Administrator for CoastaL Zone
Management; Richard Gardiner, Acting Director for PoLicy and Programs; and Dr.
Robert Kifer, former Marine Sanctuaries Coordinator, for their advice and
assistance.

TabLe of Contents
Preface .......................................................

Chapter I - Executive Summary ............................................

Chapter Il - PhysicaL WorLd ReaLities ..................................... 7

A. The PubLic's View of the Sea ....................... 7

B. The Marine Environment ................................... 9

C. Degradation of the Marine Environment .................... 11

D. PubLicLy Ascribed Marine VaLues ........................... 15

Chapter III EvoLution of a Response: LegisLative Recognition ............ 25

A. Overview of the NationaL Response to Threats
Upon NaturaL'Re'sources ................................... 25

B. Overview of the LegisLative Responses to Pressures
on the Marine Environment ................................ 28

C. LegisLative History of the Marine Sanctuaries Program .... 31

D.. TitLe III of the Marine Protection, Research, and
Sanctuaries Act of 1972 .................................. 37

E. LegisLative Reaction to TitLe III -- 1972-77 .............. 40

1. Appropriations Hearings .............................. 41

2. LegisLative and Oversight Hearings ................... 42

Chapter IV ImpLementation of the LegisLative Response: NOAA PoLicy
and Strategy ................................................. 55

A. Existing PoLicies and GoaLs of the Marine Sanctuaries
Program ................................................. 55

1. PoLicy Statements ..................................... 55

2. CLassification of Marine Sanctuaries ................. 57

3. The Designation Process .............................. 59

TabLe of Contents (con't.)

B. Existing and Nominated Marine Sanctuaries ................ 61

1. Existing Sanctuaries ................................. 61

a. MONITOR Marine Sanctuary ......................... 62

b. Key Largo CoraL Reef Marine Sanctuary ............ 62

2. Nominated Sanctuaries ................................ 65

C. CompLementary Programs ................................... 67

1. The Estuarine Sanctuaries Program -- Comparison
With Marine Sanctuaries .............................. 68

2. SimiLar State Programs ............................... 71

a. FLoricla .......................................... 72

b. Massachusetts .................................... 72

3. InternationaL Marine Sanctuary-Type Programs ......... 73

D. Effectiveness/AccompLishments of the Marine Sanctuaries
Program ......... 4 ........................................ 74

Chapter V The FecleraL/State RoLe in Managing Marine Resources .......... 82

A. JurisclictionaL Extent of Other FederaL Programs .......... 82

1. FecleraL Resource Management Programs ................. 83

a. Species Protection/Management Programs ........... 83

b. Land Management Programs ......................... 86

c. FecleraL Land Use PLanning Programs ................ 88

2. FederaL ReguLatory Programs ................ *........... 89
a. Outer Con'tinentaL SheLf MineraL Leasing .......... 89

b. PoLLution of bcean Waters ........................ 91

i. Ocean Discharges ........................... 91

ii. Ocean Dumping .............................. 93

TabLe of Contents (con't.)

iii. Protection of Navigation ......................... 94

iv. Shipping ......................................... 95

c. SpeciaL Ocean Uses ..................................... 96

i. Deepwater Ports .................................. 96

ii. offshore Power PLants ............................ 97

d. The AbiLity of FederaL RequLatory Programs
to Protect Marine Resources ............................ 97

B. Comprehensiveness of Existing State Programs ................... 99

C. Trends in Ocean Management ...................................... 102

D. The PotentiaL RoLe of the Marine Sanctuaries
Program ........................................................ 104

Appendix A - SeLected Excerpts from the LegisLative History ..................... A-1

Appendix B - InternationaL Recognition of the Need for Marine
Sanctuaries ........................................................ B-1

Appendix C - Description and Distribution of Basic Estuarine Sanctuaries
by Biogeographic CLassification, IncLuding Proposed Subcategories ... C-1

PREFACE
io In the Late 1960's and earLy 1970's an enLightened sense of urgency was
focused on the intensifying pLight of the nation's coastaL and marine environ-

ments. Most notabLy expressed in the Stratton Commission Report, Our Nation

and the Sea., and the Department of the Interior's Studies, The NationaL Estua-

rine PoLLution Study and the NationaL Estuary Study, this nationaL concern for

haLting the deterioration of environmentat qu6Lity in these areas was converted

to action,by the President's signature on a number of major environmentaL Laws.

Among the more significant of these Laws were the Marine Protection, Research

and Sanctuaries Act of 1972 and the CoastaL Zone Management Act of 1972. Both

of these Acts recognized the profound and prevaLent effects exerted by man's

activities on the coastaL and marine environments, and incorporated provisions

for the estabLishment of protected marine and estuarine sanctuaries that wouLd

preserve particuLarLy vaLuabLe naturaL or cuLturaL features of ocean and Great

Lakes environments.

To date, however, efforts to deveLop a nationaL system of marine sanctu-

aries have been sLow in evoLving. Due to a LeveL of administrative and finan-

ciaL support substantiaLLy Lower than that given the simiLar Estuarine Sanc-

tuaries Program, the Marine Sanctuaries Program has faiLed to cLearLy articuLate

program goaLs and objectives necessary to effectiveLy impLement the marine

sanctuaries concept to its fuLLest potentiaL. ALthough two marine sanctuaries

have been estabLished the first being the site of the USS MONITOR off the

North CaroLina coast and the second being the ocean area adjacent to the John

Pennekamp State Park in the FLorida Keys -- it seems cLear from the LegisLative

history of the Marine Protection, Research, and Sanctuaries Act, that Congress

intended much more from the Marine Sanctuaries Program than that which has

transpired in the nearLy 5 years since its enactment.

Most recentLy, in an attempt to increase the LeveL of effort towards a

comprehensive Marine Sanctuaries Program, the Office of CoastaL Zone Management

(OCZM) requested in its 1977 budget cycLe additionaL staff positions and fund-

ing. However, the Department of Commerce determined that as a prerequisite to

approvaL, OCZM shouLd prepare a program pLan justifying the additionaL funding

and emphasis. In an effort to ensure that the fuLL potentiaL of the Marin e

Sanctuaries Program is reaLized, the OCZM awarded a contract to the Center for

NaturaL Areas, a.non-profit research corporation speciaLizing in environmental.

management from an intercliscipLinary perspective, to conduct this study. The

foLLowing study assesses the need for a continued or expanded fecleraL Marine

Sanctuaries Program.

An overview of the studyls major findings and concLusions appears in

Chapter I.

1. Executive Summary

The history of the United States is LargeLy a history of taming the

wiLderness, of expLoiting the frontier for its bountifuL suppLy of naturaL

resources. During the nation's formative years, most peopLe advocated unre-

stricted use of these vaLuabLe and seemingLy inexhaustibLe resources. With

the dedication of YeLLowstone NationaL Park in 1872, the passage of LegisLa-

tion to preserve forests in a nationaL forest system in 1891, and the estab-

Lishment of the nation's first wiLdLife refuge in 1903., however, the nation

began to recognize the need to protect and conserve its pubLic Land resources.

Yet even among the conservation-minded there were both the John Muirs, who

argued passionateLy for the preservation of pristine Land areas for their own

sake, and the Gifford Pinchotso who supported a more utiLitarian approach to

these resources.

The confrontation over the preservation and wise utiLization of Land-

based resources continues. But it is onLy recentLy that such a cc nfrontation

has begun over marine-reLated resources. The oceans and Great Lakes, once

considered a wasteLand, have increasingLy become recognized as the nation's

new naturaL resources frontier. What today appears to be LargeLy unexpLoit-

abLe or inexhastibLe.may not remain beyond the reach of man's technoLogy

tomorrow. As the pioneers of this frontier, it is our responsibiLity to

recognize the impending cleveLopment of our marine resources and to ensure

that cleveLopment does not bring destruction, but is accompanied by a

wise, weLL-considered approach to the utiLization and preservation of the

naturaL resources of the nation's oceans and Great Lakes, This study is an

examination-of the potentiaL roLe which the fecleraL Marine Sanctuaries Program

can pLay in deveLoping such a nationaL approach to the marine environment.

The succeeding chapters of the study anaLyze in cletaiL the physicaL worLd

setting encompassed by the ocean and Great Lakes environments; the LegisLation

and LegisLative history that estabLished the Marine Sanctuaries Program; the

administrative poLicies and st.rategies for impLementing the program; and the

reLationship of the program to other existing fecleraL and state programs which

might compLement, enhance, or reduce the effectiveness of the Marine Sanctu-

aries Program. This Executive Summary wiLL highLight some of the more saLient

findings and concLusions reached in the-more detaiLed anaLyses that foLLow in

the body of this study.

After describing pubLicLy heLd attitudes concerning marine-reLated re-

sources and summarizing the speciaL treatment which various LegaL systems have

accorded pubLic uses of the marine environment, Chapter II examines the muLti-

tude of monetary and non-monetary vaLues generaLLy attributed to ocean and

Great Lakes resources. The chapter aLso examines resource degradation occur-

ring in these aquatic environments, concLuding that a Marine Sanctuaries Pro-

gram possesses a unique potentiaL to stem this trend toward degradation in

designated areas. This unique capacity resuLts from the opportunity to re-

strict certain human activities incompatibLe with the exceptionaL vaLues for

which the area was set aside, whiLe at the same time encouraging specific
compatibLe uses. ChaptJ-11 cuLminates with an examination of the competitive

nature of pressures exerted on these resources and concLudes that an effec-

tiveLy impLemented federaL Marine Sanctuaries.Program couLd aLso resuLt in a

significant.decrease in the "transactionaL costs" associated with aLLocating

scarce.ocean and Great Lakes resources among these competing pressures.

Chapter III focuses its attention on the congressionaL response to the

competing pressures described in Chapter 11 which resuLted in the 1972 enact-

ment of TitLe III of the Marine Protection, Research, and Sanctuaries Act,

cleaLing with marine sanctuaries. It first demonstrates that enactment of TitLe

III was actuaLLy part of a Larger nationaL response to the congressionaLLy

perceived pressures being pLaced on the nation's Land and water resources.

The major impetus for the 1972 initiative consisted of a series of studies

conducted in the Late 1960's and earLy 1970's that documented the aLarming

extent of the degradation of the quaLity of the coastaL and marine environments.

The LegisLative history of TitLe III cLearLy indicates that Congress intended

the Marine Sanctuaries Program to be an important mechanism to preserve, main-

tain, and enhance the environmentaL quaLity of speciaL areas of the ocean and

Great Lakes environments. This is perhaps best demonstrated by the fact that

the LegisLation grants the Secretary of Commerce considerabLe authority to

ensure that activities within a designated marine sanctuary are consistent

with the purposes for which the sanctuary was designated. SimiLar in many

respects to the consistency provisions embodied in the CoastaL Zone Management

Act, TitLe III's consistency provision may be even broader in scope, since it

does not mereLy pertain to fecleraL activities. Chapter III concLudes with an

assessment of the congressionaL reaction to efforts to impLement TitLe III in

the nearLy five years since its enactment.

Specific congressionaL attention, particuLarLy that of the Chairmen of

the House Subcommittees with oversight functions, has focused upon the funding

LeveLs required to sustain a viabLe Marine Sanctuaries Program. That congres-

sionaL interest in the program remains high is demonstrated by the fact that

Congress authorized funding LeveLs for fiscaL year 1976 and the transition

quarter more than 4 times higher than that which was requested by the previous

Administration. There is, moreover, no evidence to indicate that Congress

wouLd not be receptive to appropriation requests comparabLe to authorization

LeveLs -- however no appropriations requests have been submitted to Congress.

CongressionaL interest in the Marine Sanctuaries Program was most recentLy

expressed on March 9, 1977, by Congressman John Breaux, now Chairman of the

House Subcommittee on Fisheries and WiLdLife Conservation and the Environment,

who suggested that funding authorizations for the Marine Sanctuaries Program

be cLoseLy tied to authorizations for the CoastaL Zone Management Program.

Chapter IV turns its attention to the administrative efforts to impLe-

ment TitLe III. It examines the existing poLicies of the NationaL Oceanic

and Atmospheric Administration, in order to cLose the circLe between poLicy

statements and specific impLementation efforts. In this Light, existing and

nominated marine sanctuaries are described as weLL as the process by which

sanctuaries can be designated. The potentiaL of.other sanctuary programs,

such as the Estuarine Sanctuaries Program and existing state-LeveL ocean

sanctuaries-type programs, to compLement and enhance the effectiveness of

fecleraLLy designated marine sanctuaries is anaLyzed, with the concLusion that

by deveLoping effective mechanisms to foster coordination with these compLe-

mentary programs, the Marine Sanctuaries Program can take a Large step toward

becoming the'powerfuL. tooL that Congress envisioned. The Chapter cuLminates
with an assessment of the efficacy of impLementation efforts, concLuding that

the principaL reasons why the program has not fuLfiLLed its potentiaL are the

Lack of specificaLLy appropriated funds and the need for a viabLe framework

within which to devise an effective nation-wide program.

Chapter V anaLyzes the potentiaL of the Marine Sanctuaries Program in

Light of the federaUstate roLe in the management of ocean and Great Lakes

resources. In this regard, it criticaLLy assesses both the comprehensiveness

and jurisdictionaL scope of authority of existing federaL and state programs

that can be utiLized to preserve particuLar geographic areas or particuLar

species, as weLL as those qrograms designed to reguLate activities which may resuLt

in adverse impacts upon the ocean and Great Lakes environments. The Chapter

concLudes that because these programs are either Land or shore-oriented,

species Limited, or conducted on an ad hoc, reactive basis, they may offer

a potentiaL for compLementing the Marine Sanctuaries Program, but they are

in no sense substitutes for it.

SpeciaL attention is devoted to the authorities conveyed to the Secretary

of the Interior and the President under the Outer ContinentaL SheLf Lands Act

to withdraw certain marine areas from OCS mineraL Lease saLes. Effective

coordination with the OCS mineraL Leasing review process may provide a po-

tentiaLLy vaLuabLe mechanism for identifying areas for marine sanctuaries

designation. This chapter demonstrates, however, that because the authority

to withdraw OCS Lands is empLoyed infrequentLy, on an ad hoc basis, and without

a cLear LegisLative mandate to protect marine resources and vaLues, OCS with-

drawaLs, even permanent withdrawaLs by the President, are simpLy not.viabLe

substitutes for the Marine Sanctuaries Program.

The Marine Sanctuaries Program, with its broad mandate to protect and

restore marine resources and vaLueso its broad jurisdiction over marine areas,

and its fLexibiLity both in terms of designating sanctuaries and in taiLoring

reguLations to the specific protection needed for inclividuaL sanctuaries,

offers a unique, positive, and comprehensive program to protect highLy vaLu-

abLe mari ne resources. In order to reaLize its fuLL potentiaL.. however., the

program must be guided by a comprehensive pLan for impLementing its mandates

in the most cost effective manner possibLe. The Center for NaturaL Areas

strongLy beLieves these vaLuabLe marine areas warrant the kind of protection

that can onLy be assured by an effective, comprehensive, nationaL approach

to the concept of marine sanctuaries.

Il. PhysicaL.-WorLd ReaLities

A. The PubLic's View of the Se-a

HistoricaLLy,, man has Looked toward the sea with a sense of awe and emotion

that has been the product of both fact and myth. ALthough the perceptions kin-

dLed by this combination are as rich and varied as the countLess human cuLtures

it has infLuenced, a consistent theme running throughout man's concept of the

sea has been the vision of an apparentLy endLess and inexhaustibLe resource

that requires no moderat ion in its use.

For centuries the sea has served mankind. She 1 has given us nourishment

for our tabLes. She has provided a transportation medium to satisfy our thirst

for goods not economicaLLy producibLe within our Land boundaries. She has pro-

vided us a convenient and seemingLy LimitLess repository for our wastes. Today..

in the face of growing demands for raw materiaLs. energy, food, waste disposaL,

recreation, and the search for scientific understanding, the sea stands ready

to continue her service. But she is trying to teLL us something. The oiL

sLicks and garbage fLoating in mid-ocean, the apparent near-death of some of

our Great Lakes, and the poLLution of some of our most attractive recreation

areas aLL attest to the fact that the sea's abiLity to continue to serve man

is dependent upon man's abiLity to moderate his demands.

PubLic awareness of the potentiaL threat to the ocean and ne ar-shore en-

vironment has increased dri-maticaLLy in the Last decade. Strong pubLic concern

has Led to the enactment of nationaL LegisLation to protect the coastaL zone,

marine mammaLs. and the quaLity of water entering the sea; to controL sewage

outfaLLs, ocean dumping, and.dredge or fiLL activities; to extend controL over

the management and conservation of fisheries resources; and to more cLoseLy

coordinate ocean mineraL cleveLopment activities with comprehensive pLanning in

the coastaL zone.

These Legis,Lative enactments are each designed to meet specific probLems.

The concept of designating marine sanctuaries, however, represents an oppor-

tunity to manage areas of the ocean as units. It therefore provides a unique

opportunity to Look at the overaLL issues that necessariLy arise when numerous

competing demands are exerted on a scarce resource.

This recent spate of LegisLative activity, however, shouLd be viewed in

the historicaL context of the treatment of marine-reLated resources. As far

back as the time of the Roman Empire, the Roman LegaL system recognized speciaL

pubLic rights in marine and coastaL areas. Roman Law reserved the sea and the
foreshore for free, common, and pubLic use by aLL members-of the Ro man state. 2

WhiLe the MiddLe Ages witnessed a movement away from this notion of pubLic

rights, as maritime states began to appropriate marine resources for specific
uses,3 the concept of speciaL pubLic rights in navigabLe waters and the fore-

shore was adopted by EngLish common Law and embodied in what has become known
as the pubLic trust doctrine. 4

Courts in this country have appLied this concept of pubLic trust to pro-

tect the pubLic's interest in tide and submerged Lands for navigation, commerce,
and fishing purposes from incompatibLe uses. 5 Moreover, the highest court of

at Lea-st one state -- CaLifornia -- has recentLy interpreted the pubLic trust

doctrine to be broad enough to encompass environmentaL and conservation pur-
6
poses.

Thus, speciaL recognition of the importance o f marine and coastaL resources

is not a noveL concept. In Light of the increasing and competing pressures

being pLaced upon the marine environment, however, the concept of the pubLic

trust may serve as a vaLuabLe Lodestar in cleveLoping viabLe approaches to wiseLy

utiLize and preserve marine-reLated resources.
B.- The Marine Environment

Any major anaLysis of the marine environment must recognize the existence

and impLications of certain inherent broad-based ecoLogicaL principLes. Per-

haps foremost among those is the fact that the sea's innumerabLe, diverse, but

recognizabLy important ecosystems and offshore areas, such as coraL reefs,

sandy shoaLs, keLp beds, aLgaL reefs, spawning grounds, offshore canyons, and

sheLLfish beds, are aLL interconnected through an intricate network of physi-

caL, chemicaL, bioLogicaL, and cuLturaL processes that generaLLy defy deLinea-

tion. For exampLe, incoming soLar radiationf which fueLs atmospheric winds,

aLso drives the tremendous water currents,, or "oceanic rivers," circuLating

throughout the worLd's oceans. SoLar energy absorbed in the form of heat by

the ocean water itseLf. when combined with the movement of ocean currents, acts

as a major factor controLLing worLd cLimatic conditions. Heat absorbed by

ocean waters in the tropics is carried by moving currents, such as the GuLf

Stream, to northern Latitudesf where it exerts a moderating infLuence on the

cLimate. The cooLed water then returns to the tropics via southward-moving

currents, thereby compLeting its cycLe around the North AtLantic. SimiLar

current cycLes or gyres are in evidence in other oceans and other hemispheres.

The ocean's ever-circutating waters, however, move much more than heat.

VitaL nutrients which provide nourishment for the grasses of the sea (i.e.,

phytopLankton), fish, and other Living organisms are aLso distributed by the

ocean's circuLation. UnfortunateLy, this same water movem ent aLso circuLates

poLLutants discharged by man into the oceans. The singuLar continuity of the

sea is iLLustrated by the recent discovery of significant amounts of DDT in

Artarctic animaLs which spend their entire Life cycLe thousands of miLes from

the nearest possibLe site of appLication. The DDT experience provides a sig-

pificant insight-into the ocean environment: man is not capabLe of compLeteLy

isoLating an ocean area from events that affect the quaLity of the ocean en-

vironment eLsewhere. The simpLe truth Lies in the knowLedge that today's up-

stream water mass is aLso tomorrow's ambient environment at the downstream

site.

Man's inabiLity to controL water circuLat ion in the ocean environment is

simiLarLy true for other naturaL processes occurring in the sea. Storms,

waves, chemicaL reactionso and the movement of chemicaLs through food chains

are but a few exampLes. Thuso with Limited exceptions (such as cuLtivating

keLP beds and constructing artificiaL reefs), man has a Limited abiLity to

positiveLy manipuLate the marine environment. Insteado the LeveL of man's

success in achieving ocean and Great Lakes management objectives wiLL be

LargeLy determined by his capacity to controL activities which he beLieves

are LikeLy to impact negativeLy upon marine resources.

The foLL.owing two.sections of this chapter discuss the degradation that

has been occurring in the marine environment and the pubLicLy ascribed vaLues

and competing pressures exerted upon these environments.

C. Degradation of the Marine Environment

The past two decades have witnessed a massive human intrusion into the

shaLLow marine waters bordering the.North American continent. The compLex of

factors wh-ich have combined to create this situation incLude the expansion and-

"coastaLization" of the human popuLation, the depLetion and contamination of

terrestriaL and freshwater resources, and the recent cleveLopment of sophisti-

cated marine technoLogy which now aLLows man to enter, work and buiLd on and

under the sea. Of speciaL importance is the nation's increasing desire for

petroLeum hydrocarbons as a source of fueL and industriaL raw materiaLs.

At the present time more than 50 percent of the popuLation of the United

States Lives in the counties bordering the Great Lakes and the ocean, and

this percentage is increasing. It is estimated that by the year 2,000 over

200 miLLion peopLe may Live within cLose proximity to the nation's coastaL
zone. 7 This high popuLation aLong our coasts must dispose of its waste pro-

ducts; and whether these are discharged into rivers, estuaries, or into the

atmosphere, they uLtimateLy reach the sea. Many coastaL metropoLitan and

industriaL areas have aLready rendered adjacent marine areas unfit for most

human uses. Fisheries, recreation areas, and prime ecoLogicaL habitats have

been destroyed by mismanagement, or more properLy, non-management of the ma-

rine habitats and resources. This is at Least partiaLLy due to an exponentiaL

growth of human activities in the coastaL zone, a situation which is certain
to be exacerbated in future years. 8 Another reason is that there has been an

unbaLanced emphasis on cleveLoping these habitats and resources, rather than

conserving their naturaL attributes. The uncLarified jurisdictionaL authority

of the various governmentaL entities invoLved has, moreover, Led to inefficient

management of these marine resources.

Estimates for the nation's petroLeum resources indi,cate that the continen-

taL sheLves bordering our shores contain about 5 times the present proven U.S.
reserves of oiL and about 3 times the proven reserves of naturaL gas. 9 In pur-

suit of these resources a major coastaL technoLogy has been deveLoped, and aL-

ready over 2,000 oiL pLatforms stand on the continentaL sheLf off the Louisian

coast aLone. The drive for offshore oiL is just beginning on the AtLantic and

Pacific sheLves of the contiguous states and on the extensive sheLf off ALaska.

In addition, enormous quantities of sand, graveL, and sheLLs are dredged ann-

uaLLy from nearshore marine bottoms to meet expanding requirements of the con-

struction industry and other needs.

PoLLution of our coastaL waters resuLts from the continuous outpouring of

chemicaL materiaLs and soLid wastes. Among the chemicaLs of particuLar concern

are the chLorinated hydrocarbons, such as DDT and PCB's (substances with broad-

spectrum toxicity and Long haLf-Lives), and certain radioactive materiaLs of

the transuranic series (resuLting LargeLy from weapons testing and nucLear fueL

pLant outputs). A great'\i-ariety of other chemicaL substances are of concern

on a more LocaL and shorter term basis. Of these, crude petroLeum and its

derived products (especiaLLy heavy fueL oiLs) and municipaL sewage shouLd be

mentioned. T4o these shouLd be added a variety of soLid wastes derived from

the dumping of construction and inclustriaL wastes, overboard disposaL of wastes

from marine surface craft., and the debris of marine wrecks and coastaL storms.

Many of the soLid wastes are Long-Lived and tend to accumuLate on the bottom
10
areas.

PhysicaL damage to marine bottom habitats resuLts from dumping of dredge

spoiL, soLid wastes, sewage sLudge and other materiaLs; water transport of

poLLutants from other areas of discharge; and direct human activities (e.g.,

construction; dragging of anchors; dragging of fish nets; and over harvest of
11
sheLLs, coraL, and other materiaLs by divers.)

In the great expanse of water, the surface observer is not LikeLy, to per-

ceive the deLeterious effects of such activities. However, the bottoms and

water masses are not as unchanging as the surface might suggest. In areas of

poor fLushing, toxic materiaLs tend to accumuLate, both on the bottom and in

the water coLumn. Of speciaL importance here is the probLem of organic waste

accumuLation (resuLting chiefLy from municipaL sewage This materiaL requires

a vast amount of oxygen for compLete breakdown. In areas of poor circuLation,

sewage accumuLation may Lead to near or compLete exhaustion of oxygen, espe-

ciaLLy near the bottomsp and this may severeLy reduce or compLeteLy eLiminate

marine Life from Large areas of the sea bottom. Toxic metaLs and'other chemi-

caLs, which accompany the organic sewage, aLso tend to accumuLate in such areas.

For these reasons, marine ewage dumps and outfaLLs may poison marine Life and

restrict habitats for many miLes downstream of the primary area of contamina-

tion. Submerged hiLLs, ridges, reefs, and other "topographic highs" are often

favored pLace-s for commerciaL ships to anchor and are thus subject to the dis-

charges of trash and other poLLutants during their Layover period. Party boats

and private pLeasure craft seek out such areas for fishing, scuba diving, and

other activities. These features are, therefore, subject to muLtipLe damage

from anchors, chemicaL poLLution, and in some cases, overharvesting. It shouLd

be observed that topographic highs often support therarest and most sensitive
of 'the marine systems. 12

What are the impacts of aLL these activities on marine species and marine

ecosystems? Most of the activities are cLearLy deLeterious, but for the most

part, we are ignorant of the specifics. Marine systems are enormousLy compLex;

and criticaL, probLem-oriented, scientific investigations are far too rare and

too restricted in scope to provide the basis for informed judgment, much Less

for management recommendations. In a recent NationaL Academy of Sciences'

study on the assessment of poten,tiaL ocean poLLutants it was concLuded that

not enough data exists to pinpoint the effects of poLLution on marine species
and ecosystems. 13 In pointing out the need for more criticaL data, the report

concLuded that, "the time when we couLd afford to stumbLe from crisis to crisis

has passed and we must begin to anticipate our impacts on the oceans...." In

a simiLar vein, after reviewing society's impact on the coastaL zone, Bostwick

Ketchum, in his study of criticaL probLems in the coastaL zone, concLuded that,

if we are to arrive at an effective management scheme for the coastaL zone,

we wiLL need to sort out thp-se kinds of interreLationships of uses, and recog-
nize the constraints they impose on one another." 14 The need for management

is obvious, and the need for research to support this management is criticaL.

In the absence of LegaL and management constraints, society is free to pursue
io its destructive practices in aLL areas of the continentaL sheLves with impunity.
Species, habitats, and ecosystems of the coastaL waters are cLearLy in jeopardy,

but site-specific information and the extent of the damage in most cases remain

to be determined.

Because many of these areas are being degraded, it is important to under-

stand their worth and vaLue to society in their non-degraded state. The foLLow-

ing section of this chapter anaLyzes the vaLue of these areas to the pubLic and

examines the competing pressures being exerted upon them.

D. PubLicLy Ascribed Marine VaLues

There is that moment on a Long coLd day of faLL drizzLe
in the Pacific Northwest when the mouth of the river
suddenLy bursts with the first opening of the steeLhead
run.. There is that moment when the cLump of fishing
boats fLoat stiLL and siLent on the endLess bLue of
Long IsLand Sound in Late September and earLy October,
and then burst their tranquiLity. First, from nowhere.*
there is the rising, screaming, swirLing gathering of
seaguLLs, chasing and driving toward the sea. Then the
boats roar in equaL abandon to join the ever massing
seaguLLs. The bLuefish are rising and have caught us
in their eternaL web. The rationaL order of daiLy Life
is broken. We are part of the great cycLes of seaguLL,
sun and moon; the mingLing of waters in estuaries, the
phragmites and spartina of the wetLands, the seagrass
and pLankton, the birth and death and wonder of ocean
Life./15

WiLLiam Burch's eLoquent prose serves to remind us aL L that there are vaL-

ues not readiLy expressed in monetary terms The fisherman, the recreator, the

homebuyer, and the cleveLoper, aLL go down to the sea, for reasons not entireLy

refLected in the doLLars and cents return they expect to obtain. There is a

reason why ccrastaL Land vaLues are higher than simiLar inLand property. There

is a reason why coastaL residents and visitors, and even those who have never

seen the sea, join forces to fight oiL deveLopment in adjacent coastaL waters.

There is aLso a reason why coastaL areas support a Large portion of our recrea-

tion areas. From time immemoriaL, mankind has been attracted by the mystery

and majesty of the sea.

A struggLe is taking pLace concerning the utiLization of our oceans and

Great Lakes resources. The recognition that these bodies of water are a Limited

resource has evoLved as a naturaL sociaL and economic consequence of the in-

creasing demands being pLaced upon them. Any resource that is abunclantLy and

freeLy avaiLabLe, such as air (drinking water, once free, has increasingLy dur-

ing this century become a priced commodity), commands no "price" in a market

economy. With onLy few exceptions such as scuba divers, man has never feLt the

necessity to pay for the air he breathes.

Recent events have, however, demonstrated that we do have to pay to breathe

cLean air. The price of cLean air is refLected in increased prices for goods

and services whose production and utiLization affects air quaLity. But these

payments have not been a resuLt of the normaL operation of the market pLace.

Rather, they are the resuLt of pubLic intervention in the economy. They are

the resuLt of pubLicLy supported LegisLation and administrative reguLation en-

forcing specific LeveLs of air quaLity. When viewed from this perspective,

these Laws constitute an economic demand for cLean air. This demand for cLean

air must necessariLy be baLanced against increased production costs of other

goods and services, as weLL as the potentiaL impact on nationaL income and em-

pLoyment that.- these increased costs may precipitate.

The history of th e struggLe for cLean air is Long and invoLved, but the

Lessons appLy to the current struggLe for the preservation, maintenance and

enhancement of the environmentaL quaLity of our oceans and Great Lakes.

Over the Last decade, numerous efforts have been made to identify and
16
quantify the vaLues associated with the marine environment. On the one hand

are the monetary vaLues associated with extraction and utiLization of the sea's

resources. A study prepared in 1974 for the Senate Committee on Commerce mea-
sures some of these monetary vaLues: 17

In 1972-73, the LeveL of primary economic activity,
or output, represented by cleveLopment of aLL U.S.-
controLLed ocean resources is roughLy estimated at
$7.5-$7.8 biLLion in 1973 doLLars. ComparabLe totaL
vaLues for 1985 are crucleLy projected at $23-26 biL-
Lion, and for 2000 at $33-44 biLLion, aLL in 1973
doLLars. These figures excLude the ocean's vaLue as
a receptacLe for waste, not now even roughLy quanti-
fiabLe.

The tabLe accompanying the report estimates the monetary vaLue by category
and projects the ocean's increased vaLue to the year 2000. 18

TABLE I ~-ESTIMATED AND PROJECTED PR~I~M~ARY ECONOMIC ~'~,~A~LUE OF ~@~EL~ECT~ED OCE~l~i~n R~E~S~oU~R~C~E~S TO THE
UNITED STATES. BY TYPE OF ACT~1~1~f~lTY~, 1972~73 2000. IN T~E~R~.~,~'~ OF CROSS OCEAN RELATED OUTPU~IS
l~i~n billions of 1973 d~o~ll~a~ts~l

Activity Chapter 1972 197~3 19 ~8~5 ~200~0

M~in~e~c~il r~e~s~iurces:
Petroleum ................................ ~7 2. 4~0 ~1~0 ~5~0
N~A~t~ura~i ~e~as~ . ..... .......... ........ ~80 5~. ~2~0 ~8. ~@~n
~@~.~!~A~!~,~q~n~n~e~se nodules .......................
~~.~.~.~.~.~.~.~.~...~. ... ~2~9
~s~u~i~l~u~f ... ............................... -------------- ~.~~1~4 04
F~,~esh ~a~t~ir_ ...................... .............. ~n~J ~0~2 ~.~0~4
C~o~,~i~s~truc~t~,~on materials ............. ....... ~6.............. ~.~01 .0~3
~M~a~p~,~ne~s~lum ............. ...... .......... ~7............
- ~.~1~4 .31
Other .................................... ~7 .................... ~.~0~1 ~.~0~2

Total .................................. ....... I............... 3. 40 ~15. ~8~2 ~19.~52

L~i~vin~i~z ~i~e~s~n~,~jr~,e~s:
~F~a~od fish ~ .. ......... ................... 8 0.7~4 .......... 0. ~9~5~- ~1. 'A 1~.37- 4.0~1
I~m~Iu~Mri~al fish ~ .. ........................ ~9 ~.0~5 ... ------ ~.05~- .0~8 ~.0~5~- .1~4
Botanical resources .... ................... ~1~0 (~1) ..........

Total ........................... ................ ~.79 ... ...... 1~.0~0~ 1. CIS ~1. ~42- ~k 15

N~o~ne~x~tr~a~r~t~i~ve uses:
~E~n~e~f~e~y~~ ................................. ~1~1 ........................ ~.~58~- .~9~1 3.7~8- ~q.~0~3
R~~!~c~te~it~i ~on............................... ~Q ~0.70~- .97 .......... 1. 1~2- ~1. 5~r~) 1~.~6~4 2~.~5~3
T r~am~s~o~nr~ta~t~i~on ......................... _ 1~3 2. 57 .......... 4, ~d~O~- 6.21 5.88-11.41
C~o~m~m~1~J ca lion ... ....................... is ~. 13 .. ....... ~.~2~6~- . ~3~5 .4~4- . 35
Receptacle for waste ............ .......... 14 ~q0..........

Total ............................................ 3.40~- 3. 67 .......... 6. 3~6- 8~.~9~3 ~IZ.74~-~20.~82

Grand total ....................................... 7.~S9- 7.86 .......... 23. 1~8 Z6~. 3~1~3 ~33~. ~68-~". ~49

~ln~@~t~r~t~n~ifi~c~a~nt~.
~3 r~a~te~n~t~ia~ily ~s~iR~n~ifi~c~a~n~t, bid un~m~e~,~sur~able.
Source: Chs. ~2 through IS. (Resources and uses other than minerals, there estimated and proi~ect~ed in 1972 dollars. are
here adjusted to 1973 dollars to facilitate comparison.)

There shouLd be LittLe question that these monetary vaLues have increased

greatLy since 1973, both as a resuLt of the movement to extend the nation's

economic jurisdiction over marine resources, as evidenced by the recentLy es-

tabLished 200~-miLe fisheries management zone, and recent shifts in our energy

status.

Competing with activities that generate direct monetary vaLues are a host

of activities that generate either Less direct monetary vaLues or non-monetary

vaLues. Many of the indirect or non-monetary vaLues commonLy att~.ributed to the

sea are dependent upon the quaLity and condition of the broad geographic setting

in which they are Locate&- Many of these vaLues are derived from reLativeLy

smaLL geographic areas. ExampLes of LocaLized but significant ocean ecosystems

and areas are in~0qcLuded in TabLe 2:

TabLe 2. LocaLized Areas of ExceptionaL VaLue

A. ExampLes of speciaL ecosystem or habitat types

1. CoraL and aLgaL reefs
2. KeLp beds
3. Sponge communities
4. Topographic highs
a. Rocky outcrops
b. Snapper banks
5. Areas of high production
6. Areas of high species diversity
7. Areas characterized by unique fLoraL and/or faunaL assembLages

B. Habitats of species of commerciaL importance (fish, shrimp, crab,
Lobster, moLLusk)

1. spawning grounds
2. Other sensitive Life history areas (feeding, migration, etc.)

C. Habitats of species of esthetic or other importance (birds, mammaLs,
fish, crustaceans, moLLusks, etc.)

1. Rookeries
2. Feeding and nursery areas
3. Migration routes

D. Unique geoLogicaL features

1. Topographic sites (topographic highs, submarine canyons, etc.)
2. Ice-age reLics (submerged bogs, reefs, speciaL artifact sites,
etc.)

E. ArchaeoLogicaL sites

1. Submerged human habitation sites
2. HistoricaL wrecks
3. Other submerged human artifact sites

F. Areas of exceptionaL recreationaL vaLue

1. Viewsheds adjacent to estabLished coastaL parks
2. Marine scuba divfN areas
3. RecreationaL fishing grounds

GeneraLLy, the most important of these areas are concentrated on the continentaL

sheLves stretdhing from the shoreLine out to the continentaL sLope, an area
which contains approximateLy 43% of this nation's federaLLy heLd pubLic Lands'. 19

Areas such as those in TabLe 2 contribute both directLy and indirectLy to many

of the vaLues commonLy ascribed to the oceans bordering our shores. For rec-

reationaLists, these areas provide sites for fishing, boating, scuba diving,

and nature study. CoastaL residents and visitors find inspiration and a sense

of serenity in the timeLess motion, openness, and change of these sites. For

scientists and non-scientists aLike, these areas provide abundant source mater-

iaL for investigation into the working of nature and the marine environment.

Some of these vaLues are, as the above quotation from WiLLiam Burch aptLy

Mustrates, non- monetary and probabLy non-quantifiabLe. On the other hand,

numerous studies have attempted to approach the vaLuation issue using indirect
methodoLogies 20 and, in many cases, have arrived at rough estimates of these

non-monetary vaLues. WiLLiam Brown, for exampLe, has estimated the vaLue of

sport fishing for saLmon and steeLhead in the State of Oregon aLone to be ap-
proximateLy $24.6 miLLion (1974 cloLLars). 21 It shouLd be observed, however,

that the difficuLties in arriving at accurate quantifications are Mustrated

by a 1970 report of the U.S. Fish and WiLdLife Service, which reported varia-

tions in estimated expenditures on oceanic recreation ranging from $50 miLLion
to $3.86 biLLion for the year 19'64. 22

CLearLy, there are strong competing pressures to utiL ize the ocean and

Great Lakes environment. it is equaLLy cLear that there are strong economic

interests behind these competing demands. Just as there is no formaL market

for cLean air, there is no formaL market for a Living ocean environment. The

pubLic cannot.-"buy" a Living ocean, but the pubLic can reguLate man's impact

to achieve an optimum amount of Living oceanic environment. With the passage

of LegisLation and the promuLgation of reguLations concerning marine mammaLs,

endangered species, dredging or fiLLing, ocean dumping, and outer continentaL

sheLf (OCS) Leasing, the pubLic has become increasingLy invoLved in decisions

affecting the oceans and Great Lakes.

This pubLic invoLvement has, however, been LargeLy Limited to repetitive,

continuaLLy arising use decisions at specific ocean sites. That is, each new

use proposed for any site currentLy requires a determination of suitabiLity.

A poignant exampLe of the ad hoc nature of current decision-making affecting

the marine environment is provided by the present OCS mineraL-Leasing process.

As is discussed more fuLLy in Chapter V of this study (see pp. 89-91),

the current OCS Leasing process aLLows the Secretary of the Interior to deLete

specific areas from Lease saLes for, among other reasons, their criticaL en-

vironmentaL significance. Because one of the procedures for deLetion serves

onLy to excLude the specified areas from the immediate Lease saLe, the areas

are not "withdrawn" from future saLes, Thus, subsequent saLes may require

reconsideration of these areas, which wouLd increase administrative and pubLic

review and, consequentLyo drive up "transactionaL costs."

WhiLe the President possesses authority to permanentLy withdraw specific

tracts from OCS Leasing,.s.Ugh action has been taken onLy twice in the past 24

years. These two areas are the Key Largo CoraL Reef Reserve and the Santa

Barbara EcoLogicaL Preserve and Buffer Zone (see pp. 62-63). There exists, more-

over, no prog.-ram-wide-reguLations or guideLines for these permanent withdrawaLs.

And, since they are made on an ad hoc and infrequent basis, it is difficuLt to

predict those activities which might be restricted in these areas (see pp. 39-
91). Thus, the potentiaL for muLtip Le reviews remains, suggest ing that the

potentiaL for high transactionaL costs may be as great in the case of "permanent"

withdrawaLs as it is with respe ct to temporary deLetions.

On the other hand, by empLoying a comprehensive review process to assess

which marine areas are best suited to specific uses, transactionaL costs can

be significantLy decreased. The potentiaL for such an approach exists in the

Marine Sanctuaries Program. For exampLe, the Key Largo Marine sanctuary, which

encompasses over 100 square miLes of coraL reef,is permanentLy protected and
managed for onLy $55,000 per year. 23 To understand the potentiaL of this pro-

gram, however, it is necessary to thoroughLy review the LegisLation which es-

tabLished the program., in terms of the events which Led to its enactment, its

specific LegisLative history, the LegisLation itseLf, and congressibnaL reaction

to efforts to impLement the program. The succeeding chapter of this study

anaLyzes these factors in cletaiL.

Footnotes, Chwapter II

1. ALthough the Center for NaturaL Areas recognizes that the sea has no
gender, there seems to be a consistent convention in some quarters to
refer to the sea with a femaLe pronoun. With due regard to Poseidon
and Neptune, the Center makes this concession to convention.

2. See, e.g., G. Knight, THE LAW OF THE SEA: CASES, MATERIALS, AND
READINGS pp. 5-6, (1976); and J. Sax, DEFENDING THE ENVIRONMENT
pp. 163-64, (1971).

3. Knight, supra note 2, p. 8.

4. P. DeLaney, "TITLE, JUS PUBLICUM, AND THE PUBLIC TRUST: AN HISTORICAL
ANALYSIS," 1 Sea Grant Law J. 13, 17-18 (1976).

5. See J. Sax, "THE PUBLIC TRUST DOCTRINE IN NATURAL RESOURCE LAW:
EFFECTIVE JUDICIAL INTERVENTION" 68 Mich. Law Rev. 471 (1970).
For a recent reexamination of the pubLic trust doctrine, see G.
BerLand, "TOWARD THE TRUE MEANING OF THE PUBLIC TRUST," 1 Sea
Grant Law J. 83 (1976).

6. MARKS v. WHITNEY, 6 CaL. 3d 251, 259-60, 91 CaL. Rptr. 790 (1971).
For a review of CaLifornia's interpretation of the pubLic trust
doctrine, see Center for NaturaL Areas, THE ROLE OF LAW IN THE
DESIGN AND IMPLEME14TATION OF THE SANTA CATALINA ISLAND CONSERVATION
AND RECREATION PLAN: A GUIDE FOR MANAGEMENT, pp. 238, 293-300.0
(1976).

7. Rezneat M. DarneLL,. "ANALYSIS OF THE NEED TO EXPAND THE MARINE
SANCTUARIES PROGRAM: FOCUS UPON CONSERVATION AND ECOLOGICAL
NEEDS," (1977) (unpubLished study) p. 4.

8. Bostwick H. Ketchump THE WATER'S EDGE: CRITICAL PROBLEMS OF THE
COASTAL ZONE, (1972).

9. DarneLL, supra note 7, p. 4.

10. id., P. 5.

11. Id.

12. Id., pp. 5-6.

13. NationaL Academy of Sciences, Ocean Affairs Boarclp ASSESSING POTENTIAL
OCEAN POLLUTANTS, (1975).

14. Ketchum,, supra note 8.

15. WiLLiam'R. Burch, Jr., "SociaL Aspects in the ALLocation of Marine
RecreationaL Resources" in MARINE RECREATIONAL FISHERIES,, First AnnuaL
Marine RecreationaL Fisheries Symposium (February 27, 1976).

16. See, e.g., Commission on Marine Services, Engineering, and Resources,
OUR NATION A14D THE SEA (1969); U. S. Department of the Interior, THE
ESTUARI14E POLLUTION STUDY (1969); Bostwick H. Ketchum, THE WATER'S
EDGE -- CRITICAL PROBLEMS OF THE COASTAL ZONE (1972); ArnoLd W. Reitze,
Jr., ENVIRONMENTAL PLANNING: LAW OF LAND AND RESOURCES, chapter 19
(1974); U. S. Department of the Interior, NATIONAL ESTUARY STUDY (1970).

17. NationaL ocean PoLicy Study of the Senate Committee on Commerce, 93d
Cong., 2d Sess., THE ECONOMIC VALUE OF OCEAN RESOURCES TO THE UNITED
STATES, p. 3 (1974).

18. Id., p. 54

19. See, J. Muys, "The FecleraL Land," in FEDERAL ENVIRONMENTAL LAW, pp.
493, 504, (1974).

20. See, e.g., P. Bohos, "Estimating the Demand for PubLic Goods: an
Experiment," in EUROPEAN ECONOMIC REVIEW (1972); C. Cicchetti, and
A. Freeman, "Option RenewaL and Consumer SurpLus," in QUARTERLY
JOURNAL OF ECONOMICS (1971); M. CLawson, METHODS OF MEASURING THE
DEMAND FOR AND VALUE OF OUTDOOR RECREATION, (1959); J. Knetach,
"Economics of IncLuding Recreation as a Purpose of Eastern Water
Projects," in JOURNAL OF FARM ECONOMICS (1964); K. McConneLL,
"Some ProbLems in Estimating the Demand for Outdoor Recreation,"
AMERICAN JOURNAL AGRICULTURAL ECONOMICS (1975).

21. See, W. Brown, "Economic ImpLications of ALLocation" in MARINE SEA
FISHERIES, First AnnuaL Marine RecreationaL Fisheries Symposium,
(1976).

22. U.S. Dept. of Interior, NATIONAL ESTUARY STUDY, (1970).

23. Comments of PhiLLip C. Johnson, Officer in Charge of the Marine
Sanctuaries Program, on the Center for NaturaL Areas' Draft Phase
I Study (March 23, 1977), p. 2.

III. EvoLutibn of a Response: LegisLative Recognition

The competing LegisLative responses to pressures being exerted on the

nation's coastaL, nearshore, and offshore environments are better understood

if they are pLaced in the Larger context of the nationaL efforts to maintain

and enhance the nation's environmentaL resources. Before describing the con-

gressionaL initiatives which resuLted in the estabLishment of the Marine Sanc-

tuaries Program, this chapter wiLL, therefore, overview simiLar LegisLative

efforts to protect environmentaL quaLity in generaL, and the marine environment

in particuLar. In this manner, a more compLete perspective can be gained as

to the reasons Congress determined that a federaL Marine Sanctuaries Program

was a necessary'eLement in the nation's evoLving oceans poLicy. This chapter

wiLL aLso review the congressionaL reaction to the current M arine Sanctuaries

Program, as exhibited in appropriations, LegisLative, and oversight hearings,

in order to ascertain the concerns of Congress with respect to the impLementa-

tion of the program.

A. 01verview of the NationaL Response to Threats Upon NaturaL Resources

In his 1970 State of the Union Address, former President Nixon signaLLed

that the time had come to deveLop nationaL responses to the pressures being
pLaced on environmentaL resources. 1

I now turn to a subject which, next to our desire
for peace., may weLL become the major concern of the
American peop-Le in the decade of the seventies....

The great question of the seventies is, shaLL we sur-
render to our surroundings, or shaLL we make our
peace with nature and begin to make reparations for
the damage we have done to our air, our Land and our
water?

restori.ng nature to its naturaL state is a cause
beyond party and beyond facti.ons. It has become a
common cause of aLL the peopLe in America, It is
a cause of particuLar concern to young Americans --
because they more than we wiLL reap the grim con-
sequences of our faiLure to act on programs which
are needed now if we are to prevent disaster Later.

On January 1, 1970, as his first officiaL act of the new decade, the President
signed into Law the NationaL EnvironmentaL PoLicy Act (NEPA). In announcing

a comprehensive nationaL poLicy for protecting,,maintaining, and restoring en-

vironmentaL quaLity, NEPA ushered in a new era of LegisLative environmentaL
2
initiatives, both on the fecleraL and state LeveLs. One month after the sign-

ing of NEPA, the President, in his Message on the Environment, indicated that

the estabLishment of the nation's environmentaL poLicy constituted onLy a neces-

sary first step in cleveLoping better programs to manage the nation's naturaL
3

resources:

Like those in the Last century who tiLLed a pLot of
Land to exhaustion and then moved on to another, we
in this century have too casuaLLy and too Long abused
our naturaL environment. The time has come when we
can wait no Longer to repair the damage aLready done,
and to estabLish new criteria to guide us in the future.

The year 1970 aLso marked the submission of the finaL report of the PubLic

Land Law Review Commission, One Third of the Nation's Land. Among the recom-
4
mendations of that report was that:

environmentaL qVaLity shouLd be recognized as an
important objective of pubLic Land management, and
pubLic Land poLicy shouLd be designed to enhance and
maintain a.Kigh quaLity of environmentaL quaLity both
on and of-f the pubLic Lands.

ActuaLLy, a change in the nation's fecleraL Land management pcLL.icies, which had

historicaLLy emphasized disposaL of pubLic Lands and expLoitatio n of their

naturaL resources, was apparent in the 1964 congressionaL act that estabLished

the PubLic Land Law Review Commission:

It is hereby decLared to be the poLicy of Congress that
the pubLic Lands of the United States shaLL be (a) re-
tained and managed or (b) disposed of aLL in a manner
to provide the maximum benefit for the generaL pubLic.

Since a conside.rabLe portion of the nation's pubLic Lands are those Lying on

the continentaL sheLf, pubLic Land management poLicies are of no smaLL import

regarding the utiLization and management of marine resources. In fact, if the

estimated 570 miLLion acres of outer continentaL sheLf Lands are compared with

the approximateLy 750 miLLion acres of federaL OubLic Lands Lying within the
50 states,6 over 43% of the nation's pubLic Lands Lie beneath the oceans.

With the submission of the PubLic Land Law Review Commission's recommenda-

tions, the enactment of NEPA, and growing pubLic awareness of environmentaL

vaLues, as perhaps best exhibited in the Earth Day demonstrations, the year

1970 may be viewed as a miLestone in the nationaL response to the competing

pressures being pLaced on its naturaL resources. The succeeding haLf decade

wouLd witness the institution of nationaL environmentaL protection programs

to controL air, water, noise, soLid waste and toxic chemicaL poLLution. The

nation wouLd aLso move toward estabLishing comprehensive resource management pro-

grams in the coastaL zone and on the pubLic domain, whiLe increasing the num-

ber of geographic areas set aside for conservation purposes, such as wiLderness

areas, wiLdLife refuges, and wiLd and scerLic rivers. ALthough the thrust of

these initiatives was basicaLLy directed toward the management of Land-based

resources, better management of the mar-ine environment has aLso been a goaL of

LegisLative initiatives in recent years.

B. OvervieW-of the LegisLative Responses to Pressures on the Marine
Environment

The starting point for considering the congressionaL responses to the

competing pressures pLaced upon the marine environment is the enactment of
the Marine Resources and Engineering Act of 1966. 7 That act, LargeLy a re-

sponse to studies prepared by the NationaL Academy of Sciences and U. S. Navy

on marine science activities and the roLe of the seas in assuring nationaL
security,8 decLared it the nationaL poLicy to "cleveLop, encourage, and main-

tain a coordinated, comprehensive, and Long-range nationaL program in marine
9
science." It aLso estabLished the Commission on Marine Science, Engineering,

and Resources (the Stratton Commission), whose finaL investigative report,

10
Our Nation and the Sea, made a number of recommendations concerning marine

science and technoLogy and the utiLization of ocean resources. Two of the

recommendations of the Stratton Commission's report, submitted to Congress

in January, 1969,were the estabLishment of the NationaL Oceanic and. Atmospheric

Administration and the enactment of nationaL coastaL zone management LegisLa-

tion. In addition, the Commission strongLy emphasized the compeLLing need to

estabLish a baLanced nationaL program to cleveLop and protect marine-reLated

resources.

The Nation's stake in the uses of the sea is synony-
mous with the promise and threat of tomorrow. The
promise Lies in the economic opportunities the sea
offers, in the great stimuLus to business, industry,
and empLoyment that new and expanded sea-reLated
industries c-ar,-produce .... The promise Lies in mak-
ing avaiLabLe new reserves of important mineraLs and
in ensuring new sources of food. The threat Lies in
the po@tentiaL destruction of Large parts of the coastaL
environment and in the future deterioration of economi-
caLLy_important ports, recreationaL faciLities, coastaL
sheLLfisheries, and fisheries on the high seas ....

A.time of decision is here. MuLtipLe pressures force
the Nation to turn to the sea, and muLtipLe opportuni-
ties await the seaward turning. The time of decision
is not for the FecleraL Government aLone, aLthough Fed-
eraL Leadership is essentiaL. State and LocaL govern-
ments, industry, academic institutions, and the American
peopLe must share in the decision and action.

The ocean does not yieLd its food and mineraL treasures
easiLY; damaged environments are not restored by scat-
tered attacks or the good intentions of a few; the
pLanet's dominant eLement cannot be understood, utiLized,
enjoyed, or controLLed by diffuse and uncoordinated
efforts. The Nation's stake can onLy be reaLized by
a determined nationaL effort great enough for the vast
and rewarding task ahead.

Within a year of the submission of the Stratton.Commission's finaL report,

the Department of the Interior compLeted two major studies on the estuarine
environment. The,first, The NationaL Estuarine PoLLution Study, 12 submitted

to Congress in November, 1969, recommended the estabLishment of an integrated

and comprehensive nationaL program to manage and protect the nation's estuarine
and coastaL resources. IThe second, The NationaL Estuary Study, 13 submitted to

Congress in January, 1970, inventoried the nation's estuarine areas and de-
picted the deteriorating condition of estuarine resources. 14

WhiLe these studies were directed to the nearshore and estuarine environ-

ments, simiLar efforts were undertaken concerning the offshore marine environ-

ment. In an ApriL, 1970, message to Congress on waste disposaL, President

Nixon caLLed attention to the aLarming increase in the amount of wastes being
dumped into the marine environment. 15 At the direction of the President, the

CounciL on EnvironmentaL QuaLity undertook a comprehensive study to ascertain
the dimensions of the probLem. 16 In addition to detaiLing the amount of wastes

being dumped-into the oceans and recommending LegisLation to reguLate the dump-
io ing of materiaLs from the nation's shores, that report made the foLLowing po .Licy
recommendation: 17

High priority shouLd be given to protecting those
portions of the marine environment which are bio-
LogicaLLy most active, nameLy the estuaries and the
shaLLow, nearshore areas in which many marine orga-
nisms breed or spawn. The bioLogicaLLy criticaL
areas shouLd be deLimited and protected.

The cumuLative impact of these studies resuLted in numerous congressionaL

responses designed to protect and manage the nation's marine-reLated resources.

CongressionaL recognition of coastaL and estuarine areas as criticaL environ-

mentaL areas was evidenced by the enactment of the CoastaL Zone Management Act
.18 -reLated
of 1972 SpeciaL protection for endangered and threatened marine
species was provided by the Marine MammaL Protection Act of 1972 19 and the
Endangered Species Act of 1973. 20 Comprehensive reguLatory programs to controL

dredge or fiLL activities and the discharge of poLLutants from stationary sour-

ces into ocean waters were expanded or estabLished by the FederaL Water PoLLu-
tion ControL Act Amendments of 1972. 21 A program to reguLate the transportation

of poLLutants for discharge into ocean waters was instituted by virtue of the

enactment of TitLe I of the Marine Protection, Research, and Sanctuaries Act

22
of 1972. Most recentLy, an expanded nationaL fisheries management program

t
o conserve and reguLate fisheries resources in waters on the U.-S. continentaL

sheLves was effected by the passage of Fishery Conservation and Management Act
of 1976. 23

Thus, the decade foLLowing the enactment of the Marine Resources and

Engineering DeveLopment Act of 1966 has witnessed a spate of LegisLative re-

sponses to the competing pressures pLaced on the marine environment. These

responses, however, have not been part of a baLanced, comprehensive nationaL

poLicy toward the preservation and wise utiLization of the marine environment,

but rather ad hoc responses to demands pLaced.on specific ocean resources.
This is evidenced by the 1974 adoption of Senate ResoLution 222, 24 which estab-

Lished the NationaL Ocean PoLicy Study to assist in deveLoping a cLear, compre-

hensive, Long-range nationaL ocean poLicy. Any consideration of the congres-

sionaL recognition of the need for a federaL Marine Sanctuaries Program must

therefore, be prefaced with the understanding that a nationwide ocean poLicy

remains stiLL in its formative stages, and that it is stiLL possibte for that

program to pLay alvitaL roLe in assuring that the nation's poLicy regarding

the marine environment is one that refLects a baLanced approach to the preser-

vation and wise utiLization of ocean resources.

C. LegisLative History of the Marine Sanctuaries Program

An overview of the LegisLative history of -the Marine Sanctuaries Program

is important not simpLy because courts attach great weight to LegisLative his-
tory in determining the meaning of statutes, 25 but because it often provides

a cLearer indication than does the statuto ry Language itseLf of those factors

which the LegisLature considered in cle termining the need for LegisLation. In

the case of LegisLation such as that estabLishing the Marine Sanctuary Program

which contains no congressionaL findings of fact or specific poLicy clecLara-
tions, 26 an anaLysis of-the LegisLative history is cr%iticaL in estabLishing

the perceived.need for the LegisLation.

As the accompanying chart deveLoped by the Virginia Institute Of Marine
Sciences 27 iLLustrates, the origins of the LegisLation which estabLished the

Marine Sanctuaries Program can be traced to the introduction of eLeven distinct

biLLs in the House of Representat ives in 1968. The biLLs were basicaLLy a re-

action to pubLic outrage stemming from a series of incidents which resuLted in

the degradation of popuLar marine recreation areas, such as the dumping of nerve

gas and oiL wastes off the coast of FLorida and the infamous Santa Barbara oiL

28
spiLL. These biLLs, which contempLated the estabLishment of marine sanctu-

aries off the coasts of CaLifornia, Massachusetts, and New Hampshire, were

directed, in Large measure, to instituting moratoria on mineraL expLoration

in those areas which wouLd be considered for sanctuary designation. As noted
by the Virginia Institute of Marine Sciences, 29

Marine sanctuaries were proposed as a mechanism to
attain a nationaL baLance of uses in the marine en-
,@ironment and ensuring compatibiLity of confLicting
uses. Some witnesses advocated marine zoning to
minimize confLict between competing uses. The con-
cept of sanctuaries as areas for studies of the
naturaL system unencumbered by poLLution was brought
forward as was the concept of preserving marine
areas so that scenic beauty, ocean recreation, and
fishing activities couLd be perpetuated.

But LargeLy due to the fact that they were,coupLed with moratoria on mineraL

expLoration, these biLLs were not even reported by the House Merchant Marine

and Fisheries Committee during the 90th Congress. WhiLe simiLar biLLs were

introduced into the 91st Congress, it was not untiL afterthe compLetion of
the CounciL on Environment-aL QuaLity's study of ocean dumping 30 that a marine

sanctuaries provision, was reported by the House Merchant Marine and Fisher-

ies Committee. This provision was incorporated into H.R. 9727, a biLL which

MARINE PROrECTION, RESEARCH
ANO SA'lICTUARIES ACT
OF 1972

LEGISLATIVE HISTORY
SENATE HOUSE

D 0
-7 =I,,- let
OA A, Ito tl I,% h Id
Rt @'"_Jjf'op Ploll 04
0

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F_ Oct 7 1 970
3 t 0 S 1452 U. @-III
rc. 1910
1 1) 7 1 ') 7 1 0. olso P,-b-l ',)Ctan
P,lloose PI.-,b.t Ollmo-q pllql@ie E'llbl'stl M5, r -0-1
.' rot 1@")MN not

HE AP I ;-GS P I N
Co'-Ce Co- .''e' 111.10 1
9
7
7 1

0.,O..q 0.113 Ili'll'o. it otsl' rI.-I
OltIe I Qe'l.lole
P Po' 4 n AUO'MN 00 71"d M S P
Evool-i,l Ills
O@ I _d
Aom4 on I

- _L1

-lte,
71

? 77
Ocl'-
24. Vi rolled J.11 21. 19 11
Co-e'ce Co'."lev
P.wse Pej.,a
P"'Cose ; Peg,olote oce1j. ch'-C'll Z FVotil
AOWN DOC D,I,Ied DMIJ DOC
H Q 917 7
J,,en, D,,ev, 0-1
rl%sqd Sw 9. 1

00 9. 1972
P.,onst qeq"lqt
Estnbl,'@ m 5
ADMN DOC

KEY

AOMN - Reiv@vlj,ba,j, [email protected]% B-11 o1 1 9 2
CEO -Co.,.C0 of 0.4jar P L 92 - 532
C Z he -ConStal J'alle MlRAQerr,en1
DO r D'v"'tmellf of
1) 1 , I I E %too 1.1h m S
t) ADMN 00 C
vs un"rl, So.cf.0'.61
OAA
h-c 4d-'I1'dh04r--

Source: Virginia Institute of Marine Sciences, MARINE AND ESTUARINE
SANCTUARIES, Rep. No. 70 (1973), p. 10,
. CEA @71 S=

3 3

aLso contempL-ated the reguLation of ocean dumping.

In the House Report accompanying H.R. 9727, the Committee expLained the
purposes which the marine sanctuaries provision were designed to serve:. 31

TitLe III deaLs with an issue which has been of great
concern to the Committee for many years: the need to
create a mechanism for protecting certain important
areas of the coastaL zone from intrusive activities
by man. This need may stem from the desire to pro-
tect scenic resources, naturaL resources or Living
organisms: but it is not met by any LegisLation now
on the books... The pressures for deveLopment of
marine resources are aLready great and increasing.
It is never easy to resist these pressures and yet
aLL recognize that there are times when we may risk
sacrificing Long-term vaLues for short-term gains.
The marine sanctuaries authorized by this biLL wouLd
provide a means whereby important areas may be set
aside for protection and may thus be insuLated from
the various types of "deveLopment" which can destroy
them.

The Committee apparentLy recognized, as is more fuLLy deveLoped in part V of

this study (pp. 89-91), that the authority which wouLd be conveyed to the Sec-

retary of Commerce under TitLe III was considerabLy more comprehensive than

that granted the Secretary of the Interior by the Outer ContinentaL SheLf Lands

Act of 1953 to withdraw marine areas from OCS Lease saLes. This is ampLified

by the Committee's statement of the roLe which marine sanctuaries wouLd pLay
in achieving a baLanced approach to the utiLization of ocean resources: 32

The reasons for designating a marine sanctuary may in-
voLve conservation of resources, protection of recres-
tionaL interestsi the preservation or restoration of
ecoLogicaL vaLues, the protection of esthetic vaLues,
or a combination of any or aLL of them. It is partic-
wLarLy important therefore that the designation cLearLy
state the purpose of the sanctuary and that the regu-
Lations in impLementation be directed to the accompLish-
ment of the stated purpose.

Both th6-House fL.oor debates on H.R. 97Z7 and the accompanying Report con-

tain numerous statements on why a fecleraL program of marine sanctuaries was

needed and the mechanisms that shouLd be empLoyed to impLement it. Some of

the more saLient of these are incLuded in Appendix A of this study. It is

significant to note that even at the time of the House passage of H.R. 9727,

concern was expressed over the LeveL of authorized funding for the program.
For exampLe, as Congressman Harrington noted: .)3

These sanctuaries wiLL immediateLy preserve vitaL areas
of our coastLine from further damage. My onLy reserva-
tion is that we may be drasticaLLy underfunding CTitLe
1113.

After it passed the House on September 9, 1971, the Senate Commerce Com-

mittee began its consideration of H.R. 9727. It reported an amended biLL on
November 12, 1971. 34 The Committee's amended version did not incLude TitLe

111. As the Committee Report expLained, there were two reasons for this.

First, whiLe the Committee noted that the continentaL sheLf was within the

jurisdiction of the federaL government, it beLieved that controL over the

superjacent water coLumn outside of the Limits of the territoriaL sea and the
contiguous zone was beyond its jurisdiction. 35 That Congress no Longer fuLLy

ascribes to this restricted view of the nation's authority over ocean waters
'is evidenced by the enactment of the Fishery Conservation and Management Act

of 1976, which extended the nation's controL over its fisheries-resources to
areas within 200 miLes offshore. 36

The second reason the Senate Commerce Committee deLeted TitLe III was 'be-

cause it beLieved that since the estabLishment of marine sanctuaries wouLd

affect the continentaL. sheLf, the reservation for speciaL protection of certain

areas of the continentaL sheLf was aLready within the authority conferred to
the Secretary of the Interior by the Outer ContinentaL Sh@eLf Lands Act. 37 As

noted earLier, however, the House Merchant Marine and Fisheries Committee was

more correct in its assertion that the TitLe III authority was more comprehen-

sive in scope than that contained in the OCS Lands Act (see p. 34). it shouLd

aLso be observed that whiLe the Senate Commerce Committee did not agree with

the approach adopted by the House, it was in fuLL agreement with the concept
of estabLishina marine sanctuaries: 38

The Committee beLieves that the estabLishment of marine
sanctuaries is appropriate where it is clesirabLe to set
aside areas of the seabed and the superjacent waters
for scientific study, to preserve unique, rare, or
characteristic features of the oceans, coastaL, and
other waters, and their totaL ecosystems. In this we
agree with the members of the House of Representatives.
ParticuLarLy with respect to scientific.investigation,
marine sanctuaries wouLd permit baseLine ecoLogicaL
studies that wouLd yieLd greater knowLedge of these
preserved areas both in their naturaL state and in
their aLtered state as naturaL and manmade phenomena
effected change.

To resoLve differences between the House and Senate versions of H.R. 9727,

a Conference Committee was convened. On October 9,-1972, it agreed to a re-

vised biLL which incLuded TitLe III, with certain modifications in the Language

with the House passed. In expLaining these modificationp, the Conference Com-
mittee stated: 39

The Committee on Conference adopted the House approach,
but modified t@_e Language in some respects to make it
cLear that the reguLations and enforcement activitics
under the titLe wouLd appLy to non-citizens of the
United States onLy to the extent that such persons
were subject to U.S. jurisdiction, either by virtue
of accepted principLes of InternationaL Law, or as a
resuLt of specific intergovernmentaL agreements.

Signed into Law on October 23, 1972, over 13 months after it originaLLy
passed the House, TitLe III of PubLic Law 92-583 became the first, and to date

the onLy broad-based, comprehensive fecleraL LegisLation capabLe of striking a

baLance between the need to cleveLop and utiLize and the need to protect and

conserve the nation's marine resources.

D. TitLe III of the Marine Protection, Research, and Sanctuaries
Act of 1972

October of 1972 may perhaps be the most remarkabLe month in the history

of this nationis attempts to deveLop a baLanced approach to the management of

its naturaL resources. In that month -- indeed within an 18 day period from

October 9 to October 27 - a pLethora of environmentaL and naturaL resources

LegisLation became Law. This fertiLe period witnessed the estabLishment of 3

historic sites; the designation of 4 wiLderness areas; the estabLishment of

or additions to 3 nationaL monuments; the estabLishment of a nationaL wiLdLife

refuge; and the estabLishment of a nationaL seashore and 3 nationaL recreation
areas. 40 In addition comprehensive LegisLation was enacted to controL water,

noise, pesticides poLLution; to provide for the protection of marine mammaLs;
and to estabLish state coastaL zone programs. 41 Thus, the congressionaL re-

sponse to the competing pressures on the marine environment which resuLted in

the passage of the Marine Protection, Research, and Sanctuaries Act was act-

uaLLy part of a Larger response to cleveLop mechanisms to better manage the

nation's naturaL resou,rces.

TitLe III of the Act authorizes the Secretary of Commerce to designate

marine sanctuaries, with the approvaL of the President, in ocean waters as

far seaward as the edge of the continentaL sheLf, in other coastaL waters sub-

ject to the ebb and fLow of the tide, and in Great Lakes or their connecting
waters. 42 The purposes for which marine sanctuaries may be designated are

Listed in section 302(a) of the statute as the preservation or restoration of

these areas "fortheir conservation, recreationaL, ecoLogicaL, or esthetic
vaLues." 43

The Language of section 302 of the Act indicates the expectations Congress

had concerning cooperation and coordination between the Secretary of Commerce

(who has deLegated his authority to administer TitLe III to the Administrator of
NOW 44 and other fecleraL agencies, invoLved states, the pubLic and foreign

governments. First..before designating any marine sanctuary, section 302(a)

requires the Administrator to consuLt with the Secretaries of State, Defense,

Interior, and Transportation, the Admministrator of the EnvironmentaL Protec-

tion Agency, and the head of other interested fecleraL agencies. This consuL-

tation process must incLude an opportunity to review and comment upon proposed
sanctuaries. 45 Second, if a proposed marine sanctuary wouLd incLude ocean
waters within the 3 miLe jurisclictionaL Limit of any coastaL state, 46 or in

any U.S. areas of the Great Lakes, section 302(b) stipuLates that the Admin-

istrator of NOAA must "consuLt with, and give due consideration to" t he views

of state officiaLs before designation. Moreover, the governor of the "invoLved"

state may, in effect, veto areas within that states' jurisdictio n by notifying
the Administrator within' 60 days of the notice of designation. 47 Third, when

sanctuaries incLude areas of ocean waters outside the "territoriaL jurisdic-
tion" 48 of the United States, section 302(c) requires the Secretary of State

to take itapp'r'opriate".actions to negotiate internationaL agreements to protect
the sanctuary and promote the purposes for which it was estabLished. 49 Fourth,

pursuant to section 302(e), before a marine sanctuary can be designated the

Administrator is to hoLd pubLic hearings in coastaL areas "most directLy af-
fected." 50 Fifth, after a marine sanctuary has been designated, section 302(f)

requires that the Administrator consuLt with other interested feclerat agencies
before promuLgating reguLations regarding permissibLe uses within the sanctuary. 51

FinaLLy, section 302(g) requires that any reguLations promuLgated by the Admin-

istrator be deveLoped in accordance with the "recognized principLes of inter-
nationaL Law." Beyond the Limits of the nation's territoriaL jurisdiction," 52

these reguLations are onLy appLicabLe to United States citizens, unLess ampLi-

fied by internationaL agreements or in conformity with other recognized princi-
pLes of internationaL Law. 53

Thus, the cruciaL importance of intrafederaL, federaL-state, and inter-

nationaL cooperation, as weLL as effective pubLic invoLvement.. in-the clesig-

nation of marine sanctuaries was recognized by the drafters of the LegisLation.

The reasons behind this concern are perhaps best iLLustrated by the powerfuL

tooL provided in section 302(f).

Section 302(f) states, in pertinent partt that after a marine sanctuary
has been clesignatedol 54

... no permit, License, or other authorization pursu-
ant to any-other authority shaLL be vaLid unLess the
Secretary shaLL certify that the permitted activity
is consistent with the purposes Efor which the marine
sanctuary was estabLished.3

SimiLar in many respects to the federaL consistency requirements of section

307 of the CcrastaL Zone Management Act, 55 section 302Cf) provides a cLear in-

dication that Congress intended the designation of marine sanctuaries to be an

important mechanism in the cleveLopment of a baLanced approach to a nationaL

ocean poLicy. In fact, because section 307(f) appLies to any permitting author-

ization, it appears to be considerabLy broader than the scope of authority con-

tained in the CZMA's consistency provisions, since it does not mereLy appLy to

fecleraL authorizations.

Authority to enforce vioLations of reguLations promuLgated by the Adminis-

trator is contained in section 303. Persons subject to the jurisdiction of the

United States are LiabLe for civiL penaLities of up to $50,000 per vicLation,

,and vesseLs are LiabLe in rem for these fines. In addition, U.S. District

Courts have jurisdiction to restrain vioLations of the reguLations and to grant
other "appropriate" reLief. 56

To impLement TitLe III, section 304 authorized $10 miLLion for each of

the fiscaL years 1973-75. A 1975 amendment extended funding authorization for
fiscaL year 1976 and the transition quarter at $7.75 miLLion. 57 In spite of

these authorizationsp howevert no funds have ever been appropriated. In order

to ascertain the congressionaL reaction to nearLy five years without funding,

as weLL as congressionaL views as to the need for a fecleraL Marine Sanctuaries

Program, it is, therefore, necessary to review the budget.and oversight hear-

ings which have taken pLace since the enactment of TitLe III.
E. LegisLative Reaction;to TitLe III -- 1972-77

In the years since TitLe III took effectp numerous appropriations, Legis-

Lative and ov"ersight hearings have been conducted concerning the impLementation

of the Marine Sanctuaries Program. For the most part, the oversight hearings

contain the greater amount of comments on TitLe III. The scarcity of comments

an TitLe III in appropriations hearings may be credited to the fact that fund-

ing for TitLe III has never been requested by past Administrations as part of

NOAA's annuaL budget request to Con gress. Thus, comments on TitLe III appear

onLy as an aside to considerations of budget requests to impLement TitLes I

and Il.

1. Appropriations Hearings

The most pertinent comments pertaining to TitLe III are embodied in the

Senate appropriations hearings for fiscaL years 1974 and 1975. As a part

of fiscaL year 1974 hearings, Thomas KimbaLL, Executive Vice-President of the

NationaL WiLdLife Federation, in a Letter inserted into the record on what he

feLt was inadequate funding to impLement the entirety of the programs estab-
Lished by the Marine Protection, Research, and Sanctuaries Act, stated: 53

... the Act aLso authorized the Secretary of Commerce
to designate marine sanctuaries in offshore waters, in
consuLtation with appropriate states... The Adminis-
tration despite past rhetoric on the subject, is pro-
posing to Leave the program compLeteLy unfunded.

The foLLowing yeart testifying before the Senate Appropriations Committee,

Dr. John Townsend, Associate Administrator of NOAA, underscored the importance
of coordinating effectiv"anagement of marine areas with research activities: 59

We must co ntinue to focus our research capabiLities'
to provide criticaL environmentaL information for the
effective management of the marine-environment and
its resources.

During the s@me hearings, Senator HoLLings specificaLLy inquired as to the

proper personneL and funding LeveLs needed to sustain the Marine Sanctuaries

Program. NOAA responded by distinguishing between administrative costs re-

quired to process nominations and those.needed to cover the operationaL ex-

penses of designated sanctuaries. It was estimated that a minimum staff of 5

persons and a budget of approximateLy $100,000 was required to process the 6

nominations which were proposed at that time. TotaL operationaL expenses,

expected to vary wideLy from sanctuary to sanctuary, were estimated to invoLve
an additionaL $230,000, if aLL 6 nominations were to receive designation. 60

The fuLL text of NOAAls response to Senator HoLLings' inquiry is reprinted in

Appendix A.

2. LegisLative and Oversight Hearings

Some of the most poignant comments an the impLementation of the Marine

Sanctuaries Program were made in the 1974 House Oversight Hearings by Congress-

man John DingeLL, then Chairman of the House Subcommittee on Fisheries and

WiLdLife Conservation and the Environment. Chairman DingeLL specificaLLy
asked about the proper LeveL of funding required to sustain the program. 61

The Chair wouLd Like to receive your comments as to
your submissions through the internaL budgetary struc-
ture of the Department of Commerce with regard to your
need under titLe III ...

The Chair aLso advised you that this is to be done
without cLearance through the Bureau of the Budget.

I am rather tired of receiving weLL-strained informa-
tion from the Bureau of Budget. I want to know what
your needs and wishes are, and not what the wishes of
the Bureau of the Budget are.

NOAA's revie'w' of its TitLe III budget requests for fiscaL years 1973-75 was
summarized and inserted into the record as foLLows: 62

In FY'73, NOAA prepared a suppLementaL request of
$75,000 to initiate the program but it was not ap-
proved for transrilittaL to the Congress. No funding
has been requested by NOAA for impLementation of
TitLe III for FY'74 or FY'75. The studies and activ-
ities we have had underway have required onLy Limited
funding, and this has been done within existing re-
sources.

Chairman DingeLL then went on to express his feeLings as to the importance

of the Marine Sanctuaries Program, as weLL as the need to coordinate it with
compLementary federaL programs: 63

Now, the Chair wishes to stress to you the importance
and advise you of utiLizing the marine sanctuaries
provisions with regard to the coastaL unit of the
refuge system.

You foLks down at NOAA and the Department of the In-
terior, Bureau of Sport Fisheries and WiLdLife are
engaged in some very important discussions. You shaLL
keep us informed of your progress, and move with con-
siderabLe vigor.

This is a rather noveL and whoLesome stride forward,
and it is my hope that you wiLL not get deterred in
other matters, and wiLL move with considerabLe vigor
with regard to protection of these areas.

am referring to the Arcadian NationaL Park, which
is in need of some protection, and some of your other
coastaL parks and seashore areas, both aLong the At-
Lantic and Pacific and GuLf Coasts, and aLso out in
the Great Lakes, where we have simiLar opportunity
in connection with the Painted Rocks and SLeeping
Bear Dunes., and other areas of this sort.

Your comments with regard to potentiaL for taking
steps in this direction for incLusion in the record
wouLd be much appreciated.

ALso, I wouLd Like your comments with regard to coop-
eration between your Agency and the Department of the
Interior with regard to steps of this sort, which wiLL
be appreciated, and we wiLL direct a simiLar communi-
cation to the Interior Department, as I have done in
these Migratory Bird Commissions.

In addition, the Subcommittee's interest in designating aLL or part of the
Georges Bank as a marine sanctuary was expressed by staff counseL. 64 It shouLd

be noted that in an earLier Letter to Dr. Robert White, Administrator of NOAA,

Chairman DingeLL strongLy supported the estabLishment of a marine sanctuary on
the Georges Bank, stating: 65

I do wish to be kept cLoseLy informed of progress in
this matter. We did not intend for this TitLe [the
Marine.Sanctuaries Program] to be a nuLLity, and from
everything that I can see, it appears that the need
which it was designed to fiLL may occur most acuteLy
in the particuLar case to which I have referred.

The foLLowing year in 1975, oversight hearings were heLd in both the

House and the Senate. The House hearings were heLd in the context of autho-

rizing appropriations to carry out both TitLes I and III of the Act. Dr.

DonaLd rlarinteau,, NOAA's Deputy Associate Administrator for Marine Resources,

described the Marine Sanctuaries Program as being "a powerfuL tooL for conser-
vation and protection of some of the nation's more vaLuabLe marine areas." 66

Dr. Martineau then quoted former Secretary of Commerce Dent's remarks at the
designation ceremony of the first marine sanctuary, the U.S.S. MONITOR: 67

There is no heritage upon which marine sanctuaries
can rest, no record on which to measure the contri-
bution. But-the potentiaL is tremendous viewed in
terms of the interreLationship.between marine sanc-
tuary programs and those other conservation activi-
ties conducted by NOAA under the CoastaL Zone Manage-
ment Act, the Fish and WiLdLife Act and other Legis-
Lation. In this montage, we have what amounts to a

-substantiaL body of Law speLLing out a major nationaL
environmentaL obLigation; a commitment to the proposi-
tion that as demands for the worLd's marine resources
increase and intensify, the obLigation and the oppor-
tunity to provide for baLanced we'LL managed, envi.ron-
mentaLLy sound use of these resources go hand in hand.

Noting that NOAA expected "the program pace to increase," Dr. Marinteau ex-

pressed support for extended funding authorizations for TitLe III, recommend-

ing $1.25 miLLion for both fiscaL year 1976 and the transition quarter and

$10 miLLion for fiscaL year 1977. In response to a question posed by staff

counseL concerning TitLe III appropriation requests, NOAA observed that whiLe

it had requested that the Secretary of Commerce seek $400,000 to impLement

TitLe III for fiscaL year 1976, the Department of Commerce did not approve
this request. 63

In the 1975 Senate Hearings, NOAA Associate Administrator David WaLLace
again referred to the Marine Sanctuaries Program as a "powerfuL tooL": 69

The marine sanctuary titLe of the act is a powerfuL
tooL for conservation and protection of some of the
Nation's more vaLuabLe marine areas. NOAA beLieves
that the program for impLementing the authorities in
titLe III must be deveLoped and appLied wiseLy and
carefuLLy to accompLish the intent of the LegisLation
which is to assure baLanced protection and utiLization
of unique coastalL areas ... we are proceeding with a
program to estabLish marine sanctuaries to preserve
vaLuabLe coastalL areas.

The Senate's Subcommittee on Oceans and Atmosphere, in a question submitted

for the record, specificaLLy asked why no funds had been.requested of Con-
gress to impLement TitLe III in fiscaL years 1973-75. 70 In response, NOAA

noted that the costs of t he program were being borne by the administrative

budget of the Office of CoastaL Zone Management, and stated that in many in-

stances costt couLd be kept to a minimum by utiLizing existing operationaL
capacities and ensuring against clupLicative administrative functions: 71

We beLieve that the program can deveLop and function
by making every effort to utiLize existing capabiLities
for the operationaL requirements of the sanctuaries.
Thus, minimaL funding wiLL be needed directLy under
TitLe III. Once a given agency has taken on a partic-
uLar roLe, the base program can be augmented to per-
form the new function. This shouLd be more cost ef-
fective.

Among the existing administrative authorities of greatest utiLity to the Marine

Sanctuaries Program are those of the Coast Guard, particuLarLy with respect to

monitoring compLiance with reguLations. In this regard, Rear AdmiraL Robert

Price, Chief of the Coast Guard's 0ffice of Marine Environment and Systems,

has testified before committees of both the House and Senate to the effect

that the Coast Guard is prepared to provide operationaL support to designated
marine sanctuaries. 72

One LargeLy unresoLved issue in the operationaL stage of marine sanctu-

aries concerns the LegaL questions of enforcing sanctions, where the sanctuary

Lies outside the territoriaL jurisdiction of the United States. In response
to a question posed by the Subcommittee on Ocea.ns and Atmosphere, NOAA stated: 73

ALL of the LegaL issues invoLved in the creation of a
marine sanctuary outside the territoriaL waters of the
United States have not been identified. However, cer-
tain LegaL issues have been addressed in connection
with the creation of the MONITOR Sanctuary. LegaL is-
sues vary depending on the nature of the sanctuary and
therefore must be addressed on a case by case basis.
One major issue, that of jurisdiction, seems to be re-
soLved.

The consensus of those who reviewed and commented on
the MONITOR Marine Sanctuary which is about 16 miLes
offshore, is that activities of U.S. citizens can be
lie
46

controLLed in any given designated sanctuary area.
However, the activities of foreign citizens must be
controLLed by means of an internationaL agreement
negotiated by the State Department.

It shouLd be noted that the term "territoriaL jurisdiction" has been generaLLy

interpreted to mean onLy that area over which the United States exercises
dominion and controL as a sovereign power 74 -_ that is, the territorlaL sea,
which at present extends to @h e three miLe Limit. Seaward of the territoriaL

sea, extending an additionaL nine miLes, is the contiguous zone, in which the

United States exercises speciaL customs, fiscaL, immigration, and sanitary

controLs. The recent expansion of fisheries jurisdiction to the 200 miLe

Limit (see p. 34), shouLd be viewed as an extended contiguous zone for the

Limited purpose of the management of fisheries resources. Whether extended

fisheries jurisdiction, or other uniLateraL actions by the United States, may

affect the LegaL questions concerning the enforcement of sanctions wiLL be

investigated in subsequent Phases of the Center for NaturaL Areas' on-going

study.

But perhaps the Largest unresoLved questions concerning the Marine Sanc-

tuaries Program Lie with its LeveL of funding. In the 1972 LegisLation Con-

gress authorized funding LeveLs at ')10 miLLion per year for three years. As

has been documented, however, no funds were ever appropriated, LargeLy because

Congress never received any appropriations request from past Administrations.

NevertheLess, congressioriaL interest in the program remains high. This is

demonstrated by the fact that when, the issue of extending TitLe III's funding

authorization was under consideration by Congre ss in 1975, it authorized a

funding Level of $7.75 miLLion for fiscaL year 1976 and the transition quarter,
in spite of the fact that onLy $1.75 miLLion was requested. 75

That NOAA perceives the need for the program was underscored in the most

recent House oversight hearings, conducted on February 27, 1976. In response

to a question by Congressman Murphy, Chairman of the Subcommittee on Oceanog-

raphy, as to whether T!tLe III was more important in 1976 than it was when ini-

tiaLLy passed, Robert Knecht, now NOAA's Associate Administrator for CoastaL

Zone Management stated, "I wouLd say it is dramaticaLLy more important today
76
than it was in'1972 when the biLL was passed."

The foLLowing coLLoquy between Chairman Murphy and Mr. Knecht, aLthough

somewhat Lengthy, pointedLy iLLustrate� the constraints that have been pLaced
on the program by the Lack of funding. 77

MR. MURPHY. WouLd the program, in your opinion, be
operated any clifferentLy if funds were appropriated
specificaLLy for the purposes of TitLe III? For in-
stance, wouLd we have more than just two marine sanc-
tuaries today?
MR. KNECHT. Yes, I wouLd have to answer that in the
affirmative, Mr. Chairman. The activity we have been
abLe to carry on in the Marine Sanctuaries area has
been Limited because of the Lack of specificaLLy ap-
propriated funds. The decision not to request funds
was made by the administration.
MR. MURPHY. By the administration, do you mean the
Office of Management and Budget?
MR. KNECHT. That is correct. Because of the fiscaL
stringencies that the administration has had to face,
it was a question of setting priorities. Mr. Chair-
man, the point of your question is quite correct.
Our program- a-c-tivity has been Limited to sLightLy
more than 1 man-year of effort per year. I think
where the effort has suffered has been in the area' of
cleveLoping a management program framework. Without
such a framework, we have not been abLe to appLy the
device as aggressiveLy as perhaps the Congress in-
tended, and as I feeL the probLems now require.

MR. MURPHY. WeLL, we wouLd probabLy have more than
two marine sanctuaries had we had some direction and
funding for the titLe III amendments.
MR. KNECHT. That is a bit specuLative and it is dif-
ficuLt to know. I think, had we Laid out a framework
and pointed out opportunities to the various user
groups or interested peopLe for the kinds of objectives
that might be achieved using the marine sanctuary de-
vice, I am sure there wouLd have been greater response
with more peopLe proposing and nominating potentiaL
sanctuaries. It is a Lengthy process ... but I think I
agree with your generaL point.

Thus, there appears to be both LegisLative and administrative agreement

that the Lack of budget appropriations for TitLe III has hampered impLementa-

tion of the congressionaL intent. At the same time, there has been*continuing

17
and active LegisLative recognition of the vitaL roLe which a viabLe Marine

Sanctuaries Program can pLay in heLping to devise a baLanced nationaL approach

to the wise utiLization and preservation of ocean resources. In order to

cLearLy deLineate the potentiaL of the program, however, it is necessary to

thoroughLy review NOAA's existing poLicies and strategies for impLementing

TitLe III, as weLL as asses s its roLe in reLation to other fecleraL and

state programs. The succeeding chaptersof this study wiLL, therefore, focus

their attention on these matters.

Footnotes --'Chapter III

1. State of the Union Address (Jan. 22, 1970), reprinted in CEQ,
ENVIRONMENTAL QUALITY, THE FIRST ANNUAL REPORT OF THE COUNCIL ON
ENVIRONMENTAL QUALITY, Appendix B, p. 250, (1970).

2. ALthough NEPA is aimed excLusiveLy at federaLLy-reLated activities,
the CounciL on EnvironmentaL QuaLity reports that as of ApriL, 1076,
26 states had enacted LegisLation resembLing NEPA in order to require
environmentaL anaLyses of state-reLated activities. CEQ, ENVIRON-
MENTAL QUALITY, THE SEVENTH ANNUAL REPORT OF THE COUNCIL OF ENVIRON-
MENTAL QUALITY, P. 135 (1976).

3. The President's Message on the Environment (Feb. 10, 1970), reprinted
in CEQ, ENVIRONMENTAL QUALITY, THE FIRST ANNUAL REPORT OF THE COUNCIL
ON ENVIRONMENTAL QUALITY, Appendix C, p. 254 (1970).

4. PubLic Land Law Review Comm'n., ONE THIRD OF THE NATION'S LAND, p. 68,
(1970). See aLso Id., p. 70, where the Commission recommended that
Congress enact specific environmentaL and quaLity goaLs for the manage-
ment of Pu6Lic Lands. For an overview of federaL Land management
poLicy, at Least through 1974, see J. Muys, "The FecleraL Lands"
FEDERAL ENVIRONMENTAL LAW, pp. 492-549 (West Pub. Co. 1974).

5. 43 U.S.C. s. 1391.

6. See Muys, supra note 4, pp. 493, 504.

7. P.L. 89-454, 80 Stat. 203 (1966) 33 U.S.C. ss. 1101-08.

8. For an overview of the events preceeding the Act, see Commln. on Marine
Science, Engineering and Resources, OUR NATION AND THE SEA, Appendix 3,
pp. 278-79, (1969).

9. P.L. 89-54, s. 2(a).

10. OUR NATION AND THE SEA, supra note 8.

11. Id., p. 19.

12. Report of the Secretary of the Interior, THE NATIONAL ESTUARINE POLLU-
TION STUDY, S. Doc. No. 91-58, 91st Cong., 2d Sess. (1970). This report
was prepared pursuant to the directives of section 5(g) of the CLean
Water Restoration Act of 1966 (Pub. L. 89-753).

13. U.S. Dept. of the Interior, Fish and WiLdLife Service, Bureau of Sport
Fisheries and WiLdLife and Bureau of CommerciaL Fisheries, NATIONAL
ESTUARINE STUDY (1970). This 7 voLume study was prepared pursuant to
the directives of the Estuary Protection Act of 1968 (Pub. L. 89-454).

14. For a criticaL anaLysis of the two Department of the Interior studies,
see W. Hedeman, "FederaL WetLands Law," in A. Reitze, ENVIRONMENTAL
PLANNING: LAW OF LAND AND NATURAL RESOURCES, pp. two-12-18, (1974).

15. See C. LetLow, "The ControL of Marine PoLLution," in FEDERAL ENVIRON-
MENTAL LAW, supra note 4.

16. CounciL on EnvironmentaL QuaLity, OCEAN DUMPING - A NATIONAL POLICY (1970).

17. Id., p. vi.

18. Pub. L. 9-2-583, 86 Stat. 1280, 16 U.S.C. ss. 1451-64.

19. Pub. L. 92-522, 86 Stat. 1026, 16 U.S.C. ss. 1361-1407.

20. Pub. L. 93-205, 87 Stat. 884, 16 U.S.C. ss..1531-43.

21. Pub. L. 92-500, 86 Stat. 816, 33 U.S.C. ss. 1251-1376.

22. Pub. L. 92-532, 86 Stat. 1052, 33 U.S.C. 1401-21.

23. Pub. L. 94-265, 90 Stat. 331, 16 U.S.C. ss. 1801-57.

24. S. Res. 222, 93d Cong., 2d Sess., 120 Cong. Rec. 3472 (1974). See aLso
S. Rep No. 93-685, 93d Cong., 2cl Sess. (1974).

25. See, e.g. TRAIN v. COLORADO PIRG, U.S. 6 ELR 20549 (1976),
where the Supreme Court reLied heaviLy on the LegisLative history in
interpreting s. 502(6) of the FecleraL Water PoLLution ControL Act Amend-
ments of 1972 (33 U.S.C. s. 1251 et.seq.), in spite of the ap-parent
"pLain meaning" of the statutory Language.

26. WhiLe there are congressionaL findings and clecLarations of poLicy in
TitLe I of the Marine Protection, Research, and Sanctuaries Act (see
33 U.S.C. s. 1401), these are directed excLusiveLy to the reguLation
of ocean dumping activities. There are no simiLar findings or poLicy
clecLarations in TitLe III (see U.S.C. s. 1431-34).

-27. Virgini a Institute of Marine Sciences, MARINE AND ESTUARINE SANCTUARIES,
Rep. No. 70 (1973), p. 10. The Center for NaturaL Areas is indebted to
Virginia Institute of Marine Sciences for the anaLysis of the LegisLative
history of TitLe III, upon which much of its assessment of the earLy Leg-
isLative history (1968-71) of the marine sanctuaries LegisLation is based.

28. Id., p. 9.

29. Id.

30. See note 16, supra.

31. H. R. Rep. No. 92-361, 92d Cong., lst Sess. (1971) p. 15.

32. Id., p.--27.

33. 117 Cong. Rec. 8251 (1971) (Remarks of Cong. Harrington).

34. S. Rep. No. 92-451, 92d Cong., lst Sess. (1971).

35. Id.0 p. 15.

36. P.L. 94-265, s. 101, 33 U.S.C. s. 1811.

37. Senate Report, supra note 34, p. 15.

38. Id.

39. H.R. Rep. No. 92-1546, 92d Cong., 2d Sess., p. 180 (1972).

40. Pub. L. Nos. 92-475, 92-524, and 92-527 (historic sites); 92-476,
92-493, 92-510o 92-521 (wiLderness areas); 92-501, 92-525, 92-537
(nationaL monuments); 92-514 (nationaL wiLdLife refuge); 92-536
(nationaL seashore); and 92-592, and 92-593 (nationaL recreation
areas).

41. Pub. L. Nos. 92-500 (water poLLution); 92-574 (noise); 92-516
(pesticides); 92-522 (marine mammaLs); 92-583 (coastaL zone management).

42. 16 U.S.C. s. 1432(a). No further definition of these areas is provided
in the statute of the impLementing reguLations (15 C.F.R. s. 922).

43. Id. The impLementing reguLations add research to the purposes for
which a sanctuary can be estabLished [15 C.F.R. s. 922.11(b)].

44. 39 Fed. Reg. 10255 (May 19, 1974).

45. 16 U.S.C. s. 1432(a).
-46. As estabLished by the Submerged Lands Act of 1953, 43 U.S.C. s. 1301.
It shouLd be noted that the jurisdiction of certain states bordering
the GuLf of Mexico extends sLightLy beyond 3 miLes.

47. 16 U.S.C. s. 1432(b). Because the scope of authority possessed by
"invoLved" states is not cLearLy defined by the statutory L-anguage if
the proposed marine sanctuary encompassed the waters.of two states,
s. 302(b) couLd possibLy be read as aLLowing one state the opportunity
to veto sanctuary de,&3gnation not onLy to.waters Lying within the
jurisdiction of that state, but aLso to waters Lying within the juris-
diction of adjacent states. This is because the Language of s. 302(b)
speaks onLy to "waters Lying within the territoriaL waters of any
state." Thus, whiLe it may be unLikeLy that a court wouLd choose to
do so, it is at Least conceivabLe that s. 302(b) couLd be interpreted

as modifying the Submerged Lands Act to, in effect, give states a
veto over areas of proposed sanctuaries Lying within the jurisdiction
of other states. ReguLations couLd serve to cLarify or precLucle this
potentiaLity.

48. See text accompanying note 74, infra.

49. 16 U.S.C. s. 1432(c).

50. Id., s. 1432(e).

51. Id., s. 1432(f).

52. See text accompanying note 74, infra.

53. 16 U.S.C. s.*1432(g).

54. Id., s. 1432(f).

55. Id., s. 1456. For a comprehensive assessment of the CZTIA's fecleraL
consistency provisions see M. BLumm and J. NobLe, "The Promise of
FederaL Consistency Under Section 307 of the CoastaL Zone Management
Act," 6 ENVIRONMENTAL LAW REPORTER 50047 (1976).
10 56. Id., s. 1433.
57. Id., s. 1434, as amended by Pub. L. 94-62.

58. Hearings on H.R. 3916 before a Subcomm. of the Senate Comm. on
Appropriations, 93d Cong., lst Sess. pt. 2, p. 1639, (1973).

59. Hearings on H.R. 15404 Before a Subcomm. of the Senate Comm. on
Appropriations, 93d Cong., 2d Sess., pt. 2, p. 841, (1974).

60. Id., pp. 864-65.

61. Ocean Dumping Oversight Hearings Before the Subcomm. on Fisheries and
WiLdLife Conservation and the Environment and the Subcomm. on Oceanography
of the House Comm. on Merchant Marine and Fisheries 93d Cong., 2d Sess.,
Ser. No. 93-98, P. 230, (1974).

62. Id.

63. Id.

64. Id.

65. Id., p. 232.
-0 53

66. Hearings on H.R.. 5710 and H.R. 6282 Before the Subcomm. on Fisheries and
WiLdLife Conservation and the Environment and the Subcomm. on Oceanography
of the House Comm. on Merchant Marine and Fisheries, 94th Cong., lst Sess.,
Ser. No. 94-10, p. 41, (1975).

67. Id., P. 42.

68. Id., p. 44.

69. Hearings Before the Subcomm. on Oceans and Atmosphere of the Senate
Committee on Commerce, 94th Cong., lst Sess., Ser. No. 94-32, p. 44-45,
(1974).

70. Id.p p. 53.

71. Id.

72. Id., p. 34; House Hearings, supra note'66, p. 34.

73. Id., pp. 53-54.

74. CUNARD S.S. v. MELLON, 262 U.S. 101 (1923).

75* Pub. L, 94-61-

76. Oversight Hearings of the Marine Protection, Research, and Sanctuaries
Act of 1972, Before the Subcomm. on Fisheries and WiLdLife Conservation
and the Environment and the Subcomm. on Oceanography of the House Comm.
on Merchant Marine and Fisheries, 94th Cong., 2d Sess., Ser. No. 94-25,
p. 200 (1976).

77. Id.

IV. ImpLemen'tation of the LegisLative Response: NOAA PoLicy
and Strategy

Just as significant as the LegisLative response in estabLishing the Marine

Sanctuaries Program is a consideration of the poLicies and strategies empLoyed

by the NationaL Oceanic and Atmospheric Administration (NOW in carrying out

the LegisLative intent. NOAA's poLicy and strategy is examined in some detaiL

in this chapter so that a cLear need can be demonstrated for cLosing the circLe

between expressed poLicy and how the program has actuaLLy evoLved,. In this

manner, the potentiaL of the program as expressed in 'NOAA poLicy can be better

refLected by NOAA action. In addition, this section wiLL focus on existing and

nominated marine sanctuaries as a means for evaLuating what actions have been

accompLished since the program was initiated. SimiLar programs, incLuding the

fecleraL Estuarine Sanctuary Program, state sanctuary-type programs, and inter-

nationaL sanctuary-type programs are preLiminariLy examined to determine how they

may be coordinated with the marine sanctuaries program. FinaLLy, this section

examines NOAA's effectiveness in impLementing existing poLicies and strategies

of the Marine Santuaries Program.

A. Existing PoLicies and GoaLs of the Marine Sanctuaries Program

1. PoLicy Statements

The most recent annuaL report to Congress on the impLementation of TitLe

III of the Marine Protection, Research, and Sanctuaries Act provides perhaps

the best starting point for considering current administrative poLicies in im-

pLementing the Marine Sanctuaries Program. In reemphasizing the criticaL need

for a contin'u-ed active Marine Sanctuaries Program, this NOAA report states

that:

'Ctlrends over the Last few years have made the marine
sanctuaries program even more important now than in
1972 when the LegisLation was passed. RecentLy, the
United States has been Looking toward the sea and our
marine resources with increased appreciation and con-
cern. ExampLes of this interest are numerous. The
200-miLe extended jurisdiction has been passed and
negotiations continue on the Law of the Sea. OiL,
gas, and ocean mining expLoration and production on
the Outer ContinentaL SheLf are now, more than ever
before, within America's technoLogicaL grasp. The
on-shore impact of these activities is coming under
increasing scrutiny, as is the siting of power faciL-
ities and deepwater ports. The controversy and rivaLry
between foreign and domestic fLeets, and depLetion of
our fishing resources have had far-reaching effects."/l

In response to these trends, the Report adds that:

"[t3he cumuLative impacts of these marine oriented
events have made it imperative NOAA insure the requi-
site emphasis is pLaced on identifying, categorizing,
and protecting or utiLizing certain resources under
the purview of the marine sanctuaries Law and regu-
Lations."/2

In testimony before Congress in 1976, Robert Knecht, Associate Adminis-

trator for CoastaL Zone Management expressed the nationaL importance of the

Marine Sanctuaries Program by pLacing it in the context of the increasing pres-

sures on marine resources. Responding to a question posed by Conqressman John

Murphy, Chairman of the House Subcommittee on Oceanography, as %to whether the

need for the Marine Sanctuaries Program had increased since its estabLishment

in 1972, Mr. Knecht answe-r-ed:

It appears very LikeLy that we are about to extend our
controL over the economic resources of the oceans that
border the United States out to 200 miLes. As you know,
Congress is weLL advanced in taking that step. This

WiLL bring under the purview of the United States a
vast amount of additionaL ocean, and the resources
contained therein. Marine mining is under active
consideration, and wi LL not onLy invoLve manganese
noduLes, but sand and graveL as weLL. Third, energy
pressures have increased dramaticaLLy, and many of
them are focused on the shore Land.

These together are deveLopment-extraction-expLoitation
activities. It is timeLy, perhaps even overdue, that
we put as much attention on the other side of that
equation, that is to begin to set aside areas for con-
servation, protection, and Long-term use for other
purposes, such as recreation, research, esthetic en-
joyment. As we move to cleveLop our ocean coastaL re-
sources, we have to make a simiLar move to study, se-
Lect, and designate those-areas that need conservation
and protection. I think the act is more important to-
day by a Long shot than it was in 1972, Mr. Chairman./3

Mr. Knecht aLso noted that NOAA was aware of the Marine Sanctuaries Program's

potentiaL overaLL roLe in the management of marine resources:

We beLieve the marine sanctuaries titLe of the Marine
Protection, Research and Sanctuaries Act is a signi-
ficant part of [the Nation's totaL responsibiLity to
the oceans, since it canJ provide for baLanced, weLL-
managed, environmentaLLy sound use of the nation's
marine resources./4

2. CLassifications of Marine Sanctuaries

With the defined programmatic objective of "Cplreserving, restoring or

enhancing areas for their conservationaL, recreationaL, ecoLogicaL, research,

or esthetic vaLues," NOAAls reguLations impLementing TitLe III of the Marine

Protection, Research, and Sanctuaries Act divide marine sanctuaries into five
6
cLassifications. The reguLations aLso stipuLate that muLtipLe uses within

each cLassification are aLLowed to the extent that they are compatibLe with
7
the primary purpose(s) for which the sanctuary was estabLished. The five

cLassification estabLished by the regu Lations are:
io (a) Habitat areas -- These areas are estabLished for "...the preserva-
tion, protection, and management of essentiaL or speciaLized habitats repre-
8
sentative of important marine systems." In these areas, Dr. Robert Kifer,

former Marine Sanctuaries Coordinator, has expLaine.d that the "management

emphasis wiLL be on protecting the weLL-being of the Living resources of the

area so as to maintain a heaLthy, continuous, baLanced popuLation of the Liv-

ing resources .... In essence, the primary purpose is to protect the habitat

and its resources so that desired uses can continue."

(b) Species areas --,These consist of areas designated for "...the con-
10 .
servation of genetic resources." Dr. Kifer emphasizes that "the distinction

between a habitat and a species area is that in the Latter the focus wiLL be

on protecting seLected spec ies during part or aLL of its Life cycLei The man-

agement emphasis wiLL be on maintaining sufficient genetic resources to insure

continued reproduction of a species at a LeveL sufficient to maintain the pop-

uLation in its ecoLogicaL niche over its present geographic range."

research and education in support of management programs carried out for the

purpose .of the titLe." In order to better manage the nation's ocean resources,

Dr. Kifer states that "information and understanding of the ocean and its muL-

tipLe resources are needed. A research sanctuary provides the opportunity to

Learn the naturaL ecoLogicaL baseLines so as to ascertain the impact of a given
13' -
management decision.11 "In generaL," Dr. Kifer notes, "the areas wiLL be Cho-

sen according to the biota they support, to incLude representative sampLes of

the significant ecosystems in the nation, and according to the history of re-

search carrie-8 out in the area as weL L." 14

(d) RecreationaL and esthetic areas -- These areas are designated
15
based on their recreationaL or esthetic vaLues." Dr. Kifer adds that "the

centraL purpose of the marine sanctuary program is to augment the existing

parks, nationaL seashores, or their equivaLents by insuring that a portion of

the seascape is protected to provide an experience equaL to that obtained on
16
Land."

(e) Unique areas -- These are areas estabLished "...to protect unique or
17
nearLy one of a kind geoLogicaL, oceanographic, or Living resource features."

According to Dr. Kifer, "the unique object may have historic, cuLturaL, econo-
18
mic, physicaL, chemicaL or bioLogicaL vaLue or use."

3. The Designation Process

The process by which marine sanctuaries are designated is cletaiLed in the

impLementing reguLations. The reguLations provide that "the nomination of a

given marine area for consideration as a designated marine sanctuary may resuLt

from studies carried out by FecleraL, State, or LocaL officiaLs or from any other
1 19
interested persons." In other words, the. program offers the opportunity for

any individuaL, organization, or governmentaL body to nomimate an area for con-

sideration as a marine sanctuary. Each nomination is required to contain a

generaL description of the site incLuding the:

(1) purpose for which the nomination is made;
(2) geographic coordtnates of the site;
(3) pLant and animaL Life in the area;
(4) geoLogicaL characteristics of the area; and
(5) present and prospective uses and impacts on the
area an cl resources thereof./20

A nomination for a research area requires certain additionaL information.

This information is to incLude "a specific scientific justification, a state-

ment.of how the research wiLL aid in management decision, and a history of
21
prior research carried out in the area."

Aft er NOAA receives a marine sanctuary nomination, the invoLved state(s)

and other federaL agencies are notified of th-e nomination. These entities are

requested to participate in a preLiminary review of the feasibiLity of the nom-

ination. If a preLiminary review indicates that designation is feasibLe, a

more in-depth study of the area is made. Moreover, an impact anaLysis wiLL be

prepared "of how the sanctuary wiLL impact on the present and potentiaL uses,

and how these uses wiLL impact on the primary purpose for which the sanctuary
22
is being considered."

From the factuaL information and the impact anaLysis, a draft environmen-

taL impact statement, incLuding proposed reguLations, is prepared and made

avaiLabLe for pubLic review and comment.

Due to the broad pubLic impact of marine sanctuary designation, pubLic

particip ation is an essentiaL eLement of the nomination process. Once a nom-

ination has been received, at Least three opportunities for pubLic invoLvement

exist:

1. When a nomination has been determined feasibLe, a press reLease
wiLL be issued by the NOAA announcing the nomination and noting that
a draft environmentat-impact statement is being prepared. Informa-
tion and ideas are soLicited from the pubLic.

2. When the CounciLon EnvironmentaL QuaLity pubLishes notice of
the draft EIS in the FederaL Register, NOAA wiLL simuLtaneousLy
issue a press statement.

3. a pubLic hearing is required in the area most affected by the
nomination. These hearings wiLL be heLd in the areas most directLy
affected and are to take pLace no earLier than 30 days after the
pubLic notice./23

Prior to designation of a sanctuary, consuLtation between affected Fed-

eraL agencies and the state or states invoLved is required to provide an op-

portunity for review and comment on a specific proposed designation (see pp. 38-40

for a more detaiLed discussion of this consuLtation process).

CLearLy, one of the orincioaL issues invoLved in the desiqnation Drocess

is the identification of those activities the reguLations wiLL controL and to

what extent. Section 302(f) of the MPRSA stipuLates that "...necessary and

reasonabLe reguLations to controL any activities permitted within the designated

sanctuary..." be issued after a sanctuary has been designated. (See p. 39 for

a further discussion of section 302(f). what is particuLarLy important is that

the reguLations can be taiLored to fit the needs of each individuaL sanctuary

and the various types of activities that wiLL be aLLowed or prohibited, based

upon this need.

B. Existing and Nominated Marine Sanctuaries

1. Existing Sanctuaries

There are presentLy two designated marine sanctuaries. The-site of the

wreck of the MONITOR off the coast of North CaroLina, was designated as a ma-

rine sanctuary on January 30 1975. The second marine sanctuary, the Key Largo

CoraL Reef, was designated on December 18, 1975. As discussed in Chapter III

(pp. 40-49 ), no funds for the Marine Sanctuaries Program have been appropriated.

It is significant to note, then, that two sanctuaries have been designated

and are being managed without any specificaLLy appropriated funds. The foL-

Lowing discussion reviews these sanctuaries and their reguLations.

a. MONITOR Marine Sanctuary

FinaL reguLations promuLgated for the MONITOR Marine Sanctuary were issued
on May 19, 1975. 24 These reguLations specificaLLy prohibit activities (here-

after, referred to as prohibited activities) which wouLd adverseLy affect the
25
sanctuary. The reguLations do, however, provide a process where these pro-

hibited activities may be permitted by the Administrator under certain circum-
26
stances. Activities approved by the Administrator can onLy be conducted

with "...the condition that any information and/or artifacts obtained in the
27
research shaLL be made avaiLabLe to the pubLic."

Two permits to conduct research on the MONITOR we.re denied because the

researchers couLd not ensure reasonabLe integrity of the site. On June 29,
1976, a permit 28 was finaLLy issued to the Monitor Res earch and Recovery Founda-

tion, Inc., to conduct scientific research within the MONITOR marine sanctuary.

b. Key Largo CoraL Reef Marine Sanctuary

29
By ProcLamation No. 3339 and pursuant to the authority vested in the
Pres'ident by Section 12(a) of the Outer ContinentaL SheLf Lands Act, 30 Presi-

dent Eisenhower withdrew* the Key Largo CoraL Reef from disposition from Leasing

and estabLished the Key Largo CoraL Reef Preserve On March 17, 1960. (See aLso

chapter V of this study concerning the Outer ContinentaL SheLf Lands Act, pp.

89-91). The onLy other area which has been permanentLy withdrawn from dispo.- 31
sition is the Santa Barbara EcoLogicaL Preserve and Buffer Zone in CaLifornia.

The procLamation estabLishing the Key Largo Preserve requested the Secre-

tary of the Interior "...to prescribe ruLes and reguLations governing the pro-

tection and conservation of the coraL and other mineraL resources in this area

and to cooperate with the State of FLorida and its conservation agencies in
32
the preservation of the reef." WhiLe the estabLishment of the preserve en-

sured that the area wouLd not be Leased for mineraL expLoration, it did not

comprehensiveLy assure the reef's protection. ConsequentLy, the area was nom-

inated and subsequentLy estabLished as the nation's second marine sanctuary.

The designation of Key Largo CoraL Reef as a marine sanctuary not onLy estabLished

a "Living" nationaL monument by decLaring that destruction of the reef wouLd

no Longer be toLerated, but aLso guaranteed that a portion of the re ef wouLd
33
be preserved for scientific study.

The purpose of the sanctuary as expressed in the finaL environmentaL im-

pact statement is:

to protect and conserve the coraL and coraL reef eco-
systems, to reguLate uses thereof, to insure the heaLth
and weLL-being of the coraL, and associated fLora and
fauna, and to make avaiLabLe the continuaL opportunity
for the esthetic and recreationaL enjoyment which heaLthy
reefs afford the American peopLe./34

35
Interim reguLations -for the Key Largo CoraL Reef Marine Sanctuary were

pubLished on January 16, 1976, and finaL reguLations are to be promuLgated
36
during the summer of 1977.

The present and future permissibLe uses of the sanctuary incLude "recrea-

tionaL boating and fishing, snorkeLing and scuba diving, commerciaL transpor t,
37
fisheries activities and scientific endeavors." Activities aLLowed within

the sanctuary wiLL be subject to certain ruLes and reguLations designed to

provide for maximum pubLic u se of the area consistent with the primary purpose
38
for which the sanctuary was estabLished. The reguLations aLso cletaiL the

types of activities prohibited within the sanctuary.

SimiLar to the requ Lations concerning the MONITOR Marine Sanctuary, the

reguLations impLementing the Key Largo CoraL Reef Marine Sanctuary provide that

any person or activity may conduct any of the prohibited activities if the

... person or entity is in possession of a vaLid perm it issued by the Adminis-
39
trator of NOAA authorizing the conduct of such activity." As in the case of

the MONITOR Marine Sanctuary, a permit for research reLated to the sanctuary

can onLy be granted if it contains "...the condition that any information ob-
40
tained in the research shaLL be made avaiLabLe to the pubLi.c."

By written cooperative agreement with NOAA, the Key Largo Sanctuary is
41
administered by the FLoricla Department of NaturaL Resources (DIN,R). In es-

sence, the FLoricla DNR serves as the on-site manager of the sanctuary. DNR is

assisted in the administration of the sanctuary by an advisory board. The

board consists of representatives of the NationaL Park Service, the U. S. Coast

Guard, the Department -of Justice, and the NationaL Marine Fisheries Service;

the State of FLoricla's Division of Marine Resources, its Division of Marine Law

Enforcement, and its Department of EnvirohmentaL ReguLations; a LocaL citizens
association; and an association of dive boat captains. 42

WhiLe the impLementation and administration of the ruLes and reguLations

governing the sanctuary is the responsibiLity of the State of FLoricla's DNR
43
(acting as NOAA's contract manager), the U. S. Coast Guard has the respon-

sibiLity for surveiLLance and enforcement of the ruLes and reguLations pro-
44
muLgated for the Key Largo Marine Sanctuary.

2. Nominated Sanctuaries

At present, there are three nominations for marine sanctuaries design a-

tion. The first area, the Looe Key Reef in the FLoricla Keys, was nominated
on November 23, 1976, by the FLorida Keys Ci'tizens CoaLition, primariLy for
45
the protection of coraL.

Before the Looe Key Reef nomination can receive designation, however,

information is needed in order to fuLfiLL the requirements of OCZM's reguLa-
46
tions. In this regard, a proposaL to inventory the resources of Looe Key

Reef has recentLy been submitted to OCZM by Drs. Arthur H. Weiner and Arnfried
Antonius. 47 If this inventory provides the additionaL information required to

satisfy the reguLations, the assimiLated information wiLL be used in preparing

a draft EIS for the proposed designation.

The second area under consideration encompasses the waters and associated

fLora and fauna of the area known as Cape Lookout Bight and Shoats, off the

North CaroLina coast. These waters are directLy adjacent to the proposed Cape
-48
Lookout NationaL Seashore.

The area is being nominated under two of the possibLe marine sanctuary

classifications: (l)-recreationaL and esthetic, and (2) unique. Present rec-

reationaL uses of the area incLude: recreationaL boating, saiLing, snorkeLing
49
and skin diving activities, swimming, and fishing. The esthetic and unique

aspects of the area are eLoquentLy summarized in the foLLowing quotation:

..... Like a neckLace of precious jeweLs the Outer Banks
encircLe the coast of North CaroLina; a Living and dy-
namic system of sand that stretches precariousLy sea-
ward into the AtLantic and returns. The Outer Banks
are unique unto themseLves; however, it is Cape Lookout
that is perhaps the most unique. GeoLogicaLLy, no other
cape possesses its characte.ristics, but its uniqueness
Lies in its other attributes as weLL. It is an area
that speaks to Nature's vissicitudes as weLL as her
dramatic beauty. Quite simpLy, it is a pLace where
earth, sky, and water are free to meet with few inter-
ruptions ..... /50

one reason for nominating the area is that designation as a marine sanc-

tuary wouLd augment existing recreationaL environments, i.e.0 parks and the

nationaL seashore, by ensuring that a portion of the seascape wouLd aLso be
protected. 51 According to Dr. Robert Kifer, former Marine Sanctuaries Coordi-

nator, the protection of a portion of the seascape is one of the centraL pur-

poses of the Marine Sanctuary Program (see p. 59).

The third area presentLy being considered, the proposed Puget Sound KiLLer

WhaLe Marine Sanctuary off the coast of the state of Washington, was proposed

by Senator Magnuson. As its name impLies, one of the funclamentaL purposes for

nominating this area is to provide protection for kiLLer whaLes.

One of the primary factors infLuencing Senator's Magnuson's nomination
was adverse pubLic reaction to the capture of six kiLLer whaLes in Puget Sound
on March 6, 1976. The whaLes were captured by an aquarium and dispLay corpora-

tion. ALtho'ugh the c*orporation heLd the proper permits issued by 'the Secre-
tary of Commerce [pursuant to the Marine MammaL Protection Act] for the taking

of marine mammaLs for dispLay purposes, the pubLic demanded the reLease of
52
the whaLes. Three of the whaLes subsequentLy escaped and the others were
reLeased. 53 OCZM is presentLy preparing a draft EIS on the proposed designa-

tion. When compLeted, the EIS wiLL be avaiLabLe for review and comment by aLL

invoLved state and fecleraL agencies and inter ested members of the pubLic.

It shouLd again be noted that the costs of processing these nominations,

As weLL as the operationaL costs of the existing designations, has been borne

by OCZM without the benefit of specificaLLy appropriated funds.

C. CompLementary Programs

CompLementary programs, particuLarLy the Estuarine Sanctuaries Program

estabLished pursuant to Section 315 of the amended CoastaL Zone Management Act.

(CZMA), can be very important to the overatL effectiveness and comprehensive-

ness of the Marine Sanctuaries Program. This fact is emphasized in the regu-.

Lations impLementing the program, which state that "it is anticipated that the

Marine Sanctuaries Program wiLL be conducted in cLose cooperation with [the
54
Estuarine Sanctuaries Program]."

In a simiLar manner, the reguLations impLementing the estua-rine sanctu-

aries program provide that: "Et3he estuarine sanctuaries program wiLL be con-

clucted in cLose cooperation with the marine sanctuaries program.... It is

anticipated that the Secretary (of Commerce) on occasion may estabLish marine

sanctuaries to compLement the designation by States of estuarine sanctuaries,

55
where they may be mutuaLLy beneficiaL."

1. The Estuarine Sanctuaries Program -- Comparison with
Marine Sanctuaries

The estabLishment of both of these programs was authorized in 1972 with

the passage of The CoastaL Zone Management Act (Estuarine Sanctuaries) and

the Marine Protection, Research, and Sanctuaries Act (Marine Sanctuaries).

ALthough they may appear quite simiLar at first, a cLoser examination reveaLs

severaL distinct features. The most obvious distinction is that they were

estabLished by two different Laws and were estabLished to achieve different

goaLs and purposes. Section 315 of the CZMA authorizes the Secretary of Com-

merce to make avaiLabLe to coastaL states and territories, grants of up to

50% of the cost for the purpose of "acquiring, deveLoping, or operating estu-
arine sanctuaries." 56 An "estuarine sanctuary" is defined as:

Ila research area, which may incLude any part or aLL
of an estuary, adjoining transitionaL areas, and ad-
jacent upLands, constituting to the extent feasibLe,
a naturaL unit set aside to provide scientists and
students the-opportunity to examine over a period of
time the ecoLogicaL reLationships within the area./57

The impLementing reguLations stipuLate that "the primary use of estuarine

sanctuaries shaLL be for research and educationaL purposes, especiaLLy to pro-

vide some of the information essentiaL to coastaL zone management decision-
making." 58 Present objectives and uses of the estuarine sanctua ry program

incLude:

(1) "to gain a thorough understanding of the ecoLogicaL
reLationship within the estuarine environment;

(2) to make baseLine ecoLogicaL measurements;

(3) to monitor significant or vitaL changes in the estuarine
environment;

(4) to assess the affects of man's stresses on the ecosystems
and to forecast and mitigate possibLe deterioration from
human activities; and

(5) to provide a vehicLe for increasing pubLic knowLedge and
a'wareness of the compLex nature of estuarine systems,
their vaLues and benefits to man and nature, and the prob-
Lems which confront them."/59

Both the LegisLative history of former section 312 (now section 315) of
the CZMA and the estuarine sanctuary guideLines 60 cLearLy indicate that the

intent of the estuarine sanctuary program shaLL be:

to preserve representative estuarine areas so that they
may provide Long-term (virtuaLLy permanent) scientific
and educationaL use.... In an era of rapiclLy degrading
estuarine environments, the estuarine sanctuary program
wiLL ensure that a representative series of naturaL
areas wiLL be avaiLabLe for scientific or educationaL
uses .... Any use, research or otherwise, which wouLd
destroy or detract from the naturaL system wouLd be
inappropriate under this program."/61

In contrast to the basic goaLs of the Estuarine Sanctuaries Program, which

emphasize preserving representative ecosystems for research, the goaLs of the

Marine Sanctuaries Program are more broad-based. The funclamentaL goaL of the

Marine Sanctuaries Program is the preservation or restoration of designated

areas for their conservation, recreation, and esthetic vaLues, as weLL at pro-
62
moting research. Thus, in addition to th e- obvious cliffe rences 'in geographic

scope of the two programs, the primary difference in terms of their goaLs is

that t.he estuarine program seeks Long-term protection of representative ecosys-

tems for research and study, whiLe the marine program seeks the preservation of

areas based on their existing and potentiaL vaLues, and the recognition that

the preserva@ion of these vaLues is vitaL to the integrity of marine resources.

The manner in which the designation process is initiated is aLso differ-

ent for the two programs. The process of designating an estuarine sanctuary

is initiated by a state's request for a grant to estabLish a sanctuary. The

designation of marine sanctuaries is initiated through NOAA action or nomina-

tion from any other individuaL, organization, state or fecleraL agency. The

reguLations governing the Estuarine Sanctuary Program state that "Ci3t is in

tended that estuarine sanctuaries not be chosen at random, but shouLd refLect

regionaL differentiation and a variety of ecosystems so as to cover aLL signi-
63
ficant variations." To ensure adequate representation of aLL estuarine types,

a biogeographic cLassification scheme has been devised for the Estuarine Sanc-

tuary Program. (See Appendix V.

The geographic areas intended to be covered by the two programs are aLso

distinct. Estuarine sanctuaries may be Located in estuarine water bodies and

adjacent waters, wetLands and upLands to the extent that they constitute a na-

turaL ecoLogicaL unit. Marine sanctuaries may be Located in areas of the ocean

waters, as far seaward as the outer edge of the ContinentaL SheLf, as defined
64
in the Convention of the ContinentaL SheLf, of other coastaL waters where the

tide ebbs and fLows, or of the Great Lakes and their connecting waters.

The differences in the nature and scope of the two programs necessitate

different management pract-ices. Estuarine sanctuaries are owned and managed

by the state. M arine sanctuaries, on the other hand, may be managed by the

state, by NOAA, or cooperativeLy through various types of agreements with the

state(s) and'-other fecleraL agencies (such as in the Key Largo CoraL Reef Pla-
rine Sanctuary (see pp. 62-65), as weLL as by private, municipaL, institu-

tionaL, or LocaL entities. Enforcement of the reguLations estabLished for the

two types of programs requires distinct techniques. Estuarine sanctuaries can

reLy primariLy on tand-based monitoring techniques, whiLe marine sanctuaries

cannot.

Another key distinction between the programs concern funding. The funding

for estuarine sanctuaries is based on a 50/50 match between the fecleraL govern-

ment and the state for the acquisition, cleveLopment, and operation of a sanc-

tuary. Funding for marine sanctuaries is entireLy fecleraL and incLudes funds

for acquisition, cleveLopment, and operation. As noted previousLy, however, no

funds have been appropriated for the program to date.

Despite their differences, or perhaps because of them, the Marine Sanctu-

aries and the Estuarine Sanctuaries Programs can effectiveLy compLement each

other. Mechanisms for achieving a more compLementary overaLL sanctuary program

wiLL be discussed in greater cletaiL in Phase II of this study.

2. SimiLar State Programs

SeveraL states have programs simiLar to the federaL Marine Sanctuaries Pro-

gram in that they protect research, recreation, aesthetic, habita't or unique

areas. FLoricla and Massachusetts are two of the prime exampLes. WhiLe the state

data base is to be greatLy expanded in Phases II and III of this study, there

does appear to be a trend among severaL of !'he coastaL states with respect to

sanctuary-type programs. Such states are using these types of programs to fuL-

65
fi.LL the geographic area of particuLar concern requirements in formuLating.
their coastaL management pLan. For instance, FLoricla is empLoying its aquatic
66
preserves program to heLp fuLfiLL these requirements. Other states are pro-

tecting fish beds and spawning grounds as part of fuLfiLLing the areas of par-
67
ticuLar concern requirements.

a. FLoricla

FLoricla has two programs of importance to the Marine Sanctuaries Program.

The first is the John Pennekamp CoraL Reef State Park adjacent to Key Largo.

The park, designed to protect coraL and to provide for underwater recreation,

has been coordinated with the Key Largo CoraL Reef Marine Sanctuary. (See pp.

62-65). The second program is the state's system of aquatic preserves. An

aquatic preserve is defined as-"an exceptionaL area of submerged Lands and its

associated waters set aside for maintaining essentiaLLy in its naturaL or ex-
isting condition." 68 The program recognizes three types of preserves: bio-

LogicaL, aesthetic, and scientific. Thirty-one aquatic preserves and their

boundaries are in cLuded in the Act. A s noted above, presentLy the program is

being used in partiaL fuLfiLLment of the requirements of the state coastaL man-

agement pLan.

b. Massachusetts

Massachusetts has five distinct Ocean,Sanctuaries estabLish ed by five Leg-

isLative enactments. Each sanctuary has sLightLy different uses, conditions,

and criteria. The s-tarte, however, is considering the feasibiLity of consoLi-

dating the five programs into a singLe sanctuary program. As they presentLy

exist, the sanctuaries.cover the entire coastLine out to the three miLe Limit,

with the exception of two narrow Lanes around the Greater Boston and FaLL Ri ver

areas. A very important fact about the Massachusetts sanctuaries is that they

exert compLete authority over the water coLumn and seabed, and precLude the

siting of any OCS faciLities within the sanctuaries, incLuding pipeLines. It

is possibLe, however, that the Massachusetts Energy FaciLities Siting CounciL,

which in effect has override authority over aLL energy siting questions On-

cLuding override of the state's coastaL management program) couLd aLLow the

siting of OCS reLated faciLities within a sanctuary.

It is significant to note that in addition to seeking ways to better co-

ordinate the existing five state ocean sanctuaries, Massachusetts is beginning

to Look more carefuLLy at means to coordinate the ocean sanctuaries program

with its coastaL management program. There aLso appears to be an active inter-

est on the part of the state in the cleveLopment of mechanisms to coordinate
their ocean sanctuaries programs with the federaL Marine Sanctuary'Program. 70

More in-depth anaLysis of state sanctuary-type programs wiLL take pLace

in Phase II of this study. Specific means by which such state programs are

and can be coordinated with both-the state's coastaL zone management program

and the Marine Sanctuary Program wiLL be investigated.

3. internationaL Marine Sanctuary-Type Programs

The internationaL recognition of the need for marine sanctuaries is out-

Lined in Appendix B.

D. Effectiveness/AccompLishments of the Marine Sanctuaries Program

This brief revi ew of NOAA's poLicy with respect to the Marine Sanctuary

Program and the previous section describing TitLe III of the MPRSA indicates

that the program has a significant potentiaL for providing a baLance between

the various uses of marine resources. In its five years existence, the pro-

gram has made severaL accompLishments, notabLy the designation of two marine

sanctuaries -- the MONITOR and Key Largo CoraL Reef. WhiLe it is true that

both of these sanctuaries have been designated and are being managed without

funds appropriated to.run the program, the question that remains is -- has

enough been accompLished? Robert Knecht's response to a simiLar question by

Congressman John M. Murphy, Chairman of the House Subcommitte e on Oceanography,

provides insight into the answer to the question. Referring to the fact that

whiLe Congress had originaLLy authorized 36 miLLion cloLLars over 4 years for

the Marine Sanctuaries Program, Congressman Murphy asked if the program wouLd
71
be more effectiveLy impLemented if funds were specificaLLy appropriated for it.

In repLy, Mr. Knecht stated:

Yes, I wouLd have to answer that in the affirmative....
The activity we have been abLe to carry on in the Marine
Sanctuaries area has been Limited because of the Lack of
specificaLLy appropriated funds .... I think where the
effort has suffered has been in the area of cleveLoping
a management program framework. Without such a frame-
work, we have not been abLe to appLy the device (the
marine sanctuaries program) as aggressiveLy as perhaps
the Congress intended, and I feeL the probLems now re-
quire."/72
In discussing the pro'gramls future, Mr. Knecht noted that:

"...we wiLL begin work on the cleveLopment of a compre-
hensive programmatic framework for the marine sanctu-

aries as a whoLe. Such a framework wiLL be usefuL in
ascertaining the merits of unsoLicited nominations as
weLL as directing a fecleraLLy initiated program."/73

The Center for NaturaL Areas' on-going study is part of the comprehensive

framework that Mr. Knecht refers to. This comprehensive potentiaLLy four-

phased study can pLay a Large roLe in heLping to ensure that the Marine Sanc-

tuaries Program reaLizes its potentiaL.

In order to ascertain more cLearLy the existing need for a federaL Marine

Sanctuaries Program, however, it is necessary to carefuLLy compare the congres-

sionaL mandates given to that program with those assigned to other potentiaLLy

compLementary programs, both on the fecleraL and state LeveLs. The foLLowing

chapter of this study is directed to this assessment.

Footnotes --Chapter IV

1. United States Department of Commerce "Report to the Congress on Contin-
ued ImpLementation of TitLe III of the Marine Protection, Research, and
Sanctuaries Act of 1972," JuLy 1975 through June 1976, p. 1.

2. Id.

3. Robert Knecht, Associate Administrator for CoastaL Zone Management, NOAA,
Department of Commerce, in OCEAN DUMPING -- PART 2, JOINT HEARINGS BEFORE
THE SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION AND THE ENVIRON-
MENT, AND THE SUBCOMMITTEE ON OCEANOGRAPHY OF THE HOUSE COMMITTEE ON
MERCHANT MARINE AND FISHERIES, 94th Cong., 2d Sess., Ser. No. 94-25 (1976)
p. 200.

4. Id., P. 193.

5- 15 C.F.R., s. 922.2.

6. Id., s. 922.10

7. Id.

8. Id., s. 922.10(a).

9. Robert R Kifer. "NOAA's Marine Sanctuary Program," 2 COASTAL ZONE
MANAGEMENT JOURNAL, 179-180, (1975).

10. 15 C.F.R. s. 922.10(b).

11. Kifer, supra note-9.

12. 15 C.F.R. s. 922.10(c)(1).

13. Kifer, supra note 9.

14. Id.

15. 15 C.F.R. s. 922.10(d).

16. Kifer, supra note 9.

17. 15 C.F.R. s. 922.10(a).

18. Kifer, supra note 9.

19. 15 C.F.R. s. 922.20(a).

20. Id., s. 922.20(b)(1)(i)-(v).

21. Id., s. 922.20(b)(2).

22. Id., s. 922.21(c).

23. Kifer, supra note 9, p. 182.

24. 15 C.F.R. s. 924.

25. 15 C.F.R. s. 924.3

The foLLowing activities are prohibited within the sanctuary;

(a) anchoring in any manner, stopping, remaining, or
drifting without power at any time;
(b) any type of subsurface saLvage or recovery opera-
. tion;
(c) any type of diving,' whether by an individuaL or
by a submersibLe;
(d), Lowering beLow the surface of the water any grap-
pLing, suction, conveyor, dredging or wrecking
device;
(e) detonation beLow the surface of the water of any
expLosive or expLosive mechanism;
(f) seabed driLLing or coring;
(g) Lowering, Laying, positioning or raising any type
of seabed cabLe or cabLe-Laying device;
(h) trawLing; or
(i) discharging waste materiaL into the water in vio-
Lation of any FecleraL statute or reguLation.

26. The reguLations provide that the prohibited activities (noted in 15 C.F.R.
Section 924.3) may be conducted by any person or entity if the activity
is either: "(1) for the purpose of research reLated to the MONITOR, or
(2) pertains to saLvage or recovery operations in connection with an air
or marine casuaLty" and the "...person or entity is in possession of a
vaLid permit issued by the Administrator authorizing the conduct of such
activity." In addition, the reguLations recognize that in certain emer-
gency situations, there may not be time to secure a permit. Thus, the
reguLations provide that "...no permit is required for the doncluct of any
activity immediateLy and urgentLy necessary for the protection of Life,
property, or the.environment."

27. 15 C.F.R. s. 924.6(e).

28. As required by the reguLations C15 C.F.R. s. 924.6(d)], OCZM has sought
the advice and comments of the Advisory CounciL on Historic Preservation
(hereafter, Advisory CounciD. Since the Advisory CounciL feLt that the

issuance of the permit wouLd cause adverse impacts on the MONITOR, OCZM
and the Advisory CounciL have worked out a "Memorandum of Agreement"
(August 25, 1976) to mitigage these impacts. The agreements contain
the stipuLation that "(t)he Office of CoastaL Zone Management wiLL can-
suLt with Advisory CounciL on Historic Preservation pursuant to 36 C.F.R.J*
Part 800, prior to a finaL decision on the disposition and proposed treat-
ment of any artifacts that may be retrieved as a resuLt of the activities
of the expedition." Both parties feeL that this agreement wouLd "satis-
factoriLy mitigate any adverse effects on the CMONITOR3."

29. ProcLamation No. 3339, 25 FED. REG. 2352, (1960).

30. 43 U.S.C. s. 1331-1343.

31. PubLic Land Order, #45-87, 34 FED. REG. 5655 (1969).

32. ProcLamation No. 3339, 25 FED. REG. 2352 (1960).

33. United States Department of Commerce, "Report to Congress on the Continued
ImpLementation of TitLe III of the Marine Protection, Research and Sanc-
tuaries Act of 1972," JuLy 1975 through June 1976, p. 2.

34. FEISe KEY LARGO CORAL REEF MARINE SANCTUARYe p. 7, (1976).

35. 15 C.F.R., s. 929 (1976).

36. Conversation with Commander PhiLLip C. Johnson, OCZM, (March 3. 1977).

37. 15 C.F.R. s. 929.4.

38. Id., s. 929.4(a)-(k). Prohibited activities incLucle, but are not Limited
to:

RemovaL or destruction of naturaL features and marine
Life;
discharge of refuse and poLLuting substances;
dredging, fiLLing, excavating and buiLding activities;
clestructione defacement, removaL. etc. of archaeoLogicaL
and historic substances; I
defacement, dispLacement, removaL, etc., of markers;.
certain specified activities reLating to fishing;
disturbing of coraL, etc., whiLe scuba diving and skin
diving;
certain speci-fled activities associated with the operation
of motor craft;
certain specified activities reLated to photography;
prohibition of advertising or pubLicity; and
use or possession of expLosives and dangerous weapons.

39. 15 C.F.R. s. 929.-6. AdditionaLLy, the reguLations recognize that in
certain emergency situations, there may not be time for a permit.
Thus, the reguLations provide that "...no permit is required for the
conduct of any activity immediateLy and urgentLy necessary for the
protection of Life, property, or the environment."

40. Id., s. 929.7(e).

41. Cooperative Agreement No. 04-6-158-44116 for the "Management of the
Key Largo CoraL Reef Marine Sanctuary, between the U. S. Department
of Commercei NOAA, and the FLorida Department of NaturaL Resources."
Agreement runs from JuLy 1, 1976 to June 30, 1977.

42. FEIS, KEY LARGO CORAL REEF MARINE SANCTUARY, p. 7, (1976).

43. 14 U.S.C. s. 89, gives the Coast Guard generaL authority to "...make
inquiries, examinations, inspections, searches, seizures and arrests
upon the high seas and waters over which the United States has juris-
diction, for the prevention, detection, and suppression of vioLations
of the Laws of the United States."

4 4. FEIS, KEY LARGO CORAL REEF MARINE SANCTUARY, p. 19, (1976).

45. A. Weiner, Ph. D. and A. Antonius, Ph. D., LOOE KEY REEF RESOURCE INVEN-
TORY, March 8, 1977. (Submitted to OCZM as part of the nomination of
Looe Key Reef as a marine sanctuary), p. 2. The need to protect coraL
reefs has been recentLy expressed in severaL reports discussing the
deteriorating environmentaL conditions and direct man-induced damage to
coraL reef communities. Most notabLe of these reports are: A. Antonius,
"CoraL MortaLity in Reefs: A ProbLem for Science and Management,
PROCEEDINGS THIRD INTERNATIONAL SYMPOSIUM ON CORAL REEFS (In Press);
Id., FINAL REPORT ON THE CORAL REEF GROUP OF THE FLORIDA KEYS PROJECT
FOR YEAR 1973; Fort Pierce, FLoricla: Harbor Branch Foundation (1974).
G. M. Griffen and A. Antonius, "Turbidity and CoraL Reef HeaLth in Waters
of Pennekamp Park, Upper Keys;" 37 THE-FLORIDA SCIENTIST, QUARTERLY JOURNAL
of The FLoricla Academy of Science 15 (1974); R. J. Johannes, CORAL REEFS
AND POLLUTION: FAO TechnicaL Conference on Marine PoLLution, Rome, ItaLy,
(1970); G. L. Voss, "Sickness and Death in FLorida's CoraL Reefs," 82
NATURAL HISTORY 40-47 (1973).

46. 15 C.F.R. s. 922.20 (b).

47. A. Weiner, supra note 45. The budget for the proposaL is $6,000. Comman-
der PhiLLip C. Johns6_n, the Marine Sanctuaries Coordinator, OCZM, said
that he expected the money to be funded, March 24, 1977.

48. Information concerning the nomination of Cape Lookout Marine Sanctuary
sent to Commander PhiLLip C. Johnson, Marine Sanctuaries Coordinator, OCZM,
from the North CaroLina Office of Marine Affairs, June 21, 1976.

'Note: WhiLe Cape Lookout is stiLL a viabLe nomination, OCZM has re-
ceived word from the North CaroLina Marine Affairs Office that the status
of the nomination is dormant untiL the change in administration i-S com-
pLeted. (Handwritten memorandum by Commander PhiLLip Johnson regarding
a caLL from Roger Pratt of the N.C. Marine Affairs Office, February 8,
1977.)

49. Id.

50. Id.

51. Id.

52. CongressionaL Research Science, Library of Congress, CONGRESS AND THE
NATION'S ENVIRONMENT, pp. 1220-12Z1, (1977).

53. Id.

54. 15 C.F.R. s. 922.1(c).

55. Id., s. 921.6(b).

56. CZMA, s. 3150).

57. 15 C.F.R. s. 921.2(a).

53. Id., s. 921.3(a).

59. Id., s. 921.3(a)(l)-(5).

60. Id., s. 921.

61. NOAA Comments on Estuarine Sanctuary GuideLines, 39 FED. REG. 19922,
June 6, 1974.

62. MPRSA, s. 302(a). The impLementing reguLations added research to the
purposes for which a sanctuary can be estabLished. 115 C.F.R. s. 922.11(b)].

63. 15 C.F.R. s..921.4(a).

64. 15 U.S.T. 74, TIAS 5578.

65. See 15 C.F.R. ss. 920.13 and 923.13.
66. Conversation with W*i@Liam MiLLhouserAssistant RegionaL Coordinatorp
GuLf Region, OCZM, March 4, 1977.

67. Conversations with John ToLson, Assistant RegionaL Coordinator, Great
Lakes Region,OCZM, March 4, 1977.

68. FLORIDA.STATUTES, Section 258.37(l), (1975).

69. Conversation with Mark Kaufmann, Massachusetts CoastaL Zone Management
Program, March 3, 1977.

70. Id.

71. Robert Knecht, Associate Administrator for CoastaL Zone Management, NOAA,
Department of Commerce, in OCEAN DUMPING--PART 2, JOINT HEARINGS BEFORE
THE SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION AND THE ENVIRON-
MENT AND THE SUBCOMMITTEE ON OCEANOGRAPHY OF THE HOUSE COMMITTEE ON MER-
CHANT MARINE AND FISHERIES, 94th Congress, 2d Sess., Ser. No. 94-25 (1976),
p. 202.

72. Id.

73. Id., pp. 194-95.

V. The Fed6raL/State RoLe in Managing Marine Resources

As has previousLy been discussed in chapter 111, the fecleraL government

has assumed an ever-increasing roLe in managing and protecting naturaL resources.

State governments, LocaL governments, internationaL bodies, and even private

citizens and citizens groups are aLso taking broader actions to protect naturaL

resources. For the most part, however, this increasing invoLvement is embodied

in LegisLation or programs to conserve a specific resource or vaLue, or to

reguLate a particuLar activity. This focus on narrow issues and the overLapping

of state, fecleraL, and internationaL jurisdiction, has resuLted in the incon-

sistent, compartmentaLized, uncoordinated management of naturaL resources.

The near and offshore environment that faLLs within the scope of the Ma-

rine Sanctuaries Program is particuLarLy subject to a fragmented matrix of

requLation and protection from a variety of fecleraL and state agencies, under a

variety of statutes and internationaL treaties. Since existing programs aLready

provide varying degrees of protection and reguLation of the marine environment,

however, it is important in assessing the need for an expanded Marine Sanctuaries

Program to know the scope of these existing programs, and to determine if they,

singLy or together, meet the goaLs of the Marine Sanctuaries Program. Moreover,

we must know how or if they might compLement or confLict with an expanded Marine

Sanctuaries Program.

A. JurisclictionaL Extent@of Other FecleraL Programs

Of the expanding List of federaL environmentaL and conservation programs.

many exert an impact on the areas within the scope of marine sanctuaries juris-

diction. Because of the intermittent manner in which these programs deveLoped,

and because many of them are primariLy Land-oriented, the compLete picture of

fecleraL jurisdiction over activities and resources in and affecting the marine

environment is a compLicated one. Programs overLap, confLict, and even, in

some cases, faiL to incLude A particuLar area of jurisdiction. The foLLowing

discussion outLines the scope of other federaL programs that overLap or compLe-

ment the Marine Sanctuary Program, and indicates how successfuLLy these other

programs might meet the goaLs estabLished for marine sanctuaries.

1. FecleraL Resource Management Programs

Marine sanctuaries are estabLished to preserve or restore ocean waters for

their conservation, recreationaL, ecoLogicaL or esthetic vaLues. The marine

santuaries' reguLations address these purposes by providing for the estabLish-

ment of marine sanctuaries as habitat areas, species areas, research areas, rec-

reationaL and esthetic areas, and unique areas (see pp. 57-59). Numerous other

fecleraL programs, however, aLready achieve simiLar purposes in coastaL or off-

shore areas.

a. Species Protection/Management Programs

The protection of threatened species in the marine environment is the ob-
1
ject of federaL programs authorized by the Endangered Species Act, the Marine

MammaL Protection Act, and the Fishery Conservation and M anagement Act. Under

the Endangered Species Act, the Department of the Interior (Fish and WiLdLife

Service) and the Department of Commerce (NationaL Marine Fisheries Service) ex-

tend protection to designated endangered and threatened species of animaLs and

pLants. The-Secretaries have the authority not onLy to Limit the "taking" of
species, but aLso to protect criticaL habitat. Moreover, other federaL agen-
cies are required to take aLL actions'necessary to ensure that their activities,
incLuding the granting of permits, do not jeopardize the survivaL of endangered

or threatened species or their criticaL habitat.

The Marine MammaL Protection Act, aLso administered by both the Depar t-

ments of Interior -and Commerce, extends protection to species or stocks of ma-

rine mammaLs even before they reach an endangered status. However, the integ-

rity of the species is not the onLy factor considered in their protection --

the "conservation, cleveLopment, and utiLization of fishery resources" is aLso

a criterion in prescribing reguLations. ConsequentLy, as has happened with re-

spect to the porpoises being caught in yeLLow-fin tuna fishing operations, cer-

tain numbers of marine mammaLs may, depending upon the outcome of this contro-

versy in the courts and before the Congress, be permitted to be kiLLed in the

interest of protecting the fishing industry.

The Fishery Conservation and Management Act of 1976, in addition to ex-

tending U. S. management authority over most Living marine resources to 200

nauticaL miLes, requires the setting of optimaL quotas for fish catches, gives

U. S. fishermen first priority in harvesting stocks, and provides strict pro-

tection for species that are or faLL beLow optimaL LeveLs. Fishery management

pLans, set by regionaL counciLs or by the Secretary of Commerce (through the

NationaL Marine Fisheries Service), may designate zones where fishing is Limite d

or prohibited, estabLish Limitations on the catch or fish where necessary for

the management or conservation of the fishery, set reguLations concerning the

use or nonuse-of certain types of boats and equipment, and prescribe other

measures necessary for the management and conservation of the fishery.

ALthough there has been criticism of the way this LegisLation is being

initiaLLy impLemented (primariLy because some observers beLieve undue consid-

eration is being given to foreign fishing interests), the Act does provide a

mechanism to protect fish species within the 200-miLe fishery conservation

zone. However, the Act's focus on conserving and managing the fishery resources

is different and narrower than the protection avaiLabLe under the Marine Sanc-

tuaries Program. The Latter program is specificaLLy designed to provide broad-

based management for conservation and preservation purposes.. The Fisheries Act,

in contrast, provides onLy for the conservation of certain marine resources to

achieve its overriding goaL of assuring optimum yieLd.and efficiency in the

utiLization of fishery resources, (but see p. 90, concerning the effect of this

Act on the Secretar y of Interior's authority under the Outer ContinentaL SheLf

Lands Act).

One additionaL aspect of the Fisheries Conservation and Management Act is

of particuLar significance to the Marine Sanctuaries Program -- nameLy, the fact

that the Act was passed before, aLbeit in anticipation of an internationaL agree-

ment on a 200-miLe economic resource zone. By this uniLateraL action Congress,

whiLe stiLL recognizing and deaLing with the internationaL impLic'ations, demon-

strated a marked turnabout from the deference it, especiaL Ly the Senate, paid

to internationaL jurisdiction in debating the Marine Sanctuaries TitLe of the

Marine Protection, Research and Sanctuaries Act of 1972 (see p. 35).

The protection provided to marine species under the Fisheries Conserva-
tion, Marine MammaL Protection, and Endangered Species Acts, whiLe substanti aL,
stiLL does not offer the protection avaiLabLe by a marine sanctuary. A marine

sanctuary is not Limited by commerciaL considerations as are the fishery and

marine mammaL programs, and need not cleLay its protection untiL a species is

endangered or threatened. Moreover, a marine sanctuary, whiLe Limited in area

in a way these other programs are not, can be estabLished specificaLLy to pro-

tect species by preserving important or unique habitats for pureLy non-commerciaL

reasons. ALthough the endangered species LegisLation can aLso protect criticaL

habitat, it can do so onLy for endangered or threatened species.

B. Land Management Programs

FederaL invoLvement in the conservation and management of naturaL resources

incLudes severaL programs to acquire and manage Land for conservation and preser-

vation purposes. Most notabLe among these programs are those invoLving Lands

within the NationaL Park System, the WiLderness Preservation System, the Na-

tionaL WiLdLife Refuge System, and the Estuarine Sanctuaries Program.

The NationaL Park Service administers areas under its jurisdiction for the

duaL purposes of recreation and preservation. Park Service areas are generaLLy

Land areas and, whiLe the syst em does incLude NationaL Seashores-and coastaL

and Lakeshore units, even these units are oriented toward shore activities. In

a few instances, however,'-such as the Virgin IsLands NationaL Park, Park Service

areas do incLude offshore areas, usuaLLy of interest for their coraL formations.

Areas within the WiLderness Preservation System are managed so as to pre-

serve primitive, unspoiLed Land areas in their naturaL state -- preservation
of Land for its own sake. No excLusiveLy marine areas have as yet been desig-
nated as wiLderness areas, aLthough isLands, keys, and some associated submerged

Lands and waters have been so designated. ALthough it does not appear that Con-

gress contempLated the incLusion of submerged areas within the system, theirin-

cLusion is not prohibited and, in fact, couLd faLL within the wiLderness defi-

nition. It is not cLear, however, whether wiLderness designation, or for that

matter any action under fecleraL pubLic Land Laws, is appropriate on outer con-
6
tinentaL sheLf Lands.

Both NationaL Park and WiLderness designation wouLd seem, therefore, to of-
-fer a means of p'rotecting and managing certain marine areas. However, neither

program can provide anything Like the protection avaiLabLe under the Marine

Sanctuaries Program. With respect to fLexibiLity in designating an area, a ma-

rine sanctuary can be designated after an administrative approvaL procedure in-

voLving the Secretary of Commerce and the President and the Governor of any state

invoLved. NationaL Park System units and WiLderness Areas, in contrast, require

CongressionaL approvaL, aLthough for some types of NationaL Park units a Presi-

clentiaL ProcLamation is sufficient. WiLderness areas are further Limited because

they can onLy be created out of existing fecleraL Lands, and because mining is

generaLLy not prohibited. The Marine Sanctuaries Program aLso has the advantage

of a much cLearer mandate to act to protect marine resources.

The Fish and WiLdLife Service manages the NationaL WiLdLife Refuge System

primariLy to protect and provide habitat for wiLdLife, expeciaLLy migratory birds

and endangered species. The Secretary of the Interior can designate additionaL

refuges out of the pubLic domain or acquire further Lands for the system. Once

designated, each refuge is managed in a manner taiLored to the species and hab-

itat being protected, with wide discretion given to the Fish and WiLdLife Ser-

vice to reguLate activities. Yet, despite this capabiLity of providing broad

protection, the orientation of the Refuge System is clistinctLy wiLdLife as op-

posed to fish,and Land/shore as opposed to offshore. Thus, the WiLdLife Refuge

Program can compLement but not substitute for the Marine Sanctuaries Program'.

The Estuarine Sanctuaries Program, administered by the Secretary of Com-

merce through the Office of CoastaL Zone Management, is a fourth program which

can assist in the protection of marine resources through "Land" acquisition and

management. However, as discussed in more cletaiL on pages 68-71, the Estuarine

Sanctuaries Program and the Marine Sanctuaries Program differ in their geogra-

phicaL scope, their goaLs, the avaiLabiLity of funding for the programs, their

manner of designation, and the agencies managing the day-to-day ope ration of the

designated sanctuary.

In concLusion, it appears that, among federaL Land management programs

which protect Land and possibLy marine resources, there is no program that can

provide the broad scope, the fLexibiLity, and uncompromised and unconfLicting

purposes of the Marine Sanctuaries Program.

C. FecleraL Land Use PLanning Programs

7
The CoastaL Zone Management Act of 1972 estabLished a grants-in-aid pro-

gram for state Land use pLanning for the coastaL zone. Under the supervision of

the Office of CoastaL Zone Management, the states are encouraged to estabLish

management programs fo.r the use of Land and water in coastaL areas which extend

Landward from the shoreLine to the extent necessary to c ontroL shoreLands, and

seaward to the Limit of the territoriaL sea. State coastaL zone management pro-

grams wiLL not have the geographicaL breadth of the Marine Sanctuaries Program,

and aLthough they are required to address the management of marine resources,

they cannot be viewed as viabLe substitutes for a Marine Sanctuaries Program.

But, as the focus of aLL state and federaL programs affecting the coastaL zone

(since federaL agencies must-ensure consistency with state management pLans),

the state coastaL zone management pLans wiLL be an important and perhaps the

primary tooL to coordinate aLL marine-resource-oriented programs, as weLL as to

controL on-shore activities that have an impact on marine resources.

2. FederaL ReguLatory Programs

EssentiaL to the preservation of any area for a speciaL purpose is the

authority to prescribe reguLations to controL activities within that area. Such

reguLatory controL is provided for in the Marine Sanctuari(-,s Program. The foL-

Lowing anaLysis focuses on whether that controL is necessary to meet the goaLs

of the Marine Sanctuaries Program, since many activities in, on, and under the

oceans are aLready ostensibLy reguLated by federaL agencies.

a. Outer ContinentaL SheLf MineraL Leasing

MineraL Leasing on the outer continentaL sheLf beyond terri toriaL waters

is reguLated by the Secretary of the Interior through the Bureau of Land Manage-
8
ment under the terms of the Outer ContinentaL SheLf Lands Act of 1953 and its
9
impLementing requLations. Under this act, the Secretary can prescribe reguLa-

tions for the conservation of the naturaL resources of the outer'continentaL

sheLf. one judiciaL interpretation of this authority is that the Secretary

can issue requLations for the conservation of aLL naturaL resources of the

outer continentaL sheLf -- marine Life, recreation, aesthetics, as weLL as
10
mineraL resources; however, in Light of the Act's overwheLming focus on min-

eraL Leasing and the subsoiL and seabed, another possibLe interpretation is

that the Secretary's authority extends onLy to the reguLation of non-Living

resourdes. Moreover, since the Fisheries Conservation and Management Act (see

page 84) vests authority over fisheries resources, incLuding coraLs, on the.

outer continentaL sheLf in the Secretary of Commerce, it may be that this Leg-

isLation has preempted whatever authority the Secretary of the Interior had

over these resources.

Under the OCS Lands Act, the Secretary of the Interior can suspend driLL-

ing operations under existing Leases "whenever he determines that the risk to

the marine environment outweighs the immediate nationaL interest in expLoring
11
and driLLing for oiL and gas." But of greater importance with respect to

marine sanctuaries-Like protection is the Secretary's authority to exempt outer

continentaL sheLf Lands from mineraL Leasing. Two procedures are avaiLabLe.
12
The President may permanentLy withdraw areas from Leasing, as was the case

with the Key Largo CoraL Reef Preserve and the Santa Barbara EcoLogicaL Preserve

and Buffer Zone. There are, however, no reguLations or guideLin es for these

withdrawaLs; thus, whiLe t-hey are permanent, they are created onLy on an ad hoc

basis. After such withdrawaL, the Secretary can issue reguLations controLLing

activities in these areas. In the case of the Key Largo CoraL Reef Preserve,

now clesignafe-cl as a marine sanctuaryf. the reguLations were essentiaLLy the 'Same
as those of the adjacent John Pennekamp CoraL Reef Park administered by the*

State of FLorida. ReguLations for the Santa Barbara area, however, are Limited

to non-Leasing of oiL and gas driLLing rights, inclicatin@g the discretion avaiL-

abLe in estabLishing such reguLations. ALternativeLy, the Secretary can cleLete

certain areas from outer continentaL sheLf Leasing saLes for Lack of information,
or for esthetic, environmentaL, geoLogicaL or other reasons. 13 These "with-

drawaLs," however, are not permanent.

Thus, whiLe there is probabLy authority to withdraw and protect outer con-

tinentaL sheLf areas from mineraL Leasing and environmentaL degradation, this

authority is exercised on an ad hoc basis, is not aLways permanent, and is not

tied to a comprehensive review program to assess what areas wouLd be best for

withdrawaL. In addition, this authority onLy appLies to outer continentaL sheLf

Lands more than three miLes offshore, since the states have juriscli ction within

the three-miLe Limit. The Marine Sanctuaries Program not onLy has broader jur-

isdiction than that given the Secretary of the Interior under the Outer Conti-

nentaL SheLf Lands Act, but, even more importantLy, has a greater mandate to

protect marine resources.

b. PoLLution of Ocean Waters

(i) Ocean Discharges

The controL of di .scharges into ocean waters is reguLated in part through
14
the NationaL PoLLutant Discharge ELimination System (NPDES) through ocean dis-

charge criteria estabLished under s. 403 of the FederaL Water PoLLution ControL

15
Act. This'-program,.administered by the EnvironmentaL Protection Agency
(EPA), in cooperation with the states, requires aLL distinct sources of dis-

charges into navigabLe water to obtain a per mit from EPA or the state if its

program has been approved by EPA. Thus, aLL point sources of poLLution, in-

cLuding vesseLs, but excLuding discharges of oiL into the waters of the con-
16
tiguous zone which are reguLated under the 1961 OiL PoLLution Act., are re-

quired to obtain permits which require conformance with EPA-determined nationaL

guideLines. For ocean discharges, no permit may be issued where there is in-

sufficient information upon which to make a reasonabLe determination about the
17
impact of a proposed discharge on the marine environment. In Light of the

data gaps on the impact of poLLutants on marine ecoLogy, many discharges may

not be permitted.

With respect to those NPDES programs administered by the states, which

incLude permits for marine discharges, states can have standards stricter than

the fecleraL guideLines. The state programs, however, extend onLy to the three-

miLe Limit of state jurisdiction in marine waters, and are aLways subject to

EPA review and withdrawaL of approvaL. Beyond three miLes, with respect to the
discharge of oiL and hazardous substances 18 and sewerage from vesseLs, 19 EPA

has fuLL reguLatory authority.

The reguLation of discharges into ocean waters, then, is achieved through

a comprehensive progr.am that does consider the effect of poLLutants on the in-

tegrity of the ocean ecosystem. In attempting to achieve broad environmentaL

goaLs, however, this program has sacrificed the fLexibiLity to deaL clifferentLy

with speciaL circumstances a fLexibiLity that is a key f actor of the Marine

Sanctuaries Program.

(ii) Ocean Dumping

Ocean dumping is subject to a combined reguLatory scheme under the provi-
20
sions of TitLe I of the Marine Protection, Research and Sanctuaries Act. The

EnvironmentaL Protection Agency is the permit agency for the transportatton of

aLL non-dredged materiaLs for the purposes of ocean dumping. For dredged ma-

teriaLs, the Army Corps of Engineers grants permits according to criteria es-

tabLished by EPA, which can veto any Corps permit approvaL. The Coast Guard

has the surveiLLance responsibiLity for aLL ocean dumping.

OveraLL, this system reguLates ocean dumping, but on an ad hoc basis --

it can onLy react to permit appLications. RadioLogicaL,chemicaL and bioLogicaL

warfare agents and high-LeveL radioactive wastes are not eLigibLe for permits,

but otherwise the ocean dumping program essentiaLLy represents a License to

poLLute. The offensiveness of this "Licensed poLLution" depends on the criteria

upon which the permits are granted. In estabLishing criteria for reviewing

ocean dumping appLications, the integrity of the marine ecosystem is considered,

but aLong with other economic and human heaLth and weLfare factors that offset
21
the importance of ocean resource protection. A recent GeneraL Accounting
22
Office Report on the probLems of reguLating ocean dumping states that EPA

reguLations are not adequate to protect the marine environment, b ecause dumped

sewage sLudge often exceecl@s safety LeveLs for mercury and cadmium. EPA officiaLs

conceded that such dumping may degrade the environment, but they feeL that dump-

ing of municipaL sewage sLudge must continue untiL aLternative disposaL methods

23
are found. Even though EPA recentLy strengthened its reguLations, the prob-

Lems with the standards and with their monitoring wiLL Limit the effectiveness

of the ocean dumping to protect marine resources. The program wiLL continue

to aLLow dumping and the degradation of the marine environment. The best that

can be expected is that such degradation be kept to a minimum.

(iii) Protection of Navigation

The U. S. Army Corps of Engineers has the responsibiLity for maintaining

the free navigabiLity of the nation's waterways. IncLuded within this respon-
24 25
sibiLity is authority over the dredging and disposaL of dredged materiaLs

in navigabLe waters, and the creation of any obstructions to navigation in
navigabLe waters. 26 It-.is evident from the Corps' combined reguLations for
27
these activities that the Corps, in its permit program, does not share the

same concerns as those of the Marine Sanctuaries Program. ALthough environmen-

taL impacts are considered by the Corps in reviewing permit appLications, eco-

nomic, navigation, and pubLic need and weLfare factors are aLso considered in

the finaL baLancing process. By baLancing marine resource vaLues against these

other considerations, the protection of the marine environment receives Less

than the fuLL emphasis provided within the Marine Sanctuaries Program.

Moreover, since it is based on a permit system, the Corps program is mereLy

reactive. Without tying the permit program to a comprehensive pLanning process,

the Corps is Limited in-t4e affirmative measures it can take to decide the best

pLace or the best way to conduct an activity within its permit jurisdiction.

As the system now operates, a proposed activity need not be designed in

the most envi-ronmentaLLy sound manner, but onLy in a manner that is not un-

acceptabLe. The resuLt is Less than optimaL environmentaL decision-ma.king.

(iv) Shi'pping

Shipping in the coastaL and offshore waters of the United States is regu-
28
laled by the Coast Guard under he Ports and Waterways Safety Act of 1972.

As part of this reguLation, the Coast Guard can act to protect navigation and

environmentaL quaLity by estabLishing vesseL traffic systems, requiring certain

safety equipment, and setting procedures for handLing, dangerous cargo and for

operating in hazardous areas. In addition, the Coast Guard is authorized to

estabLish minimum design and safety standards for oiL tankers and ships carrying

hazardous substances -- for new and existing vesseLs, both domestic and foreign.

Despite this authority, the Coast Guard has been sLow to enforce these pro-

visions. According to a statement by Senator Kennedy at a recent hearing on oiL

tanker mishaps:

The discretionary authority that was granted to the
executive agencies under the Ports and Waterways Safety
Act of 1972 has been abused. DeLay, timidity, and bu-
reaucratic Lethargy characterize the past five years
of that Law's history./29

Not onLy is the promuLgation of standards and reguLations at the disc retion of

the Coast Guard, but the authorizing Act provides severaL exceptions to the ap-

pLication of the standards. Moreover, the Coast Guard, infLuenced by the State

Department, maintains that-acting uniLateraLLy to reguLate internationaL vesseL
design standards wouLd weaken the U. S. position in internationaL negotiations. 30

Thus, despite its authority to controL vesseL movements and design features, the

95
10

Coast Guard does not appear to be doing atL it couLd to reguLate shipping in

the interest of protecting navigation and environmentaL quaLity.

c. SpeciaL Ocean Uses

M Deepwater Ports

The reguLation of cleepwater ports, currentLy being considered to avoid

some of the hazards of onshore oiL deLivery whiLe at the same time accommoclat-

ing the Larger oiL tankers, is compLeteLy within the jurisdiction of the Depart-

ment of Transportation (Coast Guard) if the port is Located more than three

miLes out to sea. ALthough individuaL permits from other fecleraL agencies wouLd

normaLLy be required for an activity such as the construction and operation of
31
a cleepwater Port, the Deepwater Port Act provides for a streamLined adminis-

trative review procedure resuLting in one coordinated appLication for aLL re-

quired fecleraL authorizations. ALthough the Secretary of Transportation is

responsibLe for cleveLoping reguLations to govern the expedited environmentaL

and safety review process, the EnvironmentaL Protection Agency may veto the ap-

pLication if it determines that the appLication wouLd confLict with the stand-

ards estabLished pursuant to the CLean Air and Water and Ocean Dumping Acts. In-

addition, the governor of adjacent coastaL states may veto the appLication for

inter aLia,confLicts with state environmentaL protection standards, Land/water

uses reguLations, or its coastaL zone management program.

In territoriaL and inLand waters, however, the states have primary juris-

diction. ALthough state reguLation wouLd stiLL be subject to,Army Corps of

Engineers approvaL of obstructions to navi@ation, neither the Corps of Engineers

nor the states are under any obLigation to conform to the construction and op-

erating reguLations promuLgated by the Department of Transportation under the

Deepwater Port A ct. Thus, in state waters, the fecleraL standards specificaLLy

designed to reguLate cleepwater ports in the nationaL,interest, need not be met.

(ii) Offshore Power PLants
The reguLation of offshore power pLants, such as the fLoating nucLear power

pLant currentLy being considered for the coast of New Jersey, is subject to

a fecleraUstate bifurcation of jurisdiction simiLar to that described above for

cleepwater ports. However, unLike for cleepwater ports, there is no centraL.fed-

eraL agency wiLL fuLL responsibiLity over offshore power pLants outside state

waters. The construction and operation of a fLoating nucLear power pLant, for

exampLe, wouLd probabLy require approvaL by, among others, a state (if within

the three-miLe Limit), the Army Corps of Engineers (for the buiLding of d struc-

ture in navigabLe water), the EnvironmentaL Protection Agency (for discharges

into navigabLe water), and the NucLear ReguLatory Commission (for the construc-

tion and operation of a nucLear power pLant). ALL these agencies wouLd grant

or deny their approvaL based upon different standards, none of which has as its

primary concern the protection of marine resources.

cl. The AbiLity of FecleraL ReguLatory Programs to Protect
Marine Resources

The preceding discus-si-(m has outLined the major fecleraL programs with au-

thority to protect marine resources. It is cLear that these programs do not

singLy, or in combination, achieve the purposes expressed in the Marine Sanc-

tuaries TitLe-of the Marine Protection, Research, and Sanctuaries Act: to

preserve or restore designated areas for their conservation, recreationaL,
32
ecoLogicaL, or esthetic vaLues. These reguLatory programs do provide a mech-

anism for controLLing activities potentiaLLy harmfuL to ocean resources and

vaLues but, since theprograms were estabLished to meet different purposes, the

standards used in impLementing the programs do not give the conservation of

ocean resources the priority avaiLabLe in the Marine Sanctuaries Program. Fur-

thermore, the differing standards among the various programs make coordination

and consistency reaL probLems if an attempt were made to integrate these exist-

ing programs into a mechanism to protect ocean resources outside the Marine

Sanctuaries Program. A comprehensive program impLemented under a singLe set of

minimum criteria, with fine-tuning for individuaL marine sanctuaries, wouLd be

LikeLy to more simpLy and efficientLy meet these needs.

In addition, of these reguLatory programs, onLy the OCS Leasing program

contains provisions to protect specific areas from activities that might degrade

ocean resources. But this protection is Limited because it onLy appLies beyond

the three-miLe Limit, is not aLways permanent, and is not incorporated into a

comprehensive effort to protect ocean resources. And whiLe the Secretary of

the Interior has the authority under this program to issue reguLations for the

conservation of most naturaL resources of the outer continentaL sheLf, under

the Fisheries Conservation and Management Act (see pages 84 and 85) the Secretary

of Commerce has responsibiLity over continentaL sheLf fisheries resources in-

cLuding coraLs. Moreover, the Secretary of the Interior has confLicting con-

siderations in the use of this authority, so that his mandate for and interest

in reguLating'-for the protection of marine resources wiLL be Less than that

under the Marine Sanctuaries Program.

B. Comprehensiveness of Existing State Programs

Because they hoLd substantiaL authority over Land use, as weLL as over the

use of the oceans and underLying Land to the three-miLe Limit, the states have

a significant roLe to pLay in the management of marine resources. And, whiLe

the fecleraL government can or does preempt state jurisdiction in certain fieLds

(e.g., the protection of navigation), the fecleraL government has generaLLy aL-

Lowed the states to share reguLatory controL, aLthough usuaLLy subject to fed-

eraL guideLines.

State reguLation and management of marin e resources, however, is subject

to certain inherent Limitations. First, state jurisdiction ends abruptLy at a

state's borders, incLuding the seaward boundary of three miLes. To manage ma-

rine resources that do not respect poLiticaL boundaries, an effective program

must possess the broadest possibLe geographicaL area. The Marine Sanctuaries

Program encompasses this broad scope (as broad as federaL jurisdiction e xtends),

aLthough in the state-reguLated territoriaL waters a marine sanctuaries desig-

nation is subject to state veto. Second, inclividuaLLy devised state programs

wiLL inevitabLy differ, providing differing standards, differing protection,

and difficuLties in coordinating the programs. Third, states wiL L often Lack

the momentum occasionaLLy ftund at the fecleraL LeveL to impLement an environ-

mentaL protection program. The more parochiaL nature of state viewpoints and

the comparative shortage of funds at the state LeveL couLd resuLt in a reduced

motivation ory the part of a state in acting to protect marine resources, partic-

uLarLy when the benefits, but not the costs, are shared by other states.

ALthough a compLete inventory of current state marine sanctuary-Like pro-

grams has not yet been compLeted by the Center for NaturaL Areas, it seems cLear

that the divergency in state programs is immense. Some states, such as Connecti-

cut and New York, have no programs-anaLogous to the Marine Sanctuaries Program.

Other states have Limited programs, such as Rhode IsLand's program to protect

fishLands. StiLL other states, Like Massachusetts and FLoricla, possess a com-

prehensive marine sanctuaries-type program. (S@ee a discussion of some of the

programs on pp. 71-73). Perhaps the most significant concLusion that can be

presentLy drawn from these state programs is that states are attempting to in-

corporate their marine sanctuaries-Like efforts within the structure of their

coastaL zone management programs.

The coastaL zone management program is a good exampLe of other state, fed-

eraL/state, and even private programs that overLap or compLement the Marine

Sanctuaries Program. ALL states, pursuant to their authority over Land and

water, have programs for the reguLation and management of particuLar resources.

However, these programs, cleaLing with such areas as wetLands, fish and game,

and recreation, are usuaLLy Land-oriented, and usuaLLy faiL to fuLLy recognize

that these individuaL programs deaL with an integrated system which is best man-

aged in a comprehensive manner.

Numerous federaL/state cooperative programs, such as the estuarine sanc-

tuaries, the endangered species, and the marine mammaL protection programs, as

100

weLL as the NationaL PoLLutant Discharge ELimination System Permit Program,

aLso affect the management of marine resources. In addition, federaL money

from the Land and Water Conservation Fund (which comes in part from the Leasing

of outer continentaL sheLf Lands) is avaiLabLe to the states for the protection

of naturaL resources, incLuding coastaL and estuarine areas, as part of outdoor

recreation projects. Funds from the Fish and WiLdLife Restoration Program are

aLso avaiLabLe to the states for the acquisition of fish and game Lands and

water areas.

State and federaL authority over marine resources aLso overLap in the ter-

ritoriaL sea -- from the shoreLine to three miLes seaward. The state has sub-

stantiaL jurisdiction here, but is subject to overriding fecleraL authority.

Thus, within this three-miLe zone, the states reguLate such activity as off-

shore mineraL cleveLopment and, in conjunction with the Army Corps of Engineers,

the siting and reguLation of such structures as cleepwater ports and offshore

power pLants.

State programs, then, can -- and, to varying degrees, do -- pLay a signifi-

cant roLe in the reguLation and management of ocean resources. WhiLe their

Limited jurisdiction, funding, and frequent Lack of motivation make them no

substitute for the fecleraL Marine Sanctuaries Program, especiaLLy since the

states have Limited controL over federaL.activities, the state programs wiLL

provide an important couip.Lement to marine sanctuaries protection. Mor.eover, in

Light of the veto power of invoLved states over the designation of marine sanc-

tuaries in their territoriaL waters, cooperation with the states is even more

important.

101

C. Trends in Ocean Management

The purpose of the foLLowing discussion is to mention some of the consid-

erations that are LikeLy to become major new factors in formuLating future

ocean poLicy. (These considerations wiLL be expanded on during Phase II.)

NotabLe among these are the pending issues at the United Nations Law of the

Sea Conference, the recent expansion of fisheries jurisdiction, and anticipated

efforts to controL deep seabed mining. ALthough these topic areas are stiLL

in their formative stages, it is not too earLy to anticipate what form poLicy

in.these areas may take, and how those forms might affect a marine sanctuary

program.

At the present time, there is Li@ttLe effort on an internationaL LeveL to

estabLish a program to protect marine resources. The 1972 United Nations Con-

ference on the Human Environment considered this issue, but in the end coul6d

onLy make severaL recommendations encouraging the protection of mar ine re-

sources through the prevention of ocean poLLution, the protection of species

inhabiting internationaL waters, the preservation of areas of internationaL

significance, and the preservation of genetic resources (see Appe ndix B).

WhiLe no internationaL program to protect marine resources is readiLy

foreseeabLe, there are internationaL negotiations underway that may substan-

tiaLLy modify nationaL jurisdiction over ocean resources., The United Nations

Law of the Sea Conference -is conducting negotiations on the sensitive issues

of the expLoitation of seabed resources, the extent of coastaL nationaL juris-

diction of coastaL waters, the protection of the marine environment from Land-

102

based activities, and.the reguLation of vesseL operatiQns., incLuding vesseL

poLLution. ALthough no finaL agreements have been reached, it is pQssibLe

that the Conference wiLL accept the concepts of a 12-miLe territoriaL sea

and a 200-miLe economic zone within which a coastaL nation has jurisdiction

over fishing and other resource expLoitation.

With respect to controLLing poLLution, the extension of coastaL nation

jurisdiction couLd be quite important in giving nations greater power to con-

troL vesseL poLLution. In addition, the present authority over the contiguous

zone to controL infringement of sanitary reguLations couLd be interpreted as

being appLicabLe to the controL of poLLution as weLL, thereby giving coastaL

nations power to reguLate the seaworthiness and the poLLution-controL equip-

ment of incoming vesseLs,

The thorniest probLem at the Law of the Sea Conference may be deep seabed

mining. WhiLe there is generaL agreement on the need for an internationaL body

to set and enforce environmentaL standards for deep seabed mining, there is

widespread disagreement about the ownership of expLoration and expLoitation

rights. Nations with the present capabiLity of cleveLoping these resources

want a scheme under which they can extract the mineraLs immediateLy. DeveLop-

ing nations, on the other hand, are arguing for cleveLopment by an internationaL

authority for the benefit of aLL.

In the fate of impas-&e at the Law of the Sea Conference, the United States

has or may soon take uniLateraL action with respect to some of the important
issues being negotiated. The Fishery Conservation and Management Act of 1976

103

is a Conqre@sionaL assertion of United States jurisdi.ction over coastaL fish-

eries to a distance of 200 nauticaL miLes. Congress recognized and made pro-

vision for the needs of foreign fishing fLeets, and recognized the possibiLity

of an internationaL agreement on such extended resource zones, but was simpLy

unwiLLing to wait for the outcome of the seemingLy enclLess conference. BiLLs
33
currentLy before Congress may resuLt in simiLar uniLateraL action being taken

in the area of deep seabed mining.

The potentiaL of internationaL consensus on a 12-miLe territoriaL boundary

and a 200-miLe economic zone bodes weLL for the viabiLity of a marine sanctu-

aries program. It wouLd aLso defuse many of the objections made to the marine

sanctuaries LegisLation because of its potentiaL interference with activities

and areas under internationat jurisdiction. Moreover, Congress' uniLateraL

extension of jurisdiction over fishery resources to 200 miLes indicates that

Congress is not wiLLing to aLLow an identified probLem to be aggravated be-

cause of the inertia of internationaL negotiations.

D. The PotentiaL RoLe of the Marine Sanctuaries Program

ALthough th ere exists significant overLaps between fecleraL and state pro-
grams and the Marine Sanctuaries Program, these other programs do not offe r,
singLy or in combination, a substitute for the Marine Sanctuaries Program.
Programs (such as those encompassing NationaL Park areas,.NationaL WiLdLife
RefVges, WiLderness areas-r and Estuarine Sanctuaries) that protect and preserve
areas of speciaL vaLue for recreationaL, esthetic, scientific, environmentaL,
or fish and wiLdLife vaLues, are generaLLy Land-or-shore-oriented, with marine

104

area protection onLy incidentaL to the management of other Land areas. Pro-

grams (such as those under the Endangered Species Acte Marine MammaL Protection

Act, and the Fishery Conservation and Management Act) that protect particuLar

species, and in certain circumstances criticaL habitat, are Limited in the spe-

cies they can protect and the countervaiLing considerations that often compro-

mise any protection. ReguLatory programs covering activities in the marine

environment suffer the Limitations of being reactive and negative in nature,

(i.e., unabLe to initiate action according to a comprehensive pLan). FecleraL

and state programs affecting marine resources are aLso Limited in their juris-

diction; within the three-miLe territoriaL sea, state programs (such as those

cleaLing with submerged Lands) are sometimes excLusive, whiLe in other areas

(such as the protection of navigation), federaL programs prevaiL. Beyond the

three-miLe Limit, even though the states have no jurisdiction, federaL programs

are Limited by internationaL agreements and other nationaL interest considera-

tions.

These Limitations on federaL and state programs are not offered to suggest

that the programs faiL to achieve their own goaLs. Rather, the described Lim-

itations were meant to iLLustrate that the goaLs of these program differ from

those estabLished for the Marine Sanctuary Program, and that, in meeting their

own goaLs, these programs cannot at the same time meet the goaLs of the Marine
Sanctuaries Program. Thus, one of the two reasons why the Senate Commerce Com-
mittee originaLLy rejec'te-8 the marine sanctuaries provisions of H.R. 9727 (see PP-
35-36)-- that the Secretary of the Interior aLready had authority, under the

Outer ContinentaL SheLf Lands Act, to reserve and protect certain outer con-

105

tinentaL sheLf Lands- is highLy circumpsect. As discussed at pages 89-91,

the authority to withdraw Lands to protect naturaL resources CavaiLabLe to

both the Secretary of the Interior and the President) onLy appLies to outer

continentaL sheLf Lands beyond the three-miLe territoriaL seas, does not

necessariLy ensure permanent protection, is exercised on an ad hoc basis with

no review process to determine what areas shouLd be withdrawn, and Lacks a

cLear congressionaL mandate to protect marine resources and vaLues. ObviousLy,

the protection avaiLabLe (and LikeLy to be given) to ocean resources under the

Outer ContinentaL SheLf Lands Act is not a substitute for the protection

offered by the Marine Sanctuaries Program.

Furthermore, the second objection raised by the Senate Commerce Committee

aLso appears to have been negated by changed circumstances. The Committee con-

cLuded that, aLthough co ntroL over the outer continentaL sheLf was within the

federaL government's jurisdiction, controL over the water CoLumn beyond the

contiguous zone was outside federaL jurisdiction. However, the passage of
the Fishery Conservation and Management Act of 1976, 34 which extended United

States jurisdiction over fishery resources to 200 miLes offshore, indicates that

Congress is now wiLLing to assert jurisdiction over the water coLumn beyond the

contiguous waters (see pp. 35, 85). Thus, both of the reasons given by the Sen-

ate Commerce Committee for deLeting TitLe III from H.R. 9727 shouLd not be

persuasive.

The Marine Sanctuaries Program, in its mandate for preserving and restor-
ing marine resources and vaLues, in its broad jurisdiction over marine areas,
in its fLexibiLity in designating sanctuary areas, and in its aLm.ost totaL

106

authority to reguLate-activities in a designated sanctuary, offers a unique,

positive, and comprehensive program to protect marine resources. Moreover, in

some instances, as with the MONITOR Marine Sanctuary, marine sanctuary authority
35
is the onLy LegaL authorization for protection avaiLabLe. Then Acting Sec-

retary of Commerce, John K. Tabor, indicated the great potentiaL of the program

in a Letter to the HonorabLe CarL ALbert, Speaker of the House of Representa-

tives, dated ApriL 16, 1974:

In formuLating the marine sanctuary provision, the Con-
gress provided a powerfuL tooL for conservation and
protection of some of the Nation's more vaLuabLe marine
areas. This LegisLation offers potentiaL for deveLop-
ment of a Landmark program, anaLogous to weLL-estab-
Lished FecleraL programs that are aLready providing
protection to some of our outstanding terrestriaL areas
such as nationaL parks, nationaL seashores, nationaL
wiLdLife refuges, wiLd and scenic rivers, and wiLder-.
ness areas ....

The program for impLementing the authorities in TitLe
III must be deveLoped and appLied wiseLy and carefuLLy
to accompLish the intent of the LegisLation and to as-
sure baLanced protection and utiLization of marine re-.
sources in the face of burgeoning nationaL needs./36

The comprehensiveness of the Marine Sanctuaries Program does not mean,

however, that other programs are not criticaL to the efficient and successfuL

impLementation of the Marine Sanctuaries Program. As former Secretary Tabor

went on to state:

The marine sanctuary provision must be meshed carefulLy
with the objectives and provisions of reLated-FederaL
LegisLation, and must take into account State programs,
particuLarLy t-hose being deveLped under the CoastaL
Zone Management Act of 1972./37

The CoastaL Zone Management Program wiLL be a positive means of integrating the

107

Marine Sanctuaries Program with other reLated programs, not onLy to resoLve

possibLe confLicts, but aLso to provide added support for marine sanctuaries,

since jurisdiction of the Marine Sanctuaries Program does not extend to Land

areas, even though Land-based activity can affect marine resources and vaLues.

In concLusion, the Marine Sanctuaries Program offers the best means of

preserving seLected areas of the marine environment. The passage of the Ma-

rine Protection, Research and Sanctuaries Act provides the congressionaL man-

date for this protection. Both the subsequent passage of the Fishery Conser-

vation and Management Act and the above-mentioned Limitations of the Secretary

of the Interior to protect outer continentaL sheLf Lands refute the Senate

Commerce Committee's objections to the LegisLation. And since, as demonstrated

above, no existing programs,-even in combination, can provide comprehensive

protection to marine resources and vaLues, the need for a viabLe Marine Sanc-

tuaries Program is cLear. In the words of Robert W. Knecht, Assistant Admin-

istrator for CoastaL Zone Management:

NOAA beLieves the CoastaL Zone Management Act, the
Marine Protection, Research, and Sanctuaries Act, the
Marine MammaL Protection Act, the Endangered Species
Act, and other pieces of LegisLation reLated thereto
amount to a substantiaL body of Law speLLing out a
major nationaL environmentaL obLigation.

We beLieve the marine sanctuary titLe of the Marine
Protection, Research, and Sanctuaries Act is a signifi-
cant part of this totaL obLigation and is an opportunity
to provide for baLanced, weLL-managed, environmentaLLy
sound use of the Nation's marine resources./38

108

Footnotes Chapter'V
io
1. 16 U.S.C. s. 1531 et. seq.

2. 16 U.S.C. s. 1361, 1362, 1371-1384, 1401-1407.

3. 16 U.S.C. s. 1801 et. seq.

4. 16 U.S.C. s. 1373(b)(4).

5. See 16 U.S.C. s. 1851(a).

6. See 43 u.s.c. s. 1333 and 43 C.F.R. s. 3300.0-4.

7. 16 U.S.C. s. 1451 et. seq.

8. 43 U.S.C. s. 1331-1343.

9. 43 C.F.R. s. 3300.

10. UNION OIL COMPANY OF CALIFORNIA v. MORTON, 512 F.2cl 743 (1975).

11. GULF OIL CORPORATION v. MORTON, 493 F.2d 141 (1973).

12. 43 U.S.C. s. 1341(a).

13. 43 U.S.C. s. 1337(a).

14. s. 402 of the FecleraL Water PoLLution ControL Act, 33 U.S.C. s. 1342.

15. 33 U.S.C. s. 1343.

16. 33 U.S.C. ss. 1001-1016. See 33 U.S.C. s. 1321(b)(3).

17. 33 U.S.C. s. 1343 (c)(2).

18. 33 U.S.C. s. 1321.

19. 33 U.S.C. s. 1322.

20. 33 U.S.C. ss. 1401-1444.

21. 33 U.S.C. s. 1412(a)-.

22. Reported in CONSERVATION REPORT, Report No. 4, February 4, 1977, p. 53.
(PubLished by the NationaL WiLdLife Federation).
10 23.1 Id.
109

24. 33 U.S.C. s. 403.

25. 33 U.S.C. s. 1343; 33 U.S.C. ss. 1413.

26. 33 U.S.C. s. 403, 43 U.S.C. s. 1333(f).

27. 33 C.F.R. s. 209.120.

28. 33 U.S.C. ss. 1221-1227.

29. Quoted in CONSERVATION REPORT, Report No. 2, January 21, 1977, p. 21.
(PubLished by the NationaL WiLdLife Federation).

30. See CONSERVATION REPORT, Id.

31. 33 U.S.C. ss. 1501-1524.

32. 16 U.S.C. s. 1432.

33. H.R. 3652 and H.R. 3350 (95th Cong., lst Sess).

34. 16 U.S.C. s. 1801.

35. United States Department of Commerce, "Report to the Congress on ImpLe-
mentation of the Marine Protection, Research and Sanctuary Act (TitLe
III)," JuLy, 1974 through June 1975, p. 2.

36. Letter from John K. Tabor, Acting Secretary of Commerce to the HonorabLe
CarL ALbert, in OCEAN DUMPING OVERSIGHT HEARINGS BEFORE THE SUBCOMMITTEE
ON FISHERIES AND WILDLIFE CONSERVATION AND THE ENVIRONMENT AND THE SUB-
COMMITTEE ON OCEANOGRAPHY OF THE HOUSE COMMITTEE ON MERCHANT MARINE AND
FISHERIES, Ser. No. 93-38 (1974), p. 278.

37. Id.

38. Statement of Robert W. Knecht, Assistant Administrator for CoastaL Zone
Management before House Hearings, in OCEAN DUMPING - PART 2, JOINT HEAR-
INGS BEFORE THE SUBCOMMITTEE ON FISHERIES AND WILDLIFE CONSERVATION AND
THE ENVIRONMENT AND THE SUBCOMMITTEE ON OCEANOGRAPHY OF THE HOUSE COM-
MITTEE ON MERCHANT MARINE AND FISHERIES, 94th Cong., 2d Sess., Ser. No.
Od 94-25 (1976), p. 1 93.

110

APPENDIX A

SeLected Excerpts from the LegisLative History
of the Marine Sanctuaries TitLe of the Marine
Protection, Research, and Sanctuaries Act*

Page numbers, denoted in parenthesis, are ref-
erences to U.S. EnvironmentaL Protection Agency,
LEGAL COMPILATION: STATUTES AND LEGAL HISTORY,
EXECUTIVE ORDERS, REGULATIONS, GUIDELINES, AND
REPORTS, voL. III, supp. "water" (1973).

A-1

Report of the House Committee on Merchant Marine and Fisheries
[H.R. Rep. No. 92-361, 92d Cong., ist sess., 19711.

A. FecleraL ConsuLtation

,(a) The consuLtation process is designed to coordinate the interests of
various FecleraL departments and agencies, incLuding the management of fisher-
ies resources, the protection of nationaL security and transportation inter-
ests, and the recognition of responsibiLity for the expLoration and expLoita-
tion of mineraL resources. It is expected that aLL interests wiLL be considered,
and that no sanctuary wiLL be designated without compLete coordination in this
regard. In any case where there is no way to reconciLe competing uses, it is
expected that the uLtimate decision wiLL be made at a higher LeveL in the Execu-
tive branch. (1563).

B. State ConsuLtation

(b) This subsection provides for appropriate consuLtation with State Of-
ficiaLs before a marine sanctuary is designated which incLudes waters within
the territoriaL Limits of a State or any other waters Lying above the subsoiL
or seabed, the naturaL resources of which are recognized by the Submerged Lands
Act as beLonging to the respective State or States. In addition to the con-
suLtation process, State interests are protected by suspending any sanctuary
designation by the Secretary of Commerce as to any such waters untiL 60 days
after pubLication of such designation and Limiting the scope of any such sanc-
tuary with respect to any part within the territoriaL jurisdiction of a State
which the respective Governor certifies as so Limited. The Governor may sub-
sequentLy withdraw his objection in which case the designation, if stiLL pend-
ing, wiLL become effective immediateLy. This subsection is intended to pro-
tect State titLe and ownership in the Lands beneath its navigabLe waters and
seaward boundaries and is expected to be administered in a way to give fuLL
effect to that intent. (1563).

C. InternationaL Agreements

(c) This subsection directs the Secretary of State to take appropriate
action to obtain those internationaL agreements which may be necessary to pro-
tect the purposes of any sanctuary which incLudes waters Lying outside the con-
tiguous zone.
D . AnnuaL Reports-

(d) This subsection directs the Secretary of Commerce to take action
under this titLe within two years and requires him to submit annuaL reports
as to his actions.

A-2

E. PubLic Hearings

(e) This subsection estabLishes a pubLic hearing process designed to
give aLL i.nterested parties an opportunity to express their views. PubLic
hearings need not be heLd on each proposaL for a marine sanctuary; after suf-
ficient facts are avaiLabLe to the Secretary which indicate that designation
action appears to be clesirabLe, such hearings shouLd be heLd. The Secretary
may cleveLop preLiminary information in any manner he sees fit; however, a
scheme for processing preLiminary information is considered necessary if
the designation process is to be responsive to the pubLic interest and need,
and the Secretary is expected to deveLop and pubLish such a scheme.

F. ReguLations

M This subsection authorizes reguLations to protect the purpose of
the sanctuary designation. Any activity permitted within the sanctuary must,
therefore, conform to the reguLations issued under this subsection, and no
activity shaLL be vaLid which does not do so. (1563).

2. Excerpts from the FLoor Debates on TitLe III in the House of
Representatives

A. Remarks of Congressman DingeLL (Michigan)

The titLe aLso goes into some cletaiL in the matter of pubLic hearings on
proposed sanctuaries -- echoing a continuing concern of the committee that the
pubLic must be brought into the clecisionmaking process and given adequate in-
formation in connection with matters arising under this act.

Let me stress the point that titLe III is permissive -- it aLLows the Sec-
retary of Commerce to clecLare sanctuaries in appropriate cases. We make no
attempt to force him to do so. WhiLe it is conceivabLe that the views of future
Cabinet officers may differ -- and I have heard no suggestions that the present
Secretary is.overLy weLL disposed to the protection of environmentaL vaLues at
the expense of resource expLoitation -- it is aLso cLear that the means for
resoLving these disputes is in the hands of the President, who can instruct the
Secretary to withhoLd sanctuary status from an area deemed important for miLi-
tary, resource, dipLomatic, or any other reasons. In titLe III-we do no more
than provide the tooLs with which to preserve important assets for generations
yet unborn. (p. 1678).

B. Remarks of Congressman Harrington (Massachusetts)

These sanctuaries wiLL immediateLy preserve vitaL areas of our coastLine
from further damage. My onLy reservation is that we may be drasticaLLy under-
funding both titLes II and III. (p. 1759).

A-3

C. Remarks of Congressman Keith (Ma@sachusetts)

TitLe III simpLy provides for an orderLy review of the activities on our
ContinentaL SheLf. Its purpose is to assure the preservation of our coastaL
areas and fisheries, thus protecting our source of protein and at the same
timeassuring such inclustriaL and commerciaL deveLopment as may be necessary
in the nationaL interest.

TitLe III gives more than mere consideration to both of these compeLLing
nationaL probLems. It provides for muLtipLe usage of the designated areas.
It provides a baLanced even-handed means of prohibiting the resoLution of one
probLem at the expense of the other. It guards against "ecoLogy for the sake
of ecoLogy." It aLso guards against the cynicaL phiLosophy that the need for
oiL is so compeLLing that it justifies the destruction of our environment.
(p. 1690).

D. Remarks of Congressman Mosher (Ohio)

The report of your committee makes it abundantLy cLear that the-designa-
tion of a marine sanctuary is not intended to ruLe out muLtimpLe use of the
sea surface, water coLumn or sea bed. Any proposed activity must, however,
be consistent with the overaLL purpose of this titLe. An inconsistent use, in
my opinion, wouLd be one which negates the fundamentaL purpose for which a spe-
cific sanctuary may be estabLished.

This titLe, Mr. Chairman, is intended to insure that our coastaL ocean
waters are utiLized to meet our totaL needs from the sea. Those needs incLude
recreation, resource expLoitation, the advancement of knowLedge of. the earth,
and the preservation of unique areas. ALL are important.

This titLe is not designed to terminate the use of our coastaL waters to
meet any of these needs. (p. 1683).

E. Remarks of Congressman Lennon (North CaroLina)

TitLe III concerning the designation of marine sanctuaries provides a
scheme whereby areas may be preserved or restored in order to insure their
maximum overaLL potentiaL and wouLd, in effect, provide for nationaL decisions
on competing uses in the offshore waters. (p. 1686).

F. Remarks of Congressman MaiLLiard (CaLifornia)

We must aLso undertake to survey in a broad sense our coastaL waters ex-
tending over the ContinentaL SheLf to pinpoint those areas which are of partic-
uLar vaLue. In those areas, which we have termed marine sanctuaries, we shouLd
be certain that man's use of the sea or his intervention in the sea is in har-

A-4

mony with the unique-attributes of the area, That is not to say that man
shouLd not go into the sea to expLQit its resources, Living and non-Living,
but onLy that he must do this inteLLigentLy, giving due consideration to aLL
of the uses and benefits which these areas may contribute for our weLL-being.
TitLe III of this LegisLation, therefore, is intended to assure the
cleveLopment of these resources and at the same time provide some Legitimate
protection against thoughtLess abuse of the sea. (p. 1688).

G. Remarks of Congressman Frey (FLorida)

The phiLosophy of estabLishing marine sanctuaries is that instead of
designating areas where dumping may be conducted safeLy, we shouLd determine
which areas of our marine environment are -most vaLuabLe and set them aside as
sanctuaries. There is a need to reLate the probLem of ocean dumping to the
broader probLem of preserving certain ecosystems within the coastaL zone
areas. (p. 1694).

H. Remarks of Congressman Keith (Massachusetts)

SpecificaLLy, that purpose is to preserve or restore, for their conser-
vation, recreationaL, ecoLogicaL, or esthetic vaLues, coastaL and other waters
as far seaward as the outer edge of the ContinentaL SheLf. Most importantLy,
this titLe specificaLLy authorizes the Secretary of Commerce to consuLt with
the Secretaries of State, Defense, Interior, and Transportation, as weLL as
with the Administrator of the EnvironmentaL Protection Agency -- before desig-
nating any such area as a marine sanctuary.

CertainLy we do not intend, here, to punish consumers by denying them the
necessary food and energy of the sea and seabed. Neither, however, do we in-
tend to be so responsive to the mineraL interests that we adverseLy affect the
essentiaL protein resources of the sea.

I certainLy beLieve in the cluaL usage concept for our coastaL waters.
But I aLso beLieve such duaL usage must be baLanced. Neither usage shouLd be
permitted to destroy the other. In short, we need the oiL and gas and we need
the fish. Our biLL recognizes this key fact. And it provides the proper safe-
guards to preserve that baLanced basis. (p. 1689

II Remarks of Congressman PeLLy (Washington)

Let me reemphasize the fact that marine sanctuaries as proposed in titLe
III of this LegisLation are not intended to prevent Legitimate uses of the sea.
They are intended to protect unique areas of the ocean bordering our country.
How many such marine sanctuaries shouLd be estabLished remains to be determined.
It is LikeLy that most of them wiLL protect sections of our nationaL seashores.
A sanctuary is not meant,to be a marine wiLderness where man wiLL not enter.

A-5

Its clesign-ation wiL.L insure very simpLy a baLance between uses.

This fear is groundLess. Let me assure the distinguished chairman of
the Interior Committee that it has never been our intention to stop the
deveLopment of these vast resources. As the gentLeman from Ohio (Mr. Mosher)
stated during generaL debate yesterday, the Merchant Marine and Fisheries
Committee has Led the way in fostering the increased utiLization of the
oceans to satisfy man's need for food, energy sources, and hard mineraLs. We
have constantLy endeavored to advance technoLogy and basic knowLedge, so that
these offshore resources and the weaLth of the deep sea bed can be extracted
economocaLLy. (pp. 1720-21).

A-6

Appendix 8

InternationaL Recognition of the Need for Marine Sanctuaries

The need for governments to estabLish coastaL and marine sanctuaries,

parks, and reserves has received increasing attention in recent years at

nationaL and internationaL conferences. A SeLection of pertinent principLes,

re*soLutions, and recommendations is incLuded beLow.

A. PrincipLes of internationaL conduct reLative to the human environment

1. United Nations Conference on the Human Environment, StockhoLm,
Sweden, 5-16 June, 1972.

DecLaration on the Human Environment, A Statement of PrincipLes

PrincipLes

PrincipLe No. 2

The naturaL resources of the earth incLuding the air,
water, Land, fLora and fauna and especiaLLy representati.ve
sampLes of naturaL ecosystems must be safeguarded for the
benefit of present and future generations through carefuL
pLanning or management as appropriate.

PrincipLe No. 3

The capacity of the earth to produce vitaL renewabLe
resources must be maintained and whenever pra cticabLe re-
stored or improved.

PrincipLe No. 4

Man has a speciaL responsibiLity to safeguard and wiseLy
manage the her-4-tage of wiLdLife and its habitat which are
now graveLy imperiLLed by a combination of adverse factors.
Nature conservation incLuding wiLdLife must therefore re-
ceive importance in pLanning for economic deveLopment.
(Note: ALthough these principLes are not specific to the
probLem of marine sanctuaries, their intent is cLear.)

B-1

Recommendations arising from internationaL conferences

1. First WorLd Conference on NationaL Parks, SeattLe, Washington,
30 June - 7 JuLy, 1962

Recommendation No. 15

Whereas it is recognized that the oceans and their
teeming Life are subject to the same dangers of human
interference and destruction as the Land, that the sea
and Land are ecoLogicaLLy interdependent and indivisibLe,
that popuLation pressures wiLL cause man to turn increas-
ingLy to the sea, and especiaLLy to the underwater scene,
for recreation and spirituaL refreshment, and that the
preservation of unspoiLed marine habitat is urgentLy needed
for ethicaL and esthetic reasons, for the protection of
rare species, for the repLenishment of stocks of vaLuabLe
food species, and for the provision of undisturbed areas
for scientific research.

THE FIRST WORLD CONFERENCE ON NATIONAL PARKS invites
the Governments of aLL those countries having marine fron-
tiers, and other appropriate agencies, to examine as a
matter of urgency the possibiLity of creating marine parks
or reserves to defend underwater areas of speciaL signifi-
cance from aLL forms of human interference, and further
recommends the extension of existing nationaL parks and
equivaLent reserves with shoreLines, into the water to
the 10 fathom depth or the territoriaL Limit or some other
appropriate off-shore boundary.

2. RegionaL Symposium on Conservation of Nature - Reefs and Lagoons,
Noumea, New CaLedonia, 5-13 August, 1971

ResoLution No. 8

The Symposium:

Being concerned that the representative exampLes'of
marine environments shouLd be conserved for the benefit of
the isLand peoples and the worLd at Large because of their
scientific and educationaL vaLue and to ensure the survivaL
of species;

Recommends to aLL go vernments concerned that action be
taken to create a range of underwater reserves and marine
parks suitabLy and effectiveLy protected under appropriate
LegisLation.

B-2

3. ELeventh GeneraL AssembLy of the Inter,nationaL Union for the
Conseryation of Nature and NaturaL Resources (IUCN)e Banff,
ALberta, Canada, 16 September, 1972

ResoLution No. 11

WeLcoming the active interest in many parts of th e worLd,
notabLy the Caribbean, the Mediterranean, the Tanzanian and
Kenyan sectors of the East African coast, the Indian Ocean
IsLands, AustraLia and Sourh Africa, in the estabLishment and
effective management of marine and nationaL parks;

Noting that despite the prominence given to this issue
at the Symposium on Conservation in the South Pacific Region
heLd at Noumea in August 1971, the progress hi'therto made
in this matter in parts of the Pacific region is not yet
in keeping with their high scientific interest;

The 11th GeneraL AssembLy of IUCN meeting at Banff,
Canada in September 1972;

Urges governments concerned to promote the estabLish-
ment of marine parks and reserves;

And in particuLar urges the Government of FIJI to
take action in its archipeLago of exceptionaL interest,
where some of the reefs are under increasingLy destructive
pressure, and to give support to the efforts of the Na-
tionaL Trust of Fiji in arousing pubLic interest in this
matter.

4. Second WorLd Conference on NationaL Parks, Grand Teton NationaL Park,
Wyoming, USA, 22-27 September, 1972

Recommendation No. 4

RecaLLing Recommendation 15 of the First WorLd Confer-
ence on NationaL Parks urging that governments extend nationaL
parks and equivaLent reserves with shoreLines to appropriate
offshore boundaries;

Expressing-satisfaction at the action aLready taken by
some countries to estabLish marine nationaL parks and other
protected areas to conserve underwater habitats of speciaL
significance, and sites where the remains of past cuLtures
are to be found under the sea;

B-3

Being informed of action taken by IUCN to prepare
gu.ideLines for the estabLishment of marine nationaL parks
and other protected areas;

The Second WorLd Conference on NationaL Parks, meeting
at Grand Teton NationaL Park, USA, in September 1972;

Urges aLL governments concerned to set aside appropri-
ate marine areas as nationaL parks and reserves and to take
action to extend the boundaries of existing terrestriaL
nationaL parks and reserves to incLude representative ma-
rine ecosystems.

South Pacific Conference on NationaL Parks and Reserves, WeLLington,
New ZeaLand, 19-27 February, 1975

Recommendation No. 6

RecaLLing Recommendation 4 of the Second WorLd Confer-
ence on NationaL Parks (Grand Teton NationaL Park, USA,
September 1972) concerning the estabLishment of marine na-
tionat parks and reserves;

Recognizing that marine ecosystems are not easiLy
protected by nationaL parks and reserves covering Limited
areas, but that such protection requires a broad programme
of conservation measures;

Being concerned at the irreparabLe damage to coraL
reefs, Lagoons, mangrove forests and other marine sites
through poLLution, dredging, mining, Land recLamation,
dumping, dynamiting and other deLeterious methods of
fishing, sheLL coLLecting and other activities;

The South Pacific Conference on NationaL Parks and
Reserves meeting in WeLLington, New ZeaLand, on 27 Febru-
ary 1975;

Urges the Governments of the region to take immed.iate
action to controL these damaging factors;

Recommends--that action to conserve marine areas shouLd
incLude pLanning of coastaL areas and -controL of destructive
and disturbing activities both on shore and off shore;

Recommends aLso that the Governments of the region set
aside appropriate marine areas as nationaL parks and reserves
and take action to extend the boundaries of appropriate exist-
ing representative marine ecosystems;

e-4

And re.cQmmends furthero, that the executive administra-
tion and controL of such marine parks and reserves be vested
in the same authority that administers and controLs-terrestri.aL
nationaL parks and reserves.

6. RegionaL Meeting on Marine Parks and Reserves in the Northern
Indian Ocean IncLuding the Red Sea and the Persian GuLf;
Sponsored by the Department of the Environment of the ImperiaL
Government of Iran and the IUCN, with the support of the U.N.
EnvironmentaL Programme (UNEP) and the WorLd WiLdLife Fund
(WWF) and the co-sponsorship of the UNESCO, Tehran, Iran, 6-10
March, 1975.

GeneraL Recommendations

1. NationaL Parks and EquivaLent Reserves as an Integrated
Part of RegionaL DeveLopment of CoastaL and Marine Areas

Considering the ecoLogicaL and economic vaLues of coastaL
Lands as transitionaL areas between interacting terrestriaL
and marine ecosystems, incLuding a wide range of highLy pro-
cluctive renewabLe naturaL resources such as estuaries, man-
grove forests., sea-grass beds and coraL reefs, which are vitaL
as spawning grounds and nurseries for fish and invertebrates
which in turn at acluLt stages are the basis for commerciaLLy
important fisheries as weLL as being a condition of existence
for many other marine animaLs important as a protein resource;

ReaLizingthe unique physicaL characteristics of the
coastaL zone which make ita focaL point for settLement and
economic activity and that diverse activities on the often
congested coastaL areas tend to confLict with each other
and aLso interact and sometimes negativeLy infLuence a highLy
compLex and sensitive environment;

RecaLLing ResoLution 1802 (LV) of the United Nations
Economic and SociaL CounciL emphasizing the importance of an
interdiscipLinary approach in studying the probLems of coastaL
area cleveLopment, which impLies the importance of ecoLogicaL
considerations;

Convinced.-that deveLopment activities must. be under-
taken in accordance with sound ecoLogicaL principLes if max-
imum short-and Long-term benefits are to accrue to the peopLes
of the countries concerned;

B-5

RecaLLinq, aLso resoLutiQns concerned with mari ine parks
and reserves made by i 'nternationaL gatherings incLuding
Recommendation No. 15 of the F 'irst WorLd Conference on Na-
tionaL Parks CSeattLe, U.S.A., 1962), Recommendation No. 11
of the ELeventh GeneraL AssembLy of IUCN (Banff, Canada,
1972), Recommendation No. 4 of the Second WorLd Conference
on NationaL Parks (Grand Teton NationaL Park, U.S.A., 1972),
as weLL as those from regionaL meetings notabLy the RegionaL
Symposium on Conservation of Nature-Reefs and Lagoons (Noumea,
New CaLeclonia, 1971) and the Arab League EclucationaL, CuLturaL
and Scientific Organization (ALESCO) expert meeting (Jeddah,
Saudi Arabia, 1974) for representatives of the Red Sea and GuLf
of Aden countries on the Red Sea RegionaL Programme for En-
vironmentaL Studies;

Recognizing the usefuLness of a network of nationaL parks
and nature reperves as sampLes of naturaL ecosystems, biomes
and habitats for monitoring and comparison with areas infLu-
enced, aLtered or destroyed by human activities;

RecaLLing Project No. 8 of UNESCO Man and the Biosphere
Programme concerned with promoting the conservation of na-
turaL areas and genetic resources through the estabLishment
of a co-ordinated series of biosphere reserves;

The RegionaL Meeting on Marine Parks and Reserves in
the Northern Indian Ocean, heLd at Tehran, Iran, 6-10 March
1975;

Recommends to the Governments of the region and agencies
concerned;

1. That in aLL regionaL and nationaL cleveLopment pLa,n-
ning of coastaL and marine areas, surveys to identify charac-
teristic ecosystems, biomes and habitats of the region shouLd
be undertaken before any forms of Land and sea uses are de-
cided upon;

2. That regionaL and nationaL systems of nationaL parks
and equivaLent reserves be estabLished as soon as possibLe as
a resuLt of preceding surveys indicating cuLturaL, educationaL,
environmentaL and scientific vaLues, tourist potentiaL and
other features favourabLe to promoting the cleveLopment of the
region;

3. That such a regionaL system shouLd be integrated in
cleveLopment and management programmes at regionaL and nationaL
LeveLs.

B-6

2. Procedures Towards the PLanning and Management of RegionaL
and NationaL Systems of Marine Reserves

Considering that the LegaL steps towards the estabLishment of
marine reserves must necessariLy be foLLowed by adequate foLLow-up
actions and in particuLar take into account the foLLowing aspects:
(a) Existing and proposed cleveLopment pLans affecting coastaL
areas and other marine ecosystems, in particuLar Land and water use
patterns and their LikeLy evoLution insofar as they affect the phy-
sicaL and chemicaL properties of waters reaching the sea;

(b) Use of the best management tooLs in satisfying different
properties and functions of marine reserves such as monitoring,
productivity, tourism and recreation, and other uses;

(c) Dependence on a number of factors that are regionaL in
origin and scope and therefore require a regionaL approach for
management;

(d) Need to win the good wiLL and co-operation of LocaL
popuLations in the management of marine reserves;

The RegionaL Meeting on Marine Parks and Reserves in the Northern
Indian Ocean, heLd at Tehran, Iran, 6-10 March 1975:

Recommends to the Governments of the region:

1. That pLanning for marine parks and reserves shouLd be
considered as an integraL part of nationaL and regionaL Land-use
pLanning, and that nationaL Land-use pLanning teams shouLd incLude
experts in marine and wiLdLife affairs; the seLected marine parks
and reserves shouLd be pLanned by appropriate experts;

2. That adequate and periodicaLLy revised management pLans
be designed for each seLected reserve, taking into account the
evaLuation of new data and giving fuLL weight to changes among
interacting factors, new appraisaLs of uniqueness, depLeted faunaL
and fLoraL resources, interdependence with productivity and other
reLevant aspects;

3. That fuLL use is made of such management concepts and
tooLs as zoning, buffer zones, changes in jurisclictionaL status
as weLL as various-a-dministrative devices;

4. That methods for regionaL co-operation be devised in
those management aspects that necessariLy require a regionaL
approach;

s-7

5.' That ir-v achievi'ng these objectivest maximum coLLaboration
and participation be sought from LocaL popuLations, in particuLar
after such reserves have been estabLished.

3. Research and Monitoring

Considering that.research aspects reLated to marine reserves have
nationaL as weLL as regionaL-impLications and that there is a great
Lack of baseLine information on physico-chemicaL conditions, bioLogy,
productivity and poLLution and other degradations of marine environ-
ments;

Taking into account that there is a particuLar need for contin-
uous monitoring of environmentaL parameters and for environmentaL
impact studies, which can be carried out under particuLarLy desirabLe
conditions if there is an adequate network of stations, incLuding ma-
rine reserves, that are equipped for such activities; ,

The RegionaL Meeting on Marine Parks and Reserves in the Northern
Indian Ocean, heLd at Tehran, Iran, 6-10 March 1975:

Recommends to the Governments of the region and concerned inter-
nationaL organizations and institutions:

1. That marine research institutes, universities and other re-
search institutions be invoLved in setting up marine reserves where
research can be carried out, and be strengthened to coLLaborate in
the coLLection of baseLine information;

2. That continuing monitoring stations be estabLished making
fuLL use of marine reserves;

3. That every possibLe attempt be made to co-ordinate and
integrate such research and monitoring programmes through regionaL
centres equipped with mechanisms for retrievaL and dispersion of
the information gathered for the benefit of the region;

4. TechnicaL and FinanciaL Assistance

Considering that there wiLL be a growing need to estab Lish marine
parks and reserves and to promote research, pLanning, cleveLopment and
management programmi-s reLated to them, and that some countries of the
region might have to reLy on assistance in carrying out such programmes
that have regionaL and worLd-wicle impLications;

The RegionaL Meeting on Marine Parks and Reserves in the Northern
Indian Ocean, heLd at Tehran, Iran, 6-10 March 1975:

B-8

Recommends to the Governments of the region that they take fuLL
advantage of the technicaL assistance aLready avaiLabLe;

Recommends to the internationaL organizations concerned, in
particuLar those of the UN system, as weU as other assistance pro-
grammes and non-governmentaL institutions, that they step up their
technicaL assistance and provide the necessary financiaL support;
and

Recommends to the Governments of the.region that they encourage
programmes and activities based on mutuaL assistance within the region.

5. PubLic Awareness

Recognizing the impact marine nationaL parks may have upon the
sociaL, economic and poLiticaL base of a country;

Cons idering the need for pubLic and institutionaL acceptance
and understanding;

The RegionaL Meeting on Marine Parks and Reserves in the Northern
Indian Ocean, heLd at Tehran, Iran, 6-10 March 1975:

Recommends to the Governments of the region that they consider at
various stages of their pLanning programmes, efforts directed at inter-
est group participation and information dispersaL, particuLarLy in con-
nection with productivity, research, Living Laboratories, recreation
and other uses, through adequate production of audio-visuaL aids and
other tooLs in educationaL and interpretative programmes at aLL LeveLs.

6. Training of PersonneL for the Management of Marine Reserves

Considering that there is a need for trained personneL to under-
take pLanning, management, and cleveLopment of marine parks and reserves;

Taking into account that in the majority of aLready estabLished
marine parks and reserves there is a shortage of trained personneL at
aLL LeveLs;

The RegionaL Meeting on Marine Parks and Reserves in the Northern
Indian Ocean, heLd at Tehran, Iran, 6-10 March 1975:

Recommendsto the Governments of the region:

1. That existing nationaL training institutions (incorporating
various aspects of marine parks and reserves) be strengthened and
whereever necessary new institutions be estabLished; and

B-9

2.'- That the fuLLest use be made of existing faciLities and man-
power of other institutions on a regionaL or muLtinationaL basis.

B-10

Appendix C

Description and Distribution of Basic Estuarine
Sanctuaries by Biogeographic CLassification, In-
cLuding Proposed Sub-Categories

1. Acadian - Northeast AtLantic Coast, south to Cape Cod gLaciated shoreLine
subjected to winter icing; weLL deveLoped aLgaL fLora, boreaL biota;
Maine, New Hampshire, Massachusetts.

a. Rocky shore
b. Sandy shore

2. Virginian - MiddLe AtLantic Coast, from Cape Cod to Cape Hatteras; L owLand
streams, coastaL marshes and muddy bottoms; characteristics transitionaL
between 1 and 3; biota primariLy temperate with some boreaL representa-
tives; Massachusetts, Rhode IsLand, Connecticut, New York, New Jersey,
DeLaware, MaryLand, Virginia, and North CaroLina.

a. Northeast subregion, centered around Long Istand Sound;
b. South-centraL subregion, outer banks estuaries;
c. Fresh-water dominated systems: Chesapeake and DeLaware Bays.

3. CaroLinian South AtLantic Coast, from Cape Hatteras to Cape-Kennedy;
extensive marshes and swamps; waters turbid and productive; biota tem-
perate with seasonaL tropicaL eLements; North CaroLina, South CaroLirla,
Georgia, FLoricla.

4. West Indian - South FLoricla coast, from Cape Kennedy to Cedar Key; and
Caribbean IsLands; shoreLand Low-Lying Limestone; caLcareous sands,
marLs, and coraL reefs; coastaL marshes and mangroves; tropicaL biota;
FLoricla, Puerto Rico, Virgin IsLands.

a. ContinentaL
b. InsuLar

5. Louisianan - Northern GuLf of Mexico., from Cedar Key to Mexico; character-
istics of 3 with components of 4; strongLy infLuenced by terrigenous
factors; biota primariLy temperate. FLoricla, Mississippi, ALabama,
Louisiana, Texas.

a. Low energy-and cleLta
b. LagunaL

6. CaLifornian - South Pacific Coast from Mexico to Cape Mendocino; shoreLand
infLuenced by coastaL mountains; rocky coasts with reduced fresh-water
runoff; generaL absence of marshes and swamps; biota temperate. CaLifornia.

C-1

7. CoLumbian North Pacific Coast from Cape Mencloci.nQ to Canada; mountain-
eous shoreLand; rocky coasts; extensive aLgae communiti.es; biota pri-
mariLy temperate with some boreaL. CaLifornia,, Oregon, Washington.

a. CoastaL watershed;
b. Freshwater dominated with Large watershed: (Puget Sound
and CoLumbia River).

8. Fiords - South coast ALaska and ALeutians; precipitous mountains; deep
estuaries, some with gLaciers; shoreLine heaviLy indented and subject
to winter icing; biota boreaL to sub-Arctic; ALaska.

9. Sub-Arctic - West and.North coasts of ALaska; ice-stressed coasts;
biota Arctic and sub-Arctic; ALaska.

10. InsuLar-Larger IsLands (Pacific) - sometimes with precipitous mountain s;
considerabLe wave action; frequentLy with endemic species; Larger isLand
groups primariLy with tropicaL biota; Hawaii, Guam, American Samoa.

11. Great Lakes - Great Lakes of North America; bLuff-clune or rocky, gLaciated
shoreLine; Limited wetLands; freshwater onLy; biota a mixture of boreaL and
temperate species with anadromous species and some marine invaders;
Minnesota, Wisconsin, Michigan, ILLinois, Indiana, Ohio, PennsyLvania,
New York.

a. Dune, L owLand shores: Lakes Erie, Ontario, Huron
b. BLuff or rocky: Lakes Superior and Michigan

c-2

DATE DUE

GAYLORD No. 2333 PRINTED IN [email protected].

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